N. Sasikala vs Assistant Commissioner of Income Tax

Malai Subramanian, J.—The petitioner is the third accused in E. O. C. C. No. 202 of 1997 pending on the file of the Additional Chief

Metropolitan Magistrate, Economic Offences Court No. 1, Egmore, Chennai. The prosecution filed a petition u/s 91 of the Criminal Procedure

Code, to call for certain documents and a memo of objection was filed by the defence. Taking into consideration, the petition and the memo of

objection, the trial court permitted the prosecution to call for the documents. Aggrieved by that, the revision has been filed.

According to learned counsel appearing for the petitioner, though certain documents were listed in the complaint itself, additional documents

were sought to be introduced after examination of the prosecution witnesses. For the second time also, one more document was called for and

admitted in evidence. When P. W. 3 was about to be examined, another set of documents was sought to be called for, that was objected to by the

defence on the ground that such piecemeal introduction of documents would prejudice the defence. He would further submit that technically

Section 91 of the Criminal Procedure Code, cannot be relevant when a witness is asked to give evidence on the documents sought to be

produced. Of course, the objection is only hyper-technical. No doubt Section 91 of the Criminal Procedure Code, does not speak about

examination of any witnesses and it only talks about production of documents. But u/s 244(2) of the Criminal Procedure Code, on the application

of the prosecution, the trial court can issue summons to any of its witnesses directing him to attend or to produce any document or any other thing.

Merely because subpoena was issued u/s 91 of the Criminal Procedure Code, the power of prosecution available u/s 244, subsection (2) of the

Criminal Procedure Code cannot be curtailed. Therefore, technical objection has to be overruled.

No doubt, the main objection raised by learned counsel appearing for the petitioner is well founded. But, in this case, as admitted by both sides,

none of the prosecution witnesses have so far been cross-examined. Suppose the defence takes a stand and that stand is put to the witnesses

examined on the side of the prosecution, then subsequently, any fresh document if introduced that may cause prejudice to the accused. In this case,

there was no cross-examination of any of the prosecution witnesses. Therefore, whatever be the evidence adduced by the prosecution either oral

or documentary is not going to take the defence by surprise. Therefore, it cannot be said that the defence would be prejudiced. The burden of the

prosecution is more onerous than that of the defence. The prosecution cannot be permitted to build up its case, only for the first time, during the

course of trial; it can only unfold its case whereas the defence can build its defence and change the defence and the defence is entitled to

inconsistent pleas also. Therefore, it is in the interest of justice that the prosecution should come forward after collecting all the materials to prove

the case against the accused. It is not the first time when a petition u/s 91 of the Criminal Procedure Code, was fifed, the accused objected to.

Even during the earlier attempts by the prosecution, the accused raised objections but those objections were overruled. Even then, the prosecution

cannot be permitted to go on calling for documents producing them in court as and when it likes. Of course, Section 244(2) of the Criminal

Procedure Code, empowers the prosecution to produce all such evidence as may be necessary to unfold the case of the prosecution. But that

does not mean that the prosecution can go on examining witnesses piecemeal and produce documents also as and when possible.

Coming to the case on hand, though the petition filed u/s 91 of the Criminal Procedure Code, was allowed by the trail court, it cannot be said to

be against law because u/s 244(2) of the Criminal Procedure Code, the prosecution is entitled to summon its witnesses either to attend or to

produce any document or other thing. But that provision should be properly understood and applied without prejudice to the accused. In this case,

since the accused has not taken up any defence so far and none of the prosecution witnesses has been cross-examined, no prejudice can be

caused to the accused by production of the documents concerned.

In the result, the petition stands dismissed. Consequently, connected criminal miscellaneous petition is closed.