MOTILAL VORA & Anr. V/s SUBRAMANIAN SWAMY & ANR

Delhi High Court (Single Judge)

CRL.M.C., 671,672,1317,13191321 of 2016, Judgment Date: Jul 12, 2016

Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 1 of 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 671/2016
Date of Decision: July 12th, 2016
MOTILAL VORA ..... Petitioner
Through Mr.R.S.Cheema, Sr. Adv. with
Ms.Tarannum Cheema, Ms.Hiral
Gupta, Mr.Manvendra Singh and
Mr.Harinder Bains, Advs.
versus
SUBRAMANIAN SWAMY & ANR. ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr.Rahul Mehra (Standing counsel)
with Mr.Amit Chadha, APP,
Mr.Amrit Singh, Mr.Shekhar
Budakoti & Mr.Jamal Akhtar, Advs.
WITH
+ CRL.M.C. 672/2016
YOUNG INDIAN ..... Petitioner
Through Ms.Rebecca John, Sr. Adv. with
Ms.Tarannum Cheema, Mr.Harsh
Bora, Ms.Nicy Paulson & Ms.Rudrani
Tyagi, Advs.
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 2 of 25
versus
SUBRAMANIAN SWAMY & ANR ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr.Rahul Mehra (Standing counsel)
with Mr.Amit Chadha, APP,
Mr.Amrit Singh, Mr.Shekhar
Budakoti & Mr.Jamal Akhtar, Advs.
WITH
+ CRL.M.C. 1317/2016
SAM PITRODA @ SATYANARAYAN GANGARAM PITRODA
..... Petitioner
Through Mr.Kapil Sibal, Sr. Adv. with
Mr.Devadatt Kamat, Mr.Adit Pujari &
Ms.Tarannum Cheema, Advs.
versus
DR.SURAMANIAN SWAMY & ANR ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr. Mr.Amit Chadha, APP.
WITH
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 3 of 25
+ CRL.M.C. 1319/2016
SUMAN DUBEY ..... Petitioner
Through Ms.Tarannum Cheema & Mr.Shikhar
Sareen, Advs.
versus
DR.SUBRAMANIAN SWAMY & ANR. ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr. Mr.Amit Chadha, APP.
AND
+ CRL.M.C. 1321/2016
OSCAR FERNANDES ..... Petitioner
Through Dr.A.M.Singhvi, Sr. Adv. with
Mr.Amit Bhandari, Ms.Tarannum
Cheema & Mr.Shikhar Sarin, Advs.
versus
SUBRAMANIAN SWAMY & ANR & ANR ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr. Mr.Amit Chadha, APP.
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 4 of 25
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. As both the impugned orders arise out of the same Criminal
Complaint bearing C.C. No.09/1/13 titled as “Subramaniam
Swamy v. Sonia Gandhi & others”, so all these petitions are being
taken together for decision.
2. The factual matrix is that a complaint for offences under
Sections 403, 406 and 420 IPC read with Section 120B of the IPC
was filed against the accused persons, namely, Sonia Gandhi @
Edvige Albina Antonia Maino, Rahul Gandhi, Motilal Vora, Oscar
Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram
Pitroda and Young Indian (hereinafter accused Motilal Vora, Oscar
Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram
Pitroda and Young Indian shall be referred to as “the petitioners”)
by the respondent No.1-Dr.Subramanian Swamy (hereinafter
referred to as “complainant”). It was alleged in the complaint that
the accused persons committed fraud, cheating and other offences
against All India Congress Committee (Congress Party) and The
Associated Journals Ltd. (AJL), who are the publishers of National
Herald newspaper, which was founded under the Chairmanship of
Sh.Jawarharlal Nehru. The AJL was closed and printing of
newspapers was terminated with unpaid debt of Rs.90 crores. On
23.11.2010, Young Indian Pvt. Ltd. was incorporated with Rs.5
lakh as paid up capital in which Ms.Sonia Gandhi and Sh.Rahul
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 5 of 25
Gandhi were having 38% shares each. A board resolution of
Young Indian Pvt. Ltd. was passed to own the debt of AJL after
obtaining interest free loan from the Congress Party. In a board
meeting, AJL agreed to transfer its entire share equity to Young
Indian Pvt. Ltd. for Rs.50 lakhs. Accused persons were claimed to
be the office bearers of the Congress Party. It was further alleged
that AJL was having assets worth Rs.2000 crores which became
the property of Young Indian Pvt. Ltd. for a mere Rs.50 lakhs and
in this way the public money given to the Congress Party which
was exempted from Income Tax Act, was used by the accused
persons for committing fraud, cheating, misappropriation and
criminal breach of trust.
3. The Trial Court summoned the accused persons on
26.06.2014 which was challenged before this Court by way of
filing the Crl.M.C. Nos.3332/2014, 3333/2014, 3335/2014,
3336/2014 & 2156/2015 and this Court was pleased to dismiss the
same vide order dated 07.12.2015. On the appearance of the
accused persons before the Trial Court on 19.12.2015, the process
of the trial began. During the pendency of pre-charge evidence, an
application under Section 91 of the Cr.P.C. was moved by the
complainant which was allowed vide impugned order dated
11.01.2016 by summoning the documents. Similarly, another
application under Section 91 of the Cr.P.C. was also moved by the
complainant which was allowed vide impugned order dated
11.03.2016 in which the directions were issued to summon the
balance sheets of Congress Party and AJL for the year 2010-11.
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 6 of 25
4. Feeling aggrieved by the impugned order dated 11.01.2016,
three petitions bearing Crl.M.C. Nos. 671/2016, 672/2016 and
1317/2016 have been filed by the petitioners, namely, Motilal
Vora, Young Indian and Sam Pitroda respectively. Feeling
aggrieved by the impugned order dated 11.03.2016, two petitions
bearing Crl.M.C. Nos.1319/2016 and 1321/2016 have been filed
by the petitioners, namely, Suman Dubey and Oscar Fernandes
respectively. Notice of the petitions was issued and the
complainant did not prefer to file any reply to the same.
5. Arguments advanced by the learned Senior Counsel for the
petitioners and the complainant have been heard at length.
6. Mr.Kapil Sibal, learned Senior Counsel for the petitioner-
Sam Pitroda argued that while considering the application under
Section 91 Cr.P.C., the Court is required to see the desirability and
necessity of the documents to be summoned, but in the present
case the Trial Court without ascertaining the necessity of the
documents ordered to summon them which is against the settled
principles of law. It was further argued that no notice of the
application for summoning the documents was given to the
petitioner though the petitioner was appearing before the Trial
Court. He vehemently argued that the order passed by the Trial
Court is without due application of mind and the application has
been allowed without giving any notice or opportunity of hearing
to the petitioner despite being available in the proceedings. In
support of the submissions made, judgments in the cases of
Sethuraman v. Rajamanickam (2009) 5 SCC 153; Alagesan and
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 7 of 25
others v. State (2008) Cri.L.J. 3300 (Madras); Pawan Duggal v.
State (2001) 59 DRJ 645; Om Parkash Sharma v. CBI (2000) 5
SCC 679; State of Orissa v. Debendra Nath Padi (2005) 1 SCC
568; Ravindra Kuman Chandolia v. CBI 2012 SCC Online Del
1263 and Chandgiram v. State 2012 SCC Online 1740 have been
relied upon.
7. Dr.A.M. Singhvi, learned Senior Counsel for the petitioner
Oscar Fernandes argued that the order passed by the Court below
is violative of natural justice as notice of the application was not
given to the petitioner though the petitioner was very much
participating in the proceedings and was available for that purpose.
Dr. Singhvi adopted the arguments advanced by Mr.Kapil Sibal,
learned Senior Counsel for the petitioner Sam Pitroda and further
argued that the order passed by the Court below is violative of
principle of natural justice as it demands the hearing of the
opposite party before issuance of the notice, particularly when the
order is a non-speaking order without dealing with necessity or
desirability of the documents summoned before passing the order.
He further referred to certain documents which have been ordered
to be summoned without showing any necessity or desirability. He
further demonstrated that even in the application necessity and
desirability has not been reflected.
8. Mr.R.S. Cheema, learned Senior Counsel appearing for the
petitioner Motilal Vora insisted upon the contention that the
complainant had not given any detail or contents of the documents
and their necessity and desirability. The complainant has also not
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 8 of 25
mentioned which of the document are to be proved through which
witness and he even did not mention the name of any witness. He
further argued that no notice of the application was given to the
petitioner and the impugned order was passed without giving an
opportunity of hearing to him. In support of these contentions, he
relied upon judgments in the case of Divine Retreat v. State of
Kerala & Ors. (2008) 3 SCC 542; State of Punjab v. Davinder Pal
Singh Bhullar & Ors. (2011) 14 SCC 770; Manharibhai
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel & Ors.
(2012) 10 SCC 517 and Olga Tellis & Ors. v. Bombay Municipal
Corporation & Ors. (1985) 3 SCC 545. The ratio of these
judgments is that a notice needs to be given to a person against
whom a proposed action is to be taken and that right of affording
opportunity of hearing is a principle of natural justice and it cannot
be denied.
9. Mr.Ramesh Gupta, learned Senior Counsel for the
petitioner-Suman Dubey also argued that while passing the
impugned order, the Court below has not given any notice to the
petitioner and thus violated the principle of natural justice. It was
further argued that Section 91 of the Cr.P.C. clearly mandates that
the necessity and desirability of the documents is to be gone
through by the Court while exercising the power under Section 91
Cr.P.C.
10. Ms.Rebecca John, learned Senior Counsel for the petitioner-
Young Indian Pvt. Ltd. adopted the arguments advanced by other
Senior Advocates for the petitioners and argued that the impugned
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 9 of 25
order deserves to be set aside and the matter be remanded back to
the Trial Court to decide afresh. Similarly, she also referred the
judgments in the cases of State of Bombay v. Janardhan and
others AIR 1960 Bom 513 and Niadar Singh v. Maman & others
2001 (57) DRJ 702.
11. The complainant appearing in person argued that Section 91
of the Cr.P.C. does not envisage the issuance of notice to the
opposite side and the power under Section 91 Cr.P.C. is vested
with the Court which the Court can exercise at any time during the
pendency of the trial. He further argued that permitting the
complainant to summon the documents itself demonstrates the
application of mind and implied necessity and desirability of the
documents. He further argued that the documents as per the
impugned orders have already been summoned and the
photocopies thereof have been kept in a sealed cover by the Trial
Court. He referred to judgments in the case of The Assistant
Collector of Customs, Bombay and another v. L.R. Melwani and
another AIR 1970 SC 962 and Express Newspapers Pvt. Ltd. and
others v. Union of India and others AIR 1986 SC 872.
12. On hearing the rival contentions of learned Senior Counsel
for the petitioners as well as the complainant, the question before
this Court to be decided is the scope and applicability of Section 91
of the Cr.P.C. and relative consideration at the time of passing the
impugned orders. It is necessary to deal with Section 91 of the
Cr.P.C., which reads as under :
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 10 of 25
“91. Summons to produce document or
other thing.
(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.”
13. The term “document” referred in Section 91 of the Cr.P.C. has
been taken from Section 3 of the Indian Evidence Act, which reads as
under:
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 11 of 25
“Documents” means any matter expressed
of described upon any substance by means
of letters, figures or marks, or by more than
one of those means, intended to be used, or
which may be used, for the purpose of
recording that matter.
From a reading of Section 91 of the Cr.P.C. and the term
“document” as per Section 3 of the Indian Evidence Act, it is clear
that the document means legally permissible document either in
the shape of original document or in the shape of copy duly
authenticated. It is apparent that the photocopy cannot be termed
as document as neither it is original nor it is authenticated without
any person authenticating the same. More the reason that the
photocopy cannot take the place of original document for proving
any particular fact or circumstance. Thus, the summoning of the
documents under Section 91 of the Cr.P.C. is summoning of the
original documents, particularly in the present case.
14. The other aspect is the applicability of Section 91 of the
Cr.P.C. which could be invoked during the pendency of the
investigation, inquiry, trial or any other proceedings under the
Code. The present case we are dealing with the trial of the
petitioners which is at the stage of pre-charge evidence.
Though, it is mentioned that power under Section 91 of the
Cr.P.C. could be invoked at any stage of the investigation, inquiry
or trial but it is still to be examined by the Court, the purpose and
the object of exercising the power envisaged under Section 91 of
the Cr.P.C. There could be various situations. Firstly, the
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 12 of 25
documents could be summoned at the instance of the prosecution
or the complainant to prove its case at the time of examination of
the prosecution witnesses and to get it exhibited and proved
through the witness who is under the oral examination. Similarly,
it could be summoned at the instance of defence to confront the
prosecution witnesses during cross-examination and similarly by
the defence at the time of leading the defence evidence to put to
the defence witnesses for the purpose of exhibition and
establishing its plea in the defence.
Apart from the same, the Court on its own can summon the
documents to clear any ambiguity or for the purpose of
clarification of any disputed fact or discrepancies in the documents
so exhibited by the prosecution/complainant or by the defence, in
other words for clarification for reaching a just decision.
In the present case, none of the situations discussed above
had arisen to summon the documents.
15. Learned Senior Counsel for the petitioners vehemently
argued that the orders passed in the present case do not reflect any
necessity or desirability. On this point, judgment in the case of
Ashok Chawla v. Ram Chander Garvan, Inspector CBI
MANU/DE/1243/2011 has been referred in which it was observed
that Section 91 Cr.P.C. provides that 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
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 13 of 25
issue a summons or such officer a written order, requiring the person
in whose possession or power such documents are believed to be to
attend and produce the same. On similar point, various other
judgments have also been relied upon :
(i) “The power given under Section 91 of the
code is a general and wide power which
empowers the court, the production of any
document or any other thing at any stage of
any investigation, inquiry or other
proceedings under the Code of Criminal
Procedure It is no doubt true that the
legislature has circumscribed this power to
be exercised only where the court considers
that the summoning of such document or
things was necessary or desirable in its view,
then the court could pass an order both in
favor of the accused as well as the
prosecution. It is no doubt true that such
power would not be exercised where the
documents or thing may not be found
relevant or it may be for the mere purpose or
delaying the proceedings or the order is
sought with an oblique motive.”
[Neelesh Jain v. State of
Rajasthan MANU/RH/0569/2005]
(ii) “As per Section 91 of the Code of Criminal
Procedure, when the Court considers that
production of any document is necessary or
desirable for the purpose of trial of a criminal
case, such Court may issue summons for the
production of the document sought for. The
Court has to judicially consider whether
production of the document is relevant for
the purpose of trial. Section 91 of the Code
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 14 of 25
of Criminal Procedure does not confer an
absolute right on the accused to seek for
production of any documents. The party who
prays for issuance of summons for
production of document has to necessarily
demonstrate before the Court that production
of such document is material for arriving at a
just decision in the case. If the petitioners
fail to establish that a particular document is
necessary and desirable to be summoned,
then the Court shall not summon the
document.”
[Alagesan and others v. State (2008) Cri.L.J. 3300
(Madras)]
(iii) “Section 91 Cr.PC envisages production of
any document or other thing which
according to the court or police officer in
charge of the police station is necessary or
desirable for the purpose of any
investigation, enquiry or trial or other
proceedings under the Code. The width of
the powers under this section is unlimited.
The only limitations are as regards to the
such documents or things to be necessary or
desirable for the purposes mentioned
therein. Though the case of Debendra Nath
Padhi (supra) pertained to the stage of
framing of charges and the Apex Court held
that at that stage, the case of production of
documents was not made out, but the plain
and literal reading of provisions of section
91 Cr.PC would reveal that the court was
empowered to order for production of
document or other thing only when that may
be necessary or desirable for the purpose of
enquiry, trial or other proceedings. The
court has to deal with this issue to satisfy
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 15 of 25
itself as regard to the necessity or
desirability of the documents sought to be
produced.”
[Ravindra Kuman Chandolia v. CBI 2012
SCC Online Del 1263]
(iv) “Any document or other thing envisaged
under the aforesaid provision can be ordered
to be produced on finding that the same is
'necessary or desirable for the purpose of
investigation, inquiry, trial or other
proceedings under the Code'. The first and
foremost requirement of the section is about
the document being necessary or desirable.
The necessity or desirability would have to
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…..
In so far as Section 91 is concerned, it was
rightly held that the width of the powers of
that section was unlimited but there were
inbuilt inherent limitations as to the stage or
point of time of its exercise,
commensurately with the nature of
proceedings as also the compulsions of
necessity and desirability, to fulfill the task
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 16 of 25
or achieve the object. Before the trial court
the stage was to find out whether there was
sufficient ground for proceeding to the next
stage against the accused….”
[State of Orissa v. Debendra Nath Padi
(2005) 1 SCC 568]
(v) “Section 91 Cr.P.C. envisages the
production of any document or other thing
which is required or desirable for the
purpose of any investigation, inquiry, trial or
other proceedings under the Code, if the
Court is satisfied that such documents are
essential and required at the relevant stage
of proceedings. For allowing the application
for production of documents or other things
under Section 91 Cr.P.C., the Court has to
deal with the issue of their necessity and
relevancy and also whether such documents
are required at the stage when they are
sought to be summoned by the applicant.
Summoning of documents cannot be
allowed on a mere asking by the applicant or
as a matter of routine. Section 294 Cr.PC
provided for admission/denial of the
documents filed in the Court by the
prosecution or the accused. It also provided
that where the genuineness of any document
is not disputed, such document may be read
in evidence in any inquiry trial or other
proceeding under this Code without proof of
the signature of the person to whom it
purports to be signed and that the court may,
in its discretion, require such signature to be
proved.”
[Chandgiram v. State 2012 SCC Online
1740]
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 17 of 25
16. The facts and circumstances in the present case show that
neither any list of witnesses has been furnished with proposed
testimony nor any list of documents has been furnished which were
to be exhibited through such witnesses to prove the fact and
establish the case of the complainant at the pre-charge stage. The
applications dated 02.01.2016 and 01.03.2016 have been filed in a
casual manner and the orders have been passed in a casual manner
without looking into the fact that no list of witnesses was furnished
and no summons have been issued for the purpose of summoning
the documents for proving a particular fact.
17. The other argument advanced by the learned Senior Counsel
for the petitioners is that the impugned orders passed in the present
case are violative of the principle of natural justice as the
petitioners were neither given any notice nor opportunity of
hearing was given to them before passing the impugned orders of
summoning the documents. It has been further argued that before
passing a judicial order by the Court it is imperative upon the
Court passing such order to issue notice to the opposite party or an
opportunity of hearing must be given before passing any such
order. It is not only a requirement under the principle of natural
justice but also non-hearing tantamount to violation of principle of
natural justice. On this point, various judgments have been relied
upon.
The Hon’ble Apex Court held that:
(i) “….No doubt every Court has its plenary
powers to deliberate upon every issue
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 18 of 25
agitated before it as well as any other issue
arising on the materials placed before it in
the manner known to law after giving a prior
notice and affording an opportunity of being
heard. This power of discharging the
statutory functions whether discretionary or
obligatory should be in the interest of justice
and confined within the legal permissibility.
In doing so, the Judge should disengage
himself of any irrelevant and extraneous
materials which come to his knowledge
from any source other than the one
presented before him in accordance with law
and which are likely to influence his mind
on one way or the other….”
[Union of India and another v. W.N.
Chadha AIR 1993 SC 1082]
(ii) “Very strangely, the High Court did not
even issue notice to the appellant/
complainant, on the spacious ground that the
production of the documents, which was
sought for by the accused, would cause no
prejudice to the appellant/complainant. We
fail to understand this logic. After all, if the
documents in possession of the appellant/
complainant, which were his personal
documents, sought for by the accused and
the production of which was rejected by the
Trial Court, and which were ordered to be
produced by the High Court, at least a
hearing should have been given to the
appellant/complainant. He could have
shown, firstly, that no such documents
existed or that there was no basis for the
production of those documents, particularly,
in view of the fact that he was not even
cross-examined in respect of those
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 19 of 25
documents. On this ground, the order of the
High Court would have to be set aside.”
[Sethuraman v. Rajamanickam (2009) 5
SCC 153]
(iii) “The order directing the investigation on the
basis of such vague and indefinite
allegations undoubtedly is in the teeth of
principles of natural justice. It was,
however, submitted that accused gets a right
of hearing only after submission of the
charge-sheet, before a charge is framed or
the accused is discharged vide Sections
227 & 228 and 239 and 240 Cr.P.C. The
appellant is not an accused and, therefore, it
was not entitled for any notice from the
High Court before passing of the impugned
order. We are concerned with the question
as to whether the High Court could have
passed a judicial order directing
investigation against the appellant and its
activities without providing an opportunity
of being heard to it. The case on hand is a
case where the criminal law is directed to be
set in motion on the basis of the allegations
made in anonymous petition filed in the
High Court. No judicial order can ever be
passed by any court without providing a
reasonable opportunity of being heard to the
person likely to be affected by such order
and particularly when such order results in
drastic consequences of affecting one s
own reputation. In our view, the impugned
order of the High Court directing enquiry
and investigation into allegations in respect
of which not even any complaint/
information has been lodged with the police
is violative of principles of natural justice.”
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 20 of 25
[Divine Retreat v. State of Kerala & Ors.
(2008) 3 SCC 542]
(iv) “If a judgment has been pronounced without
jurisdiction or in violation of principles of
natural justice or where the order has been
pronounced without giving an opportunity
of being heard to a party affected by it or
where an order was obtained by abuse of the
process of court which would really amount
to its being without jurisdiction, inherent
powers can be exercised to recall such order
for the reason that in such an eventuality the
order becomes a nullity and the provisions
of Section 362 Cr.P.C. would not operate. In
such eventuality, the judgment is manifestly
contrary to the audi alteram partem rule of
natural justice. The power of recall is
different from the power of altering/
reviewing the judgment. However, the party
seeking recall/alteration has to establish that
it was not at fault.”
[Davinder Pal Singh Bhullar & Ors. (2011)
14 SCC 770]
(v) “The proposition that notice need not be
given of a proposed action because, there
can possibly be no answer to it, is contrary
to the well-recognized understanding of the
real import of the rule of hearing. That
proposition overlooks that justice must not
only be done but must manifestly be seen to
be done and confuses one for the other. The
appearance of injustice is the denial of
justice. It is the dialogue with the person
likely to be affected by the proposed action
which meets the requirement that justice
must also be seen to be done. Procedural
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 21 of 25
safeguards have their historical origins in the
notion that conditions of personal freedom
can be preserved only when there is some
institutional check on arbitrary action on the
part of public authorities. The right to be
heard has two facets, intrinsic and
instrumental. The intrinsic value of that right
consists in the opportunity which it gives to
individuals or groups, against whom
decision taken by public authorities operate,
to participate in the processes by which
those decisions are made, an opportunity
that expresses their dignity as persons.”
[Olga Tellis & Ors. v. Bombay Municipal
Corporation & Ors. (1985) 3 SCC 545]
18. The rival contention by the complainant is that the notice is
not mandatory before passing the order under Section 91 of the
Cr.P.C. as it is the discretion of the Trial Court whether a particular
document should be summoned or not. He has referred to a
judgment in the case of Assistant Collector of Customs, Bombay
and another v. L.R. Melwani and another AIR 1970 SC 962 in
which it was observed as under :
“That apart we do not think that the High
Court was justified in interfering with the
discretion of the learned Magistrate Whether
a particular document should be summoned
or not is essentially in the discretion of the
trial court. In the instant case the Special
Public Prosecutor had assured the learned
trial Magistrate that he would keep in
readiness the statements of witnesses
recorded by the Customs authorities and
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 22 of 25
shall make avail able to the defence Counsel
the statement of the concerned witness as
and when he is examined. In view of that
assurance, the learned Magistrate observed
in his order:
"The recording of the prosecution evidence
is yet commence in this case and at present
there are no materials before me to decide
whether or not the production of any of the
statements and documents named by the
accused in his application is desirable or
necessary for the purpose of the enquiry or
trial. As stated at the outset, the learned
Special Prosecutor has given an undertaking
that he would produce all the relevant
statements and documents at the proper time
in the course of the heating of the case. The
request made for the issue of the summons
under Section 94, Criminal Procedure
Code is also omnibus."
The reasons given by the learned Magistrate
in support of his order are good reasons. The
High Court has not come to the conclusion
that the documents in question, if not
produced in court are likely to be destroyed
or tampered with or the same are not likely
to be made available when required. It has
proceeded on the erroneous basis that the
accused will not have a fair trial unless they
are supplied with the copies of those
statements even before the enquiry
commences. Except for very good reasons,
the High Court should not interfere with the
discretion conferred on the trial courts in the
matter of summoning documents. Such
interferences would unnecessarily impede
the progress of eases and result in waste of
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 23 of 25
public money and time as has happened in
this case.”
The other judgment relied upon by the complainant is in the
case of Express Newspapers Pvt. Ltd. and others v. Union of
India and others AIR 1986 SC 872. Apparently, this judgment is
not having any relevance with Section 91 of the Cr.P.C.
19. The argument advanced by the complainant cannot be taken
into consideration in isolation and it needs to be considered with
the combined effect of the exercise of the power under Section 91
of the Cr.P.C. The facts narrated on record do not demonstrate the
exercise of discretion under Section 91 of the Cr.P.C. in any other
circumstance except to facilitate the evidence of the complainant.
No question arises to look into the present case of exercising the
power under Section 91 of the Cr.P.C. to summon the document
except to render assistance and to facilitate the complainant
evidence against the petitioners. In such a scenario, the plea of the
complainant appreciating the order passed by the Trial Court
without giving any notice or opportunity of hearing to the opposite
side that too in a criminal case, would tantamount not only to the
violation of principle of natural justice but also to the violation of
Article 21 of the Constitution of India.
20. Apart from the discussion made above, it is apparent from
the arguments advanced that no list of witnesses or list of
documents showing its connectivity with the witnesses or to the
facts to be established before the Trial Court cannot be treated as
proper application for rendering assistance to the Court to facilitate
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 24 of 25
the evidence by way of seeking documents without demonstrating
any necessity or desirability. The applications were moved in a
casual manner and the orders passed on the same were also passed
in a casual manner without due application of mind. The facts and
circumstances mentioned above, non-issuance of notice to the
opposite side and impugned orders being non-speaking and
without due application of mind as per the law laid down by
Hon’ble Apex Court, culminates into the impugned orders as
ineffective, redundant and not sustainable in the eye of law and
liable to be set aside.
21. In view of the above discussion and the law laid down as
referred above, this Court is of the considered opinion that while
passing the order under Section 91 Cr.P.C. for summoning the
documents, if the other party has already joined the proceedings, it
is entitled to be heard. Consequently, the orders dated 11.01.2016
and 11.03.2016 are hereby set aside along with proceedings
consequent thereto.
22. Undisputedly, the complainant always has a right to invoke
the provision of Section 91 Cr.P.C. and the Court is always
empowered to pass an order in the facts the circumstances of the
case, keeping in view the necessity and desirability of the
document in situations as discussed above and giving due
opportunity of hearing to the other party.
23. However, it is made clear that the right of the complainant
shall not be curtailed in any circumstance to move the fresh
application during the pendency of the proceedings before the
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 25 of 25
Court below.
24. The petitions and applications, if any, are disposed of
accordingly.
(P.S.TEJI)
JUDGE
JULY 12, 2016
ddCrl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 1 of 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 671/2016
Date of Decision: July 12th, 2016
MOTILAL VORA ..... Petitioner
Through Mr.R.S.Cheema, Sr. Adv. with
Ms.Tarannum Cheema, Ms.Hiral
Gupta, Mr.Manvendra Singh and
Mr.Harinder Bains, Advs.
versus
SUBRAMANIAN SWAMY & ANR. ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr.Rahul Mehra (Standing counsel)
with Mr.Amit Chadha, APP,
Mr.Amrit Singh, Mr.Shekhar
Budakoti & Mr.Jamal Akhtar, Advs.
WITH
+ CRL.M.C. 672/2016
YOUNG INDIAN ..... Petitioner
Through Ms.Rebecca John, Sr. Adv. with
Ms.Tarannum Cheema, Mr.Harsh
Bora, Ms.Nicy Paulson & Ms.Rudrani
Tyagi, Advs.
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 2 of 25
versus
SUBRAMANIAN SWAMY & ANR ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr.Rahul Mehra (Standing counsel)
with Mr.Amit Chadha, APP,
Mr.Amrit Singh, Mr.Shekhar
Budakoti & Mr.Jamal Akhtar, Advs.
WITH
+ CRL.M.C. 1317/2016
SAM PITRODA @ SATYANARAYAN GANGARAM PITRODA
..... Petitioner
Through Mr.Kapil Sibal, Sr. Adv. with
Mr.Devadatt Kamat, Mr.Adit Pujari &
Ms.Tarannum Cheema, Advs.
versus
DR.SURAMANIAN SWAMY & ANR ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr. Mr.Amit Chadha, APP.
WITH
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 3 of 25
+ CRL.M.C. 1319/2016
SUMAN DUBEY ..... Petitioner
Through Ms.Tarannum Cheema & Mr.Shikhar
Sareen, Advs.
versus
DR.SUBRAMANIAN SWAMY & ANR. ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr. Mr.Amit Chadha, APP.
AND
+ CRL.M.C. 1321/2016
OSCAR FERNANDES ..... Petitioner
Through Dr.A.M.Singhvi, Sr. Adv. with
Mr.Amit Bhandari, Ms.Tarannum
Cheema & Mr.Shikhar Sarin, Advs.
versus
SUBRAMANIAN SWAMY & ANR & ANR ..... Respondent
Through Dr.Subramanian Swamy with
Ms.Roxna Swamy, Mr.Ishkaran Singh
Bhandari & Ms.Sonia V. Madan,
Advs.
Mr. Mr.Amit Chadha, APP.
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 4 of 25
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. As both the impugned orders arise out of the same Criminal
Complaint bearing C.C. No.09/1/13 titled as “Subramaniam
Swamy v. Sonia Gandhi & others”, so all these petitions are being
taken together for decision.
2. The factual matrix is that a complaint for offences under
Sections 403, 406 and 420 IPC read with Section 120B of the IPC
was filed against the accused persons, namely, Sonia Gandhi @
Edvige Albina Antonia Maino, Rahul Gandhi, Motilal Vora, Oscar
Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram
Pitroda and Young Indian (hereinafter accused Motilal Vora, Oscar
Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram
Pitroda and Young Indian shall be referred to as “the petitioners”)
by the respondent No.1-Dr.Subramanian Swamy (hereinafter
referred to as “complainant”). It was alleged in the complaint that
the accused persons committed fraud, cheating and other offences
against All India Congress Committee (Congress Party) and The
Associated Journals Ltd. (AJL), who are the publishers of National
Herald newspaper, which was founded under the Chairmanship of
Sh.Jawarharlal Nehru. The AJL was closed and printing of
newspapers was terminated with unpaid debt of Rs.90 crores. On
23.11.2010, Young Indian Pvt. Ltd. was incorporated with Rs.5
lakh as paid up capital in which Ms.Sonia Gandhi and Sh.Rahul
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 5 of 25
Gandhi were having 38% shares each. A board resolution of
Young Indian Pvt. Ltd. was passed to own the debt of AJL after
obtaining interest free loan from the Congress Party. In a board
meeting, AJL agreed to transfer its entire share equity to Young
Indian Pvt. Ltd. for Rs.50 lakhs. Accused persons were claimed to
be the office bearers of the Congress Party. It was further alleged
that AJL was having assets worth Rs.2000 crores which became
the property of Young Indian Pvt. Ltd. for a mere Rs.50 lakhs and
in this way the public money given to the Congress Party which
was exempted from Income Tax Act, was used by the accused
persons for committing fraud, cheating, misappropriation and
criminal breach of trust.
3. The Trial Court summoned the accused persons on
26.06.2014 which was challenged before this Court by way of
filing the Crl.M.C. Nos.3332/2014, 3333/2014, 3335/2014,
3336/2014 & 2156/2015 and this Court was pleased to dismiss the
same vide order dated 07.12.2015. On the appearance of the
accused persons before the Trial Court on 19.12.2015, the process
of the trial began. During the pendency of pre-charge evidence, an
application under Section 91 of the Cr.P.C. was moved by the
complainant which was allowed vide impugned order dated
11.01.2016 by summoning the documents. Similarly, another
application under Section 91 of the Cr.P.C. was also moved by the
complainant which was allowed vide impugned order dated
11.03.2016 in which the directions were issued to summon the
balance sheets of Congress Party and AJL for the year 2010-11.
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 6 of 25
4. Feeling aggrieved by the impugned order dated 11.01.2016,
three petitions bearing Crl.M.C. Nos. 671/2016, 672/2016 and
1317/2016 have been filed by the petitioners, namely, Motilal
Vora, Young Indian and Sam Pitroda respectively. Feeling
aggrieved by the impugned order dated 11.03.2016, two petitions
bearing Crl.M.C. Nos.1319/2016 and 1321/2016 have been filed
by the petitioners, namely, Suman Dubey and Oscar Fernandes
respectively. Notice of the petitions was issued and the
complainant did not prefer to file any reply to the same.
5. Arguments advanced by the learned Senior Counsel for the
petitioners and the complainant have been heard at length.
6. Mr.Kapil Sibal, learned Senior Counsel for the petitioner-
Sam Pitroda argued that while considering the application under
Section 91 Cr.P.C., the Court is required to see the desirability and
necessity of the documents to be summoned, but in the present
case the Trial Court without ascertaining the necessity of the
documents ordered to summon them which is against the settled
principles of law. It was further argued that no notice of the
application for summoning the documents was given to the
petitioner though the petitioner was appearing before the Trial
Court. He vehemently argued that the order passed by the Trial
Court is without due application of mind and the application has
been allowed without giving any notice or opportunity of hearing
to the petitioner despite being available in the proceedings. In
support of the submissions made, judgments in the cases of
Sethuraman v. Rajamanickam (2009) 5 SCC 153; Alagesan and
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 7 of 25
others v. State (2008) Cri.L.J. 3300 (Madras); Pawan Duggal v.
State (2001) 59 DRJ 645; Om Parkash Sharma v. CBI (2000) 5
SCC 679; State of Orissa v. Debendra Nath Padi (2005) 1 SCC
568; Ravindra Kuman Chandolia v. CBI 2012 SCC Online Del
1263 and Chandgiram v. State 2012 SCC Online 1740 have been
relied upon.
7. Dr.A.M. Singhvi, learned Senior Counsel for the petitioner
Oscar Fernandes argued that the order passed by the Court below
is violative of natural justice as notice of the application was not
given to the petitioner though the petitioner was very much
participating in the proceedings and was available for that purpose.
Dr. Singhvi adopted the arguments advanced by Mr.Kapil Sibal,
learned Senior Counsel for the petitioner Sam Pitroda and further
argued that the order passed by the Court below is violative of
principle of natural justice as it demands the hearing of the
opposite party before issuance of the notice, particularly when the
order is a non-speaking order without dealing with necessity or
desirability of the documents summoned before passing the order.
He further referred to certain documents which have been ordered
to be summoned without showing any necessity or desirability. He
further demonstrated that even in the application necessity and
desirability has not been reflected.
8. Mr.R.S. Cheema, learned Senior Counsel appearing for the
petitioner Motilal Vora insisted upon the contention that the
complainant had not given any detail or contents of the documents
and their necessity and desirability. The complainant has also not
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 8 of 25
mentioned which of the document are to be proved through which
witness and he even did not mention the name of any witness. He
further argued that no notice of the application was given to the
petitioner and the impugned order was passed without giving an
opportunity of hearing to him. In support of these contentions, he
relied upon judgments in the case of Divine Retreat v. State of
Kerala & Ors. (2008) 3 SCC 542; State of Punjab v. Davinder Pal
Singh Bhullar & Ors. (2011) 14 SCC 770; Manharibhai
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel & Ors.
(2012) 10 SCC 517 and Olga Tellis & Ors. v. Bombay Municipal
Corporation & Ors. (1985) 3 SCC 545. The ratio of these
judgments is that a notice needs to be given to a person against
whom a proposed action is to be taken and that right of affording
opportunity of hearing is a principle of natural justice and it cannot
be denied.
9. Mr.Ramesh Gupta, learned Senior Counsel for the
petitioner-Suman Dubey also argued that while passing the
impugned order, the Court below has not given any notice to the
petitioner and thus violated the principle of natural justice. It was
further argued that Section 91 of the Cr.P.C. clearly mandates that
the necessity and desirability of the documents is to be gone
through by the Court while exercising the power under Section 91
Cr.P.C.
10. Ms.Rebecca John, learned Senior Counsel for the petitioner-
Young Indian Pvt. Ltd. adopted the arguments advanced by other
Senior Advocates for the petitioners and argued that the impugned
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 9 of 25
order deserves to be set aside and the matter be remanded back to
the Trial Court to decide afresh. Similarly, she also referred the
judgments in the cases of State of Bombay v. Janardhan and
others AIR 1960 Bom 513 and Niadar Singh v. Maman & others
2001 (57) DRJ 702.
11. The complainant appearing in person argued that Section 91
of the Cr.P.C. does not envisage the issuance of notice to the
opposite side and the power under Section 91 Cr.P.C. is vested
with the Court which the Court can exercise at any time during the
pendency of the trial. He further argued that permitting the
complainant to summon the documents itself demonstrates the
application of mind and implied necessity and desirability of the
documents. He further argued that the documents as per the
impugned orders have already been summoned and the
photocopies thereof have been kept in a sealed cover by the Trial
Court. He referred to judgments in the case of The Assistant
Collector of Customs, Bombay and another v. L.R. Melwani and
another AIR 1970 SC 962 and Express Newspapers Pvt. Ltd. and
others v. Union of India and others AIR 1986 SC 872.
12. On hearing the rival contentions of learned Senior Counsel
for the petitioners as well as the complainant, the question before
this Court to be decided is the scope and applicability of Section 91
of the Cr.P.C. and relative consideration at the time of passing the
impugned orders. It is necessary to deal with Section 91 of the
Cr.P.C., which reads as under :
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 10 of 25
“91. Summons to produce document or
other thing.
(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.”
13. The term “document” referred in Section 91 of the Cr.P.C. has
been taken from Section 3 of the Indian Evidence Act, which reads as
under:
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 11 of 25
“Documents” means any matter expressed
of described upon any substance by means
of letters, figures or marks, or by more than
one of those means, intended to be used, or
which may be used, for the purpose of
recording that matter.
From a reading of Section 91 of the Cr.P.C. and the term
“document” as per Section 3 of the Indian Evidence Act, it is clear
that the document means legally permissible document either in
the shape of original document or in the shape of copy duly
authenticated. It is apparent that the photocopy cannot be termed
as document as neither it is original nor it is authenticated without
any person authenticating the same. More the reason that the
photocopy cannot take the place of original document for proving
any particular fact or circumstance. Thus, the summoning of the
documents under Section 91 of the Cr.P.C. is summoning of the
original documents, particularly in the present case.
14. The other aspect is the applicability of Section 91 of the
Cr.P.C. which could be invoked during the pendency of the
investigation, inquiry, trial or any other proceedings under the
Code. The present case we are dealing with the trial of the
petitioners which is at the stage of pre-charge evidence.
Though, it is mentioned that power under Section 91 of the
Cr.P.C. could be invoked at any stage of the investigation, inquiry
or trial but it is still to be examined by the Court, the purpose and
the object of exercising the power envisaged under Section 91 of
the Cr.P.C. There could be various situations. Firstly, the
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 12 of 25
documents could be summoned at the instance of the prosecution
or the complainant to prove its case at the time of examination of
the prosecution witnesses and to get it exhibited and proved
through the witness who is under the oral examination. Similarly,
it could be summoned at the instance of defence to confront the
prosecution witnesses during cross-examination and similarly by
the defence at the time of leading the defence evidence to put to
the defence witnesses for the purpose of exhibition and
establishing its plea in the defence.
Apart from the same, the Court on its own can summon the
documents to clear any ambiguity or for the purpose of
clarification of any disputed fact or discrepancies in the documents
so exhibited by the prosecution/complainant or by the defence, in
other words for clarification for reaching a just decision.
In the present case, none of the situations discussed above
had arisen to summon the documents.
15. Learned Senior Counsel for the petitioners vehemently
argued that the orders passed in the present case do not reflect any
necessity or desirability. On this point, judgment in the case of
Ashok Chawla v. Ram Chander Garvan, Inspector CBI
MANU/DE/1243/2011 has been referred in which it was observed
that Section 91 Cr.P.C. provides that 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
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 13 of 25
issue a summons or such officer a written order, requiring the person
in whose possession or power such documents are believed to be to
attend and produce the same. On similar point, various other
judgments have also been relied upon :
(i) “The power given under Section 91 of the
code is a general and wide power which
empowers the court, the production of any
document or any other thing at any stage of
any investigation, inquiry or other
proceedings under the Code of Criminal
Procedure It is no doubt true that the
legislature has circumscribed this power to
be exercised only where the court considers
that the summoning of such document or
things was necessary or desirable in its view,
then the court could pass an order both in
favor of the accused as well as the
prosecution. It is no doubt true that such
power would not be exercised where the
documents or thing may not be found
relevant or it may be for the mere purpose or
delaying the proceedings or the order is
sought with an oblique motive.”
[Neelesh Jain v. State of
Rajasthan MANU/RH/0569/2005]
(ii) “As per Section 91 of the Code of Criminal
Procedure, when the Court considers that
production of any document is necessary or
desirable for the purpose of trial of a criminal
case, such Court may issue summons for the
production of the document sought for. The
Court has to judicially consider whether
production of the document is relevant for
the purpose of trial. Section 91 of the Code
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 14 of 25
of Criminal Procedure does not confer an
absolute right on the accused to seek for
production of any documents. The party who
prays for issuance of summons for
production of document has to necessarily
demonstrate before the Court that production
of such document is material for arriving at a
just decision in the case. If the petitioners
fail to establish that a particular document is
necessary and desirable to be summoned,
then the Court shall not summon the
document.”
[Alagesan and others v. State (2008) Cri.L.J. 3300
(Madras)]
(iii) “Section 91 Cr.PC envisages production of
any document or other thing which
according to the court or police officer in
charge of the police station is necessary or
desirable for the purpose of any
investigation, enquiry or trial or other
proceedings under the Code. The width of
the powers under this section is unlimited.
The only limitations are as regards to the
such documents or things to be necessary or
desirable for the purposes mentioned
therein. Though the case of Debendra Nath
Padhi (supra) pertained to the stage of
framing of charges and the Apex Court held
that at that stage, the case of production of
documents was not made out, but the plain
and literal reading of provisions of section
91 Cr.PC would reveal that the court was
empowered to order for production of
document or other thing only when that may
be necessary or desirable for the purpose of
enquiry, trial or other proceedings. The
court has to deal with this issue to satisfy
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 15 of 25
itself as regard to the necessity or
desirability of the documents sought to be
produced.”
[Ravindra Kuman Chandolia v. CBI 2012
SCC Online Del 1263]
(iv) “Any document or other thing envisaged
under the aforesaid provision can be ordered
to be produced on finding that the same is
'necessary or desirable for the purpose of
investigation, inquiry, trial or other
proceedings under the Code'. The first and
foremost requirement of the section is about
the document being necessary or desirable.
The necessity or desirability would have to
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…..
In so far as Section 91 is concerned, it was
rightly held that the width of the powers of
that section was unlimited but there were
inbuilt inherent limitations as to the stage or
point of time of its exercise,
commensurately with the nature of
proceedings as also the compulsions of
necessity and desirability, to fulfill the task
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 16 of 25
or achieve the object. Before the trial court
the stage was to find out whether there was
sufficient ground for proceeding to the next
stage against the accused….”
[State of Orissa v. Debendra Nath Padi
(2005) 1 SCC 568]
(v) “Section 91 Cr.P.C. envisages the
production of any document or other thing
which is required or desirable for the
purpose of any investigation, inquiry, trial or
other proceedings under the Code, if the
Court is satisfied that such documents are
essential and required at the relevant stage
of proceedings. For allowing the application
for production of documents or other things
under Section 91 Cr.P.C., the Court has to
deal with the issue of their necessity and
relevancy and also whether such documents
are required at the stage when they are
sought to be summoned by the applicant.
Summoning of documents cannot be
allowed on a mere asking by the applicant or
as a matter of routine. Section 294 Cr.PC
provided for admission/denial of the
documents filed in the Court by the
prosecution or the accused. It also provided
that where the genuineness of any document
is not disputed, such document may be read
in evidence in any inquiry trial or other
proceeding under this Code without proof of
the signature of the person to whom it
purports to be signed and that the court may,
in its discretion, require such signature to be
proved.”
[Chandgiram v. State 2012 SCC Online
1740]
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 17 of 25
16. The facts and circumstances in the present case show that
neither any list of witnesses has been furnished with proposed
testimony nor any list of documents has been furnished which were
to be exhibited through such witnesses to prove the fact and
establish the case of the complainant at the pre-charge stage. The
applications dated 02.01.2016 and 01.03.2016 have been filed in a
casual manner and the orders have been passed in a casual manner
without looking into the fact that no list of witnesses was furnished
and no summons have been issued for the purpose of summoning
the documents for proving a particular fact.
17. The other argument advanced by the learned Senior Counsel
for the petitioners is that the impugned orders passed in the present
case are violative of the principle of natural justice as the
petitioners were neither given any notice nor opportunity of
hearing was given to them before passing the impugned orders of
summoning the documents. It has been further argued that before
passing a judicial order by the Court it is imperative upon the
Court passing such order to issue notice to the opposite party or an
opportunity of hearing must be given before passing any such
order. It is not only a requirement under the principle of natural
justice but also non-hearing tantamount to violation of principle of
natural justice. On this point, various judgments have been relied
upon.
The Hon’ble Apex Court held that:
(i) “….No doubt every Court has its plenary
powers to deliberate upon every issue
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 18 of 25
agitated before it as well as any other issue
arising on the materials placed before it in
the manner known to law after giving a prior
notice and affording an opportunity of being
heard. This power of discharging the
statutory functions whether discretionary or
obligatory should be in the interest of justice
and confined within the legal permissibility.
In doing so, the Judge should disengage
himself of any irrelevant and extraneous
materials which come to his knowledge
from any source other than the one
presented before him in accordance with law
and which are likely to influence his mind
on one way or the other….”
[Union of India and another v. W.N.
Chadha AIR 1993 SC 1082]
(ii) “Very strangely, the High Court did not
even issue notice to the appellant/
complainant, on the spacious ground that the
production of the documents, which was
sought for by the accused, would cause no
prejudice to the appellant/complainant. We
fail to understand this logic. After all, if the
documents in possession of the appellant/
complainant, which were his personal
documents, sought for by the accused and
the production of which was rejected by the
Trial Court, and which were ordered to be
produced by the High Court, at least a
hearing should have been given to the
appellant/complainant. He could have
shown, firstly, that no such documents
existed or that there was no basis for the
production of those documents, particularly,
in view of the fact that he was not even
cross-examined in respect of those
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 19 of 25
documents. On this ground, the order of the
High Court would have to be set aside.”
[Sethuraman v. Rajamanickam (2009) 5
SCC 153]
(iii) “The order directing the investigation on the
basis of such vague and indefinite
allegations undoubtedly is in the teeth of
principles of natural justice. It was,
however, submitted that accused gets a right
of hearing only after submission of the
charge-sheet, before a charge is framed or
the accused is discharged vide Sections
227 & 228 and 239 and 240 Cr.P.C. The
appellant is not an accused and, therefore, it
was not entitled for any notice from the
High Court before passing of the impugned
order. We are concerned with the question
as to whether the High Court could have
passed a judicial order directing
investigation against the appellant and its
activities without providing an opportunity
of being heard to it. The case on hand is a
case where the criminal law is directed to be
set in motion on the basis of the allegations
made in anonymous petition filed in the
High Court. No judicial order can ever be
passed by any court without providing a
reasonable opportunity of being heard to the
person likely to be affected by such order
and particularly when such order results in
drastic consequences of affecting one s
own reputation. In our view, the impugned
order of the High Court directing enquiry
and investigation into allegations in respect
of which not even any complaint/
information has been lodged with the police
is violative of principles of natural justice.”
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 20 of 25
[Divine Retreat v. State of Kerala & Ors.
(2008) 3 SCC 542]
(iv) “If a judgment has been pronounced without
jurisdiction or in violation of principles of
natural justice or where the order has been
pronounced without giving an opportunity
of being heard to a party affected by it or
where an order was obtained by abuse of the
process of court which would really amount
to its being without jurisdiction, inherent
powers can be exercised to recall such order
for the reason that in such an eventuality the
order becomes a nullity and the provisions
of Section 362 Cr.P.C. would not operate. In
such eventuality, the judgment is manifestly
contrary to the audi alteram partem rule of
natural justice. The power of recall is
different from the power of altering/
reviewing the judgment. However, the party
seeking recall/alteration has to establish that
it was not at fault.”
[Davinder Pal Singh Bhullar & Ors. (2011)
14 SCC 770]
(v) “The proposition that notice need not be
given of a proposed action because, there
can possibly be no answer to it, is contrary
to the well-recognized understanding of the
real import of the rule of hearing. That
proposition overlooks that justice must not
only be done but must manifestly be seen to
be done and confuses one for the other. The
appearance of injustice is the denial of
justice. It is the dialogue with the person
likely to be affected by the proposed action
which meets the requirement that justice
must also be seen to be done. Procedural
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 21 of 25
safeguards have their historical origins in the
notion that conditions of personal freedom
can be preserved only when there is some
institutional check on arbitrary action on the
part of public authorities. The right to be
heard has two facets, intrinsic and
instrumental. The intrinsic value of that right
consists in the opportunity which it gives to
individuals or groups, against whom
decision taken by public authorities operate,
to participate in the processes by which
those decisions are made, an opportunity
that expresses their dignity as persons.”
[Olga Tellis & Ors. v. Bombay Municipal
Corporation & Ors. (1985) 3 SCC 545]
18. The rival contention by the complainant is that the notice is
not mandatory before passing the order under Section 91 of the
Cr.P.C. as it is the discretion of the Trial Court whether a particular
document should be summoned or not. He has referred to a
judgment in the case of Assistant Collector of Customs, Bombay
and another v. L.R. Melwani and another AIR 1970 SC 962 in
which it was observed as under :
“That apart we do not think that the High
Court was justified in interfering with the
discretion of the learned Magistrate Whether
a particular document should be summoned
or not is essentially in the discretion of the
trial court. In the instant case the Special
Public Prosecutor had assured the learned
trial Magistrate that he would keep in
readiness the statements of witnesses
recorded by the Customs authorities and
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 22 of 25
shall make avail able to the defence Counsel
the statement of the concerned witness as
and when he is examined. In view of that
assurance, the learned Magistrate observed
in his order:
"The recording of the prosecution evidence
is yet commence in this case and at present
there are no materials before me to decide
whether or not the production of any of the
statements and documents named by the
accused in his application is desirable or
necessary for the purpose of the enquiry or
trial. As stated at the outset, the learned
Special Prosecutor has given an undertaking
that he would produce all the relevant
statements and documents at the proper time
in the course of the heating of the case. The
request made for the issue of the summons
under Section 94, Criminal Procedure
Code is also omnibus."
The reasons given by the learned Magistrate
in support of his order are good reasons. The
High Court has not come to the conclusion
that the documents in question, if not
produced in court are likely to be destroyed
or tampered with or the same are not likely
to be made available when required. It has
proceeded on the erroneous basis that the
accused will not have a fair trial unless they
are supplied with the copies of those
statements even before the enquiry
commences. Except for very good reasons,
the High Court should not interfere with the
discretion conferred on the trial courts in the
matter of summoning documents. Such
interferences would unnecessarily impede
the progress of eases and result in waste of
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 23 of 25
public money and time as has happened in
this case.”
The other judgment relied upon by the complainant is in the
case of Express Newspapers Pvt. Ltd. and others v. Union of
India and others AIR 1986 SC 872. Apparently, this judgment is
not having any relevance with Section 91 of the Cr.P.C.
19. The argument advanced by the complainant cannot be taken
into consideration in isolation and it needs to be considered with
the combined effect of the exercise of the power under Section 91
of the Cr.P.C. The facts narrated on record do not demonstrate the
exercise of discretion under Section 91 of the Cr.P.C. in any other
circumstance except to facilitate the evidence of the complainant.
No question arises to look into the present case of exercising the
power under Section 91 of the Cr.P.C. to summon the document
except to render assistance and to facilitate the complainant
evidence against the petitioners. In such a scenario, the plea of the
complainant appreciating the order passed by the Trial Court
without giving any notice or opportunity of hearing to the opposite
side that too in a criminal case, would tantamount not only to the
violation of principle of natural justice but also to the violation of
Article 21 of the Constitution of India.
20. Apart from the discussion made above, it is apparent from
the arguments advanced that no list of witnesses or list of
documents showing its connectivity with the witnesses or to the
facts to be established before the Trial Court cannot be treated as
proper application for rendering assistance to the Court to facilitate
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 24 of 25
the evidence by way of seeking documents without demonstrating
any necessity or desirability. The applications were moved in a
casual manner and the orders passed on the same were also passed
in a casual manner without due application of mind. The facts and
circumstances mentioned above, non-issuance of notice to the
opposite side and impugned orders being non-speaking and
without due application of mind as per the law laid down by
Hon’ble Apex Court, culminates into the impugned orders as
ineffective, redundant and not sustainable in the eye of law and
liable to be set aside.
21. In view of the above discussion and the law laid down as
referred above, this Court is of the considered opinion that while
passing the order under Section 91 Cr.P.C. for summoning the
documents, if the other party has already joined the proceedings, it
is entitled to be heard. Consequently, the orders dated 11.01.2016
and 11.03.2016 are hereby set aside along with proceedings
consequent thereto.
22. Undisputedly, the complainant always has a right to invoke
the provision of Section 91 Cr.P.C. and the Court is always
empowered to pass an order in the facts the circumstances of the
case, keeping in view the necessity and desirability of the
document in situations as discussed above and giving due
opportunity of hearing to the other party.
23. However, it is made clear that the right of the complainant
shall not be curtailed in any circumstance to move the fresh
application during the pendency of the proceedings before the
Crl.M.C. 671/16, 672/16, 1317/16, 1319/16 & 1321/16 Page 25 of 25
Court below.
24. The petitions and applications, if any, are disposed of
accordingly.
(P.S.TEJI)
JUDGE
JULY 12, 2016
dd