Naba Kumar Sarkar vs National Investigating Agency

S.S. Saron, J.

This appeal has been filed by the appellant - Naba Kumar Sarkar @ Swami Asima Nand against order dated 02.11.2011 passed by the learned Additional Sessions Judge, NIA Special Court, Panchkula whereby the application of the appellant filed under Section 91 of the Code of Criminal Procedure (''Cr.P.C.'' - for short) for production of documents, relevant material and also for direction to respondent - National Investigating Agency in terms of Section 294 Cr.P.C. for admission or denial of the documents as mentioned in the application has been declined.

In State of Orissa Vs. Debendra Nath Padhi, (Five Judges) it has been held by the Hon''ble Supreme Court as follows:-

"Any document or other thing envisaged under the aforesaid provision (i.e. under Section 91 Cr.P.C.) 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. 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.

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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. 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."

(Emphasis added)

A perusal of the above shows that the stage of the case at which the document sought to be summoned is to be seen; besides, insofar as an accused is concerned, his entitlement to seek an order under Section 91 Cr.P.C. would ordinarily not come till the stage of defence. The trial in the present case is going on and witnesses are being examined. The trial of the case has not reached at the stage of defence.

In the circumstances, learned Senior Counsel for the appellant submits that he may be permitted to withdraw the present appeal. However, he reserves his right to agitate his claim for his defence of the appellant at the appropriate stage of the trial in accordance with law.

Mr. S.S. Sandhu, Advocate, Special Prosecutor NIA submits that he has no objection to the same.

Accordingly, the appeal is dismissed as withdrawn with liberty as prayed for.