- Sec. 91 of CrPC provides that a police officer or a court may, under certain circumstances, issue an order or a summons for the production of any document or thing if such production is necessary or desirable for the purpose of any investigation, INQUIRY, trial or other proceedings under the code.
- As seen from reading of the above provisions, „inquiry‟ being conducted by the magistrate carries possibility of getting application under section 91 of CrPC seeking documents from the custody of the accused.
ESSENTIALS OF THIS SECTION
There are some following essentials which is to fulfilled by the person such as: –
- SUMMONS OR ORDER HAS BEEN ISSUED:- The first essential is that where any court has reason to believe that a person to whom a summons or order has been issued under section 91 or a requisition under section 92 has been or might be, addressed, will not or would not produce the document or thing required by such summons or requisition.
- POSSESSION OF ANY PERSON:- The second essential is that where such thing or document is unknown to the court to be in possession of any person.
- SERVED BY A GENERAL SEARCH OR INSPECTION: – The third essential is that where the court considers that the purpose of any inquiry, trial under this code will be served by a general search or inspection, it may issue a search warrant: and the person to whom a search warrant is directed may inspect in accordance therewith and provisions hereinafter contained”.
CONSTITUTIONAL VALIDITY OF THIS SECTION
- Although Section 91 of CrPC is not mentioned in the above observation, it can be assumed from the phrase “accused may have documentary evidence in his possession which may throw some light on controversy” that reference was made to Section 91 of CrPC.
- Being eleven judge bench judgement, it left the scope open for the complainant to seek documents from the custody of the accused and only those are not going to be taken which are „incriminating and based upon personal knowledge of the accused‟ which is actually a subjective question to be decided either by the magistrate or by the police officer.
- Relying on this observation, applications to seek documents from the custody of the accused are still being filed and subjectivity involved to decide if that document is based upon personal knowledge of the accused so barred under Article 20(3) of the Constitution of India or if documents have some kind of bearing over subject matter of the complaint which can throw some light in trial, allows accused to become active participant at the stage of „inquiry‟ stated under section 202 of CrPC which also allows him to argue content of the complaints, whereas as shown in the above-mentioned judgements, presence of accused was never intended.
- It’s also harassment for the accused to be „compelled‟ to be part of the pre issuance of process proceedings on the basis of notice issued by the magistrate on an application under section 91 of CrPC.
IMPORTANT JUDGEMENTS OF THIS SECTION
This ambiguity was dealt by a Constitution bench of the Supreme Court in “Shyamlal Mohanlal v State of Gujarat‟ which observed – “If, after a thing or a document is produced, its admissibility is going to be examined and the document or thing in question is not going to be admitted in evidence if it incriminates the accused person, the order to produce the thing or document would seem to serve no purpose. It cannot be overlooked that it is because the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasions the power u/s. 94(1 ) (Old Code) would be resorted to, so that on the alternative view which seeks to exclude incriminating documents or things, the working of s. 94(l ) would yield no useful result”.
Section 91 of CrPC, 1973, which was section 94 in old CrPC, 1898 has a history which is ambiguous. To put it briefly, in ’The State of Bombay v Kathi Kalu Oghad‟ for the majority observed – “The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of S. 139 of the Evidence Act”
Therefore to maintain justness it was observed that, “it does not matter how much substantive the document is or how much is relevant for proving the fact without reasonable doubt, if it is incriminating then it should be inadmissible”.