Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement? Bom HC decides

Bombay High Court: Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

Instant application under Section 482 of the Code of Criminal Procedure, 1973 challenged the order of the CBI which declined to direct investigator to produce the documents sought by the applicant (accused).

Factual Background

CBI registered a complaint against the applicant, Deputy Commissioner of Customs and others under Section 120-B of IPC and Section 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.

After completion of the investigation, charge-sheet was filed against the applicant and seven others. Whereafter, the applicant-accused approached the trial Court with the prayer that the entire material with the investigator which was not made part of the charge sheet, be summoned under Section 91 of the CrPC. Certain documents were sought for production by the applicant.

Application under Section 91 of the CrPC was moved at the stage of framing of charge wherein the applicant pleaded that production of aforesaid documents was necessary for proving the innocence of the applicant and also to assist this Court to decide the charges levelled against him.

Applicants Grounds:

Ground (aa): Documents as are necessary to substantiate his non-involvement and false implication in the present case and hence, he has right to claim copies of the documents as well as request the Court for production of documents as same should be brought before the Hon’ble Court in the interest of justice;

Ground (bb): That “Even at the stage of charge, the Court can consider the documents in favour of the applicant, which are of sterling quality and, therefore, such documents would assist the Court in framing the charge or discharging the applicant (emphasis supplied). Evidently, therefore, production of the documents was sought at the stage of framing charge, either for proving the innocence or for rebutting the charges levelled against him.

Question for Consideration:

Whether the accused has right to seek production of documents at the stage of framing charge, which are in custody of investigating agency, but were not produced along with the report?

Analysis, Law and Decision

Settled Law:

Although at the stage of framing of charge, the defence has no right to invoke Section 91 of the CrPC, yet, at the appropriate stage, the Court is empowered to summon production of such documents, which is not part of the charge-sheet but of sterling quality, which has been withheld by the investigator to ensure fair and impartial trial.

Applicant had sought production of about 23 documents. Except for the statement Custom Officer and Superintendent recorded under Section 161 CrPC, other documents or things were in the nature of reports submitted by the Investigating Officer to Supervisory Officer.

Such report submitted by the Investigating Officer to the Supervisory officer is stated to be ‘confidential’ document and it’s primary purpose is to apprise the Superior Officer and law officers of the CBI the result of the enquiries with a view to assess the merits and de-merits of a case and facilitate the passing of the final orders thereon by the Competent Authority.

Bench stated that, prosecution has rightly declined to produce the documents, which were in the nature of supervisory notes, of which the primary purpose was to apprise the superior officer, the result of investigation/enquiry before , “submitting the Final Report” in the Court.

Applicant sought directions to an investigator, to produce statements of two witnesses recorded by him under Section 161 of the Code of Criminal Procedure, 1973, by invoking Section 91 of the CrPC.

Thus, second question is:

Whether expression “Document or other thing” employed in Section 91 of the CrPC, includes a statement of witnesses recorded under Section 161(3) of the CrPC?

Section 91(1) of CrPC empowers the Court to direct production of any “document or other things”.

As per Section 161 of CrPC, police officer reduces into writing any statement made to him in the course of the investigation and the person whose statement is reduced into writing is not required to sign such document. Statement recorded by the police during the investigation is inadmissible in evidence and its’ only purpose is to contradict witness in the manner provided under Section 145 of the Indian Evidence Act, 1872. As against this, ‘document’ denotes any matter expressed upon any substance by means of letters intended to be used as evidence of that matter.

Documentary Evidence

Expression “Document” or other thing” used under Section 91 of the CrPC excludes statement of witness recorded under Section 161 of the CrPC.

Hence, application moved by the applicants under Section 91 of CrPC seeking directions to the investigator to produce statements of witnesses recorded under Section 161(3) of CrPC was not maintainable.

Expression “hearing his submissions” of the accused cannot mean the opportunity to file material but confined to material produced by the police in this case.

“…averments in application moved under section 91 as well as grounds taken up in the application before this Court clearly indicate and suggest that application was seeking production of documents for its consideration, while framing the charge which is not permissible, as this right, is not acknowledged in the Code.”

In view of the application was disposed of. [Mukesh P. Meena v. CBI, 2021 SCC OnLine Bom 4566, decided on 26-11-2021]

Advocates before the Court:

Mr Asutosh Shukla with Mr Pradosh Tiwari for the Applicant.

Mr K.S. Patil for the Respondent-CBI