Petitioner seeking setting aside of the impugned order

  1. The present petition has been filed under Section 482 of the
    Code of Criminal Procedure, 1973 (‘Cr.P.C’) by the petitioner,
    seeking setting aside of the impugned order dated 16.11.2019 passed
    by learned Special Judge, Rouse Avenue Court, New Delhi (‘learned
    Trial Court’) in case titled as ‘CBI v. B. Sambi Reddy & Anr.‟,
    whereby the learned Trial Court had dismissed the application of the
    petitioner to summon relevant documents under Section 91 of Cr.P.C.
    Therefore, petitioner has preferred the present petition.
  2. Briefly stated, facts of the present case are that on 04.01.2015,
    CRL. M.C. 101/2019 Page 2 of 13
    CBI had registered a case bearing no. RC No. 217-2015 A
    0001/ACU-V under Section 7 of the Prevention of Corruption Act,
    1988, („PC Act‟), against the petitioner herein on the basis of
    complaint made by one Sh. K.V. Singh i.e., the complainant. It had
    been alleged that a case was under investigation against the
    complainant with CBI and for showing favour to the complainant in
    the ongoing investigation, the petitioner had demanded an amount of
    Rs. 25 lakhs as bribe from him, which had been later reduced to 10
    lakhs by the petitioner. As per the demand the bribe amount of Rs. 10
    lakhs had to be given to him in two instalments of Rs 5 lakhs each,
    first was to be given on 04.01.2015. Since the complainant was not
    willing to give the bribe, he had lodged a written complaint against
    the petitioner herein with SP, CBI, ACU-V, New Delhi for taking
    necessary legal action against him. Though, Rs. 5 lakhs had been
    demanded in first instalment, the complainant was only able to
    arrange Rs. 1 lakh. After that, on the receipt of aforementioned
    complaint CBI constituted, a Trap team including two independent
    witnesses and the accused was caught red-handed while demanding
    and accepting bribe amount of Rs. 1 lakh at Mayur Vihar, Delhi on
    04.01.2015.
  3. During interrogation, the petitioner had disclosed that he had
    demanded bribe on behalf of one Sh. Sanjay Jha, Investigating
    Officer in RC No. BD1/2013/E/002 dated 28.02.13 registered in BS
    &FC Delhi of CBI. The investigation disclosed that since the
    petitioner had demanded bribe from the complainant, who did not
    want to give bribe, therefore, the complainant had decided to record
    CRL. M.C. 101/2019 Page 3 of 13
    conversation of the petitioner on his mobile phone. During the said
    period, petitioner had made various calls on 14.12.2014,15.12.2014,
    16.12.2014, 22.12.2014, 29.12.2014 and 03.01.2015 for demanding
    bribe from the complainant. The investigation further disclosed that
    there was ample reliable evidence in the form of incriminating
    telephonic conversations between the present petitioner and the
    complainant, wherein it was established that the petitioner had
    demanded bribe from the complainant for showing him favour in the
    case investigated by CBI against him. After completion of
    investigation, CBI had filed a chargesheet on 03.03.15, against the
    petitioner and Sanjay Kumar Jha for offences punishable under
    Sections 120-B of IPC read with Section 7, 8 and 13(2), 13 (1)(d) of
    the PC Act, before the learned Trial Court. Thereafter, learned Trial
    Court had framed charges against the petitioner on 09.05.2016. The
    petitioner had moved an application under Section 91 of CrPC and
    the same was disposed of by the Ld. Trial Court vide impugned order
    dated. 16.11.2019.
  4. Learned Counsel appearing on behalf of the petitioner
    vehemently argues that the complainant in the year 2011 had been
    posted as Zonal Manager, North India Region of Dena Bank having
    his office at Panchkula, Haryana. It is submitted that during the said
    period various irregularities had been committed by the complainant
    and that the co-accused herein had recommended the complainants
    name for prosecution of the complainant of serious irregularities by
    misusing his official position. It is further submitted that earlier the
    petitioners had filed an application under Section 91 Cr.P.C, which
    CRL. M.C. 101/2019 Page 4 of 13
    the learned Special Judge, Karkardooma Court had allowed vide
    order dated 17.12.2018 for summoning the relevant documents as per
    application of the petitioner. Thereafter, vide order dated 15.04.2019
    the learned Trial Court had directed the IO and the accused to visit
    concerned court at Panchkula, Haryana and apply for certified copy
    of the same. However, upon examining of such documents petitioner
    had found out that the IO did not provide him certain relevant
    documents required to cross examine the complainant herein.
    Subsequently, petitioner had filed second application under Section
    91 Cr.P.C for summoning relevant documents required for cross
    examination of the complainant. The learned Trial Court vide
    impugned order dated 16.11.2019 without considering the relevancy
    of the documents required by the petitioner for cross examination of
    the complainant had dismissed the said application.
  5. Learned Counsel for the petitioner argues that at this stage of
    trial, it is relevant for the petitioner to examine certain documents
    related to the complainant, as the petitioner herein had filed a written
    complaint with the CBI to investigate into the irregularities by the
    complainant while he was the Zonal Manager at Dena Bank,
    Panchkula, Haryana. It is argued by the counsel for petitioner that
    these documents are important for the petitioner to examine so that
    questions can be put to the complainant at the stage of cross-
    examination.Learned Counsel for the petitioner has placed reliance
    on P. Ponnusamy v. State of Tamil Nadu 2022 SCC OnLine SC
    1543, Nitya Dharmananda v. Gopal Shellum Reddy (2018) 2 SCC
    93, Sanjev Narula v. Woodcrafts Furnishers 2023 SCC OnLine
    CRL. M.C. 101/2019 Page 5 of 13
    DEL 4381 and Sundar@Sundarrajan v. State by Inspector of Police
    2023 SCC Online SC 310.Therefore, learned counsel for the
    petitioner prays that the application filed under Section 91 of Cr.P.C.
    be allowed.
  6. On the other hand, learned Special Counsel for CBI opposes
    the present petition and submits that the petitioner is trying to delay
    the Trial by filing multiple applications under Section 91 of Cr.P.C
    despite being provided with all documents as requested vide order
    dated 15.04.2019. Learned Special Counsel submits that as per
    directions given by the learned Trial Court vide order dated
    15.04.2019, the IO had visited the concerned court at Panchkula and
    had filed application before the concerned Special Judge, CBI for
    inspection of court file with the assistance of the accused and the
    same had been allowed. Thereafter, the petitioner after inspecting the
    files and identifying the documents had applied for certified copies
    and the same had been provided to the petitioner. It is submitted that
    the right to seek documents is not an absolute right available to the
    accused persons. It is stated that the documents which are relied upon
    by the prosecution to make out a case against the petitioner have
    already been supplied to him and that it is settled law that at the stage
    of Prosecution Evidence accused can only rely upon the documents
    relied upon by the prosecution to prove its case beyond reasonable
    doubt. It is during the defence evidence stage, that the accused can
    request the summoning of documents that he believes to be essential
    to substantiate his case. Reliance has been placed on the judgment
    passed by thrHon‟ble Supreme Court in State of Orissa V. Debender
    CRL. M.C. 101/2019 Page 6 of 13
    Nath Padi, (2005) 1 SCC 568 and by this Court in Sukhmohindar
    Sandhu & Ors. V. CBI 2010 VII AD (Delhi) 617.
  7. This Court has heard arguments on behalf of the applicant as
    well as the state and has perused the material placed on record.
  8. This Court has perused order dated 17.12.2018 passed by
    learned Special Judge, Karkardooma Courts, Delhi, whereby
    application filed under Section 91 Cr.P.C by the petitioner was
    allowed by the Court. Relevant portion of the same is reproduced as
    under:
    “The IO of this case is hereby directed to confirm as to
    where the said 14 documents are at present and if they are
    part of the charge-sheet in the said case at Panchkula
    Court, CBI, being a party in the said case, is directed to
    apply for certified copies of those documents and produce
    the same on the next date of hearing before this Court or if
    the same are not part of the charge-sheet, the CBI is
    directed to produce the documents in the Court and copies
    of the same be supplied to the applicant/accused.
    The application stands disposed of….”.
  9. This Court has gone through order dated 15.04.2019 passed by
    learned Trial Court and the same is reproduced as under:
    “After considering the submissions it is deemedappropriate
    that accused B.Sambi Reddy be directed to go withthe
    concerned CBI officials to the concerned Court at
    Panchkula,Haryana, where the OBI official can file an
    application forinspection and inspect the court file with the
    assistance ofaccused so that the page number / number of
    the documentswhich were permitted to be supplied to the
    accused persons videorder dated 17.12.2018, can be noted
    and certified copies thereofcan be applied for and obtain
    by the CBI officials. LearnedAdditional PP CBI to ensure
    compliance by communicating thisorder to concerned SP
    so that 10/ HIO or any other official of CBIis deputed to
    coordinate with accused B.Sambi Reddy to inspectthe file
    pending before the CBI court at Panchkula, Haryana”
    .
    CRL. M.C. 101/2019 Page 7 of 13
  10. This Court has also gone through the impugned order dated
    16.11.2019 and the same is reproduced as under:
    “In view of the submissions, applicant/ accused
    wasdirected to go to the concerned Court at Panchkula,
    Haryana, withthe CBI officials, to find out the page
    number/ number ofdocuments which were permitted to be
    supplied to him.
    This Court was informed on 09.05.2019
    thatdocuments had been applied for. Later, certified copies
    wereobtained and supplied to applicant/ accused.
    However, applicant/accused thereafter filed another
    application u/s 91 CrPC which isunder consideration.
    Contrary to the submissions made by
    applicant/accused in the application, it appears that the
    copies of thedocuments, which were not supplied to him,
    were on account ofthe fact that the Copying Agency at
    Panchkula declined to supplythe same. Though applicant/
    accused has given details of thedocuments which he has
    not been supplied, he has failed tospecify whether the said
    documents fall within the list of 14
    documents, which were permitted to be supplied to him
    vide orderdated 17.12.2018. In any event majority of the
    documents whichapplicant/ accused had sought copies of,
    have already beensupplied to him and the remaining
    cannot be supplied to him as
    the Copying Agency of concerned Court has declined to do
    so andthe concerned branch of CBI is also not having
    copies thereof.
    Hence, it is deemed appropriate to dispose of the
    instantapplication u/s 91 CrPC filed on behalf of applicant/
    accused withobservation that in the event applicant/
    accused finds it necessaryto rely upon unavailable
    documents, to put forth in his defence, hemay summon the
    file from concerned Court, if he so desires.
    Application filed on behalf of applicant/ accused
    B.Sambi Reddy is disposed off accordingly.
    Be listed for cross-examination of PW-1 Sh.
    K.V.Singh on 16.12.2019 and 17.12.2019”.
  11. This Court notes that the petitioner herein requires summoning
    of certain relevant documents for the cross examination of the
    CRL. M.C. 101/2019 Page 8 of 13
    complainant, at the stage of Prosecution Evidence. For the said
    purpose it would be important for this Court to first reproduce and
    reiterate Section 91 of Cr.P.C:
    “Section 91:Summons to produce documents or other
    things:
    (1) Whenever any Court or any officer in charge of a
    police station considers that the production of any
    document or other thing is necessary or desirable for the
    purposes of any investigation, inquiry, trial or other
    proceeding under this Code by or before such Court or
    officer, such Court may issue a summons, or such officer
    a written order, to the person in whose possession or
    power such document or thing is believed to be, requiring
    him to attend and produce it, or to produce it, at the time
    and place stated in the summons or order.
    (2) Any person required under this section merely to
    produce a document or other thing shall be deemed to
    have complied with the requisition if he causes such
    document or thing to be produced instead of attending
    personally to produce the same.
    (3) Nothing in this section shall be deemed– (a) to affect
    sections 123 and 124 of the Indian Evidence Act, 1872 (1
    of 1872), or the Bankers Books Evidence Act, 1891 (13
    of 1891), or
    (b) to apply to a letter, postcard, telegram or other
    document or any parcel or thing in the custody of the
    postal or telegraph authority”
    .
  12. In the case of V.L.S. Finance Ltd. v. S.P. Gupta (2016) 3 SCC
    736, Hon‟ble Supreme Court has reiterated the scope and ambit of
    the said provision, the same is reproduced as under:
    “49. The scope and ambit of the said provision was
    considered in State of Orissa v. Debendra Nath
    Padhi [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][State of Orissa v. Debendra Nath Padhi, (2005) 1
    SCC 568 : 2005 SCC (Cri) 415] , wherein this Court has
    held thus : (SCC pp. 579-80, para 25)
    “25. … The first and foremost requirement of the
    section is about the document being necessary or
    desirable. The necessity or desirability would have to
    CRL. M.C. 101/2019 Page 9 of 13
    be seen with reference to the stage when a prayer is
    made for the production. If any document is necessary
    or desirable for the defence of the accused, the question
    of invoking Section 91 at the initial stage of framing of a
    charge would not arise since defence of the accused is not
    relevant at that stage. When the section refers to
    investigation, inquiry, trial or other proceedings, it is to
    be borne in mind that under the section a police officer
    may move the court for summoning and production of a
    document as may be necessary at any of the stages
    mentioned in the section. Insofar as the accused is
    concerned, his entitlement to seek order under Section
    91 would ordinarily not come till the stage of defence.
    When the section talks of the document being
    necessary and desirable, it is implicit that necessity
    and desirability is to be examined considering the
    stage when such a prayer for summoning and
    production is made and the party who makes it,
    whether police or accused. If under Section 227, what is
    necessary and relevant is only the record produced in
    terms of Section 173 of the Code, the accused cannot at
    that stage invoke Section 91 to seek production of any
    document to show his innocence. Under Section 91
    summons for production of document can be issued by
    court and under a written order an officer in charge of a
    police station can also direct production thereof. Section
    91 does not confer any right on the accused to produce
    document in his possession to prove his defence. Section
    91 presupposes that when the document is not produced
    process may be initiated to compel production thereof.”
    The aforesaid enunciation of law clearly states about
    the scope of Section 91 CrPC and we are in respectful
    agreement with the same”
    .
  13. A comprehensive analysis of Section 91 Cr.P.C, would reveal
    the following fundamental ingredients:
    I. Section 91 can be invoked for production of
    documents or other things by way of issuance of
    summons.
    II. Section 91 can be invoked at any stage of
    investigation, inquiry, trial, or other proceedings
    CRL. M.C. 101/2019 Page 10 of 13
    under the Cr.P.C.
    III. This invocation can take place when the Court or
    the Police deems the production of documents
    necessary or desirable for the purpose of
    investigation, inquiry, trial, or other proceedings
    under Cr.P.C.
    IV. The satisfaction regarding the necessity or
    desirability of the Court or the Police is essential for
    invoking this provision.
    V. The production of documents or other items is to be
    carried out before the Court if directed by the Court,
    or before the officer if directed by a Police Officer.
  14. This Court notes that in the instant case, the petitioner herein
    had first moved an application under Section 91 of the Cr.P.C and
    vide order dated 17.12.2018 the application was allowed and relevant
    documents were to be supplied to the petitioner. After that vide order
    dated 15.04.2019, learned Trial Court had directed the CBI to
    accompany the petitioner to the concerned Court and mark the
    relevant documents required by the petitioner and to supply the same
    to him after applying for the certified copies of the same. Thereafter,
    again petitioner preferred a second application under Section 91
    Cr.P.C seeking summoning of relevant documents to cross examine
    the complainant. It was further contended in the application that
    despite an order being passed in his favour, the IO had failed to
    supply relevant documents to the petitioner. Learned Trial Court vide
    impugned order dated 16.11.2019 had rejected the second application
    of the petitioner. Aggrieved by which the petitioner is before this
    Court seeking summoning of relevant documents as prayed for in his
    application and setting aside the impugned order dated 16.11.2019.
    CRL. M.C. 101/2019 Page 11 of 13
  15. It is the case of the petitioner that RC BD1/2013/E0002 had
    been registered in BS&FC New Delhi on 28.02.2013 against one Sh.
    Vijay Kumar Gupta and others. It was alleged in the said RC that the
    Directors of M/s HRM Exports Pvt. Ltd in connivance with the
    Branch Manager, Dena Bank, Panchkula Zone, had misused and
    diverted funds to the tune of Rs 29.94 crores and thereby defrauded
    the Dena Bank. At that time the complainant had been posted as
    Zonal Manager, North India Region of Dena Bank having office at
    Panchkula, Haryana and his role was looked into during the course of
    investigation of the said case, as he was instrumental, in the capacity
    of Regional Manager, Dena Bank, Panchkula in processing the
    proposal of M/s HRM Export Pvt. Ltd. It is the case of the petitioner
    that the co-accused i.e. Shri Sanjay Kumar Jha had recommended
    prosecution of the complainant in the present case and therefore it
    would be relevant to summon certain documents from the said case
    in order to cross examine the complainant and confront him with the
    said documents.
  16. This Court notes that the documents requested by the petitioner
    do not pertain to the case file or documents pertaining to the case
    registered against him, rather are a part of another case alleged to
    have been registered on the complaint of the co-accused against the
    complainant in the present case. On the other hand, it is the case of
    the CBI that said documents which have already been supplied to the
    petitioner are in no manner related to the case of the prosecution nor
    have been relied upon by the prosecution to prove its case beyond
    reasonable doubt. Even then by the orders of the learned Trial Court
    CRL. M.C. 101/2019 Page 12 of 13
    documents have been provided to the petitioner earlier. This only
    implies that the petitioner is trying to delay the Trial.
  17. This court observes that establishing the necessity of
    presenting documents is sin qua non for the petitioners to facilitate
    the further adjudication of the case. In the instant case, the petitioner
    does not contend that specific documents, crucial for the
    prosecution‟s assertion of its case beyond reasonable doubt, have not
    been disclosed. Instead, the petitioner seeks reference to another case
    purportedly filed against the complainant. In the court’s assessment,
    at this juncture when the Trial is at the stageof prosecution evidence,
    the petitioner has not successfully demonstrated to the satisfaction of
    this court why these documents are pertinent for examination at this
    stage. In case he needs them, he can file appropriate application
    before the concerned Court to be provided with certified copies of
    those documents as they pertain to another State and move
    appropriate Court of law there in case he fails to get the same.
  18. However, this Court notes that in the case of Manoj v. State of
    M.P. (2023) 2 SCC 353, the Hon‟ble Supreme Court has read the
    provision of Section 91 Cr.P.C along with Section 243 of Cr.P.C and
    the same is reproduced as under:
  19. ….In this context, a reading of Sections 91 and 243
    CrPC as done in Manu Sharma [Manu
    Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 :
    (2010) 2 SCC (Cri) 1385] , is important to refer to :
    (Manu Sharma case [Manu Sharma v. State (NCT of
    Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] , SCC
    p. 85, para 217)
    “217. … Section 91 empowers the court to
    summon production of any document or thing
    which the court considers necessary or
    CRL. M.C. 101/2019 Page 13 of 13
    desirable for the purposes of any investigation,
    inquiry, trial or another proceeding under the
    provisions of the Code. Where Section 91
    read with Section 243 says that if the accused
    is called upon to enter his defence and
    produce his evidence there he has also been
    given the right to apply to the court for
    issuance of process for compelling the
    attendance of any witness for the purpose of
    examination, cross-examination or the
    production of any document or other thing
    for which the court has to pass a reasoned
    order.”
  20. In view of the above, this Court is of the opinion that right of
    the petitioner to move an appropriate application before the
    competent court to summon documents be reserved and the
    documents which the petitioner wishes to rely upon can be
    summoned at the stage of defence evidence in accordance with law.
    At this stage, this Court finds no ground to interfere with the
    impugned order dated 16.11.2019 passed by learned Special Judge,
    Rouse Avenue Court, New Delhi.
  21. Accordingly, the present petition alongwith pending
    application, if any stands dismissed.
  22. It is however, clarified that thepetitioner will be at liberty to
    avail appropriate remedies at relevant stage of the trial in accordance
    with law before the competent court of law.
  23. The judgment be uploaded on the website forthwith.
    SWARANA KANTA SHARMA, J
    FEBURARY 5, 2024/zp
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