Holding

At the stage of framing of charge, the accused has no right to produce any material and the trial court must consider only the prosecution’s record; Section 91 cannot be invoked for defence purposes at that stage.

Summary

The Supreme Court examined whether, at the stage of framing of charge under Sections 227, 228, 239 and 240 of the Code of Criminal Procedure, a trial court may consider material produced by the accused and whether the accused can invoke Section 91 to summon documents. The Court held that the Code grants no right to the accused to file any material at that stage; only the prosecution’s record may be considered, and Section 91 cannot be used for defence purposes before trial. Consequently, the Court allowed Criminal Appeal No. 497 of 2001, set aside the High Court’s order, and directed the trial court to proceed from the charge‑framing stage and conclude the trial expeditiously. The Special Leave Petition and Criminal Appeal No. 46 of 2004 were dismissed.

Issues considered

Can the trial court consider material furnished by the accused at the stage of framing of charge under Sections 227/239 of the CrPC?
Does the accused have a right to invoke Section 91 CrPC to produce documents for defence at the charge‑framing stage?
What is the meaning of ‘hearing the submissions of the accused’ in Section 227?

Legislation cited

Code of Criminal Procedure, 1973s. 173, s. 209, s. 227, s. 228, s. 229, s. 239, s. 240, s. 482, s. 91
Indian Penal Code, 1860s. 302

Subjects

Section 227 CrPCframing of chargematerial by accusedSection 91 CrPCdefence rightscriminal proceduredischargeevidenceArticle 21expeditious trial

Judgment

A STA TE OF ORISSA l

v.
DEVENDRA NA TH PADHI

NOVEMBER 29, 2004
B
[Y.K. SABHARWAL, D.M. DHARMADHIKARI AND
TARUN CHATTERJEE, JJ.]

Code of Criminal Procedure, 1973; Ss. 91, 173, 209, 227, 228, 229
and 240:
c
Material produced by accused at the stage of framing of charge-
Consideration of-Held: Material produceil by the prosecution alone need
to be considered by the trial Court and not the one produced by the
accused-Since evidence could be taken only after framing of charge,
D accused could produce the material at that stage only.

Section 91-Documents necessary/desirable for defence of the
accused-Discussed.

Words and Phrases :
E
'Hearing the submissions of the accused'-Meaning of in the context
of Section 227. of the Code.

The issue which arose for consideration in these criminal appeals
F was as to whether the Trial Court could, at the time of framing of
charge, consider the material furnished by the accused.

Earlier, when arguments in the present case were heard by a
Division Bench of this Court, it was observed that the issue was already
considered and answered in affirmative by a Division Bench of the
G Court in the case of Satish Mehra v. Delhi Administration & Anr., [1996)
9 SCC 766. However conflicting/opposite views have also been expressed
by this Court in its various decisions including a three-Judge Bench
decision in Superintendent and Remembrancer ofLegal Affairs, West Bengal
v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 and State of Bihar v.
H Ramesh Singh, [1977] 4 SCC 39. Hence, the case along with other connected
460
STATE v. DEVENDRA NA TH PAD HI 461

cases have been referred to the present larger Bench of three Judges. A
Answering the question in negative and allowing the Criminal
Appeal No. 497 of 2001 and dismissing the Special Leave Petition (Crl.)
l'l'o. 1912 of 2003 and Criminal Appeal No. 46 of 2004, the Court

HELD: 1.1. No provision in the Code of Criminal Procedure grants B
to the accused any right to file any material or document at the stage
of framing of charge. That right is granted only at the stage of the trial.
[467-C]

1.2. Section 227 Cr.P.C. was incorporated in the Code with a view
to save the accused from prolonged harassment which is a necessary
c
concomitant of a protracted criminal trial. It is incorporated to eliminate
harassment to accused persons when the evidential materials gathered
after investigation fall short of minimum legal requirements. (467-D]

1.3. This Court in its various decisions proceeded on the basis of D
settled legal position that the material as produced by the prosecution
alone is to be considered and not the one produced by the accused. The
latter aspect relating io the accused though has not been specifically stated,
yet it is implicit in the decisions. It seems to have not been specifically so
stated as it was taken to be well settled proposition. (469-E]

State of Bihar v. Ramesh Singh, [1977] 4 SCC 39; Superintendent and
Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors.,
(1980] 1 SCR 323; State of Delhi v. Gyan Devi and Ors., [2000] 8 SCC
239; State of Madhya Pradesh v. S.B. Johan· and Ors., [2000] 2 SCC 57
and State of Maharashtra v. Priya Sharan Maharaj & Ors., (1997] 4 SCC F
393, referred to.

1.4. It is well-settled that at the stage of framing of charge the
defence of the accused cannot be put forth. The acceptance of the
contention of the accused would mean permitting the accused to adduce
his defence at the stage of framing of charge and for examination thereof G
at that stage which is against criminal jurisprudence. It is in this light
that the provision about hearing the submissions of the accused as
postulated by Section 227 is to be understood. It only means hearing the
submissions of the accused on the record of the case as filed by the
prosecution and documents submitted therewith and nothing more. The H
462 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A expression 'hearing the submissions of the accused' cannot. mean
opportunity to file material to be granted to the accused and thereby
changing the settled law. At the stage of framing of charge hearing the .
submissions of the accused has to be confined to the material produced
by the police. [470-E, F, G, H; 471-A]
B
Minakshi Bala v. Sudhir Kumar & Ors., [1994] 4 SCC 142;
distinguished.

2. The law is that at the time of framing charge or taking cognizance
the accused has no right to produce any material. Salish Mehra 's. case
c holding that the trial Court has powers to consider even materials which . ·
accused may produce at the stage of Section 227 of the Code has not
been correctly decided. [473-C]

Satish Mehra v. Delhi Administration & Anr., [1996] 9 SCC 766,.
]j · referred to.

P.S. Rajya v. State of Bihar, [1996] 9 SCC 1~ Staie of Haryana V;
Bhajan Lal, (1992) Suppl. 1 335 and State of Madhya Pradesh v. Mohan ·
Lal Soni, [2000] 6 SCC 338, distinguished.

E 3.1. Any document or other thing envisaged 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'. If any document is necessary or
desirable for the defence o·f the accused, the question of invoking the
F Section 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 ofa document as may be necessary
at any of the stages mentioned in the Section. Jn so far as the accused
G is concerned, his entitlement to seek order under the Section would
ordinarily not come till the stage of defence. [473-H; 474-A, B, C]

3.2. If under Section 227 of the Code what is necessary and relevant
is 'only the record produced in t~.rms of Section 173 of the Code, the
H accused cannot at that stage invoke Section 91 to seek production of any
STATE v. DEVENDRA NATH PADHI 463

document to show his innocence. The Section does not confer any right A
_on the. accused to produce document in his possession to prove his
defence. It presupposes that when the document is not produced process
may be initiated to compel production thereof. The width of the powers
of the Section was unlimited but there were inbuilt inherent limitations
as to the stage or point of time of its exercise, commensurately with the B
nature of proceedings as also the compulsions of necessity and desirability,
to fulfil the task or achieve the object. The jurisdiction under the Section
when invoked by accused, the necessity and desirability would have to
be seen by the .Court in the context of the purpose --:- investigation,
inquiry, trial or other proceedings under the Code. It would also have
to be borne in mind that law does not permit a roving or fishing inquiry.
c
(474-D, E; 475-C, D, G]

Om Prakash Sharma v. CBI, Delhi, [2000) 5 SCC 679, relied on.

4. The trial Court is directed to proceed from the stage of framing D
of charge and expeditiously conclude the trial. (476-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
497 of 2001.

From the Judgment and Order dated 21.6.99 of the Orissa High Court E
in Cr!. M.C. No. 2374 of 1995.

WITH

S.L.P. (Crl.) No. 1912/2003 and Cr!. A. No. 46 of 2004.
F
Radha Shyam Jena for the Appellant in Cr!. A. No. 497/2001.

Uday U. Lalit, Ms. Aprajita Singh and Siddhartha Chowdhury for the
Appellant in Cr!. A. No. 46/2004.
G
R.K. Jain, Ajay Bhalla and Anil Kumar Tandale for the Petitioner in
S_.L.P. (Crl.) No. 1912/2003.
'·
U.U. Lalit, Uday Gupta, Ms. Shivani M~· Lal and Manoj Swamp for
the Respondent in Crl. A. No. 497 /200 I. ·
H
464 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Ajit S. Bhasme and P. Parmeswaran for the Respondent in Crl. A. No.
46/2004.

B.B. Singh and Kumar Rajesh Singh for the Respondent in S.L.P. (Crl.)
No. 1912/2003.
B
The Judgment of the Court was delivered by

Y.K. SABHARW AL, J. : Can the trial court at the time of framing
of charge consider material filed by the accused, is the point for determination
...c in these matters .

In Satish Mehra v. Delhi Administration and Another, [1996] 9 SCC
766, a two judge Bench judgment, it was observed that if the accused
succeeds in producing any reliable material at the stage of taking cognizance
or framing of charge which might fatally affect even the very sustainability
D of the case, it is unjust to suggest that no such material should be looked
into by the court at that stage. It was held that the object of providing an
opportunity to the accused of making submissions as envisaged in Section
227 of the Code of Criminal Procedure, 1973 (for short, 'the Code') is to
enable the court to decide whether it is necessary to proceed to conduct the
trial. If the materials produced by the accused even at that early stage would
E clinch the issue, why should the court shut it out saying that such documents
need be produced only after wasting a lot more time in the name of trial
proceedings. It was further observed that there is nothing in the Code which
shrinks the scope of such audience to oral arguments and, therefore, the trial
court would be within its power to consider even material which the accused
F may produce at the stage contemplated in Section 227 of the Code.

When the arguments in the present case were heard by a two-judge
Bench, considering various decisions including three-judge Bench decisions
in Superintendent and Remembrancer of Legal Affairs, West Bengal v. A nil
Kumar Bhunja and Others, [ 1979] 4 SCC 274 and State ofBihar v. Ramesh
G Singh, [1977] 4 sec 39 it was observed that at the time of framing a charge
the trial court can consider only the material placed before it by the
investigating agency, there being no requirement in law for the court to grant
at that stage either an opportunity to the accused to produce evidence in
defence or consider such evidence the defence may produce at that stage.
H But having regard to the views expressed in Satish Mehra 's case (supra) it
STATE v. DEVENDRA NATH PADHI [SABHARWAL, J.] 465

was directed that the matter should be referred to a larger Bench. The order A
referring the matter to larger Bench is reported in State ofOrissa v. Debendra
Nath Padhi, [2003] 2 SCC 711. Accordingly, these matters have been
placed before us to determine the question above-noticed.

The views expressed in Satish Mehra 's case (supra) have been strongly
B
supported by learned counsel for the accused on the ground of justice, equity
and fairness and also on the touchstone of Article 21 of the Constitution of
India contending that reversal of that view would lead to unnecessary
harassment to the accused by having to face the trial for years, waste of
valuable time of the court, heavy cost, despite the fact that even at the early
stage of framing of charge or taking cognizance the accused is in a position c
to produce unimpeachable material of sterling quality to clinchingly show
that there is no prospect of conviction at the conclusion of the trial. Satish
Mehra 's case was further supported on interpretation of Sections 227 and
239 of the Code.
D
On the other hand, it was contended on behalf of the State that the
observations made in Satish Mehra 's case run counter to the views expressed
by this court in large number of decisions, it amounts to upsetting well
settled legal propositions and making nugatory amendments made in Code
of Criminal Procedure from time to time and would result in conducting a
mini trial at the stage of framing of charge or taking cognizance. Such a E
course would not only be contrary to the object and tke scheme of the Code
but would also result in total wastage of the court time because of conducting
of two trials, one at the stage of framing charge and the other after the charge
is framed. It was contended that on true construction of Section 227 of the
Code only the material sent by prosecution along with the record of the case F
and the documents sent along with it can be considered by the trial court
at the time of framing of the charge. The accused at that stage has no right
to place before the court any material.

At the stage of framing charge, the trial court is required to consider
whether there are sufficient grounds to proceed against the accused. Section G
227 of the Code provides for the eventuality when the accused shall be
discharged. If not discharged, the charge against the accused is required
to be framed under Section 228. These two sections read as under:

H
466 SUPREMECOURT REPORTS [2004] SUPP. 6 S.C.R.

:A "Section 22.7 of Cr.PC.

Discharge-If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions
of the accused and the prosecution in this hehalf, the Judge considers
B that there is not sufficient ground for the proceeding against the
accused, he shall discharge the accused and record his reasons for
so doing.

Section 228 of Cr.PC.

C Framing of charge- (1) If, after such consideration and hearing
. as aforesaid, the' Judge is of opinion that there is ground for presuming
that the accused has committed an offence which_,

(a) is not exclusively triable by the Court of Session, he may, frame
D a charge againstthe accused and, by order, transfer the case for trial
to the Chief Judicial Magistrate, and thereupon the Chief Judicial
Magist~ate shall. try the offence in accordance with the procedure
for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a
·~
charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-
section (1), the charge shall be read and explained to the accused
and the accused shall be asked whether· he pleads guilty of the
F offence or claims to be tried."

. Similarly, in respect of warrant cases triable by Magistrates, instituted
on a police report, Sections 239 and 240. of the. Code are the relevant
statutory provisions. Section 239 requires the Magistrate to consider 'the
police report and the documents sent with it under Section. 173' and; if
G necessary, examine the accused and after giving accused an opportunity of
being heard, if the Magistrate considers the charge against the accused to
be groundless, the accused is liable to be discharged by recording reasons
thereof.

.H What is to the meaning of the expression 'the record of the case' as
STATE v. DEVENDRA NATH PADHI [SABHARWAL, J.] 467

used in Section 227 of the Code. Though the word 'case' is not defined A
in the Code but Section 209 throws light on the interpretation to be placed
on the said word. Section 209 which deals with the commitment of case
to Court of Session when offence is triable exclusively by it, inter alia,
provides that when it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall commit 'the case' to the Court B
of Session and send to that court 'the record of the case' and the document
and articles, if any, which are to be produced in evidence and notify the
Public Prosecutor of the commitment of the case to the Court of Session.
It is evident that the record of the case and documents submitted therewith
as postulated in Section 227 relate to the case and the documents referred
in Section 209. That is the plain meaning of Section 227 read with Section C
209 of the Code. No provision in the Code grants to the accused any right
to file any material. or document at the stage of framing of charge. That
right is granted only at· the. stage of the trial.

Further, the scheme of the Code when examined in the light of the . D
provisions of the old code. of 1898, makes the position more clear. In the
old code, there was no provision similar to Section 227. Section 227 was
incorporated in the Code with a view to save the accused from prolong~d
harassment which is a necessary concomitant of a protracted criminal trial.
It is calculated to eliminate harassment to accused persons when the evidential
· materials gathered after investigation fall short of minimum legal E
requirements. If the evidence even if fully accepted cannot show that the
accused committed the offence, the accused deserves to be discharged. In
the old Code, the procedure as contained in Sections 207 and 207(A) was
fairly lengthy. Section 207, inter alia, provided that the Magistrate, where
the case is exclusively triable by a Court of Session in any proceedings F
instituted on a police report, shall follow the procedure specified in Sectioin
207(A). Under Section 207(A) in any proceeding instituted on a police
report the Magistrate was required to hold inquiry in terms provided under
sub-section (I), to take evidence as provided in sub-section (4 ), tli e accused
could cross-examine and the prosecution could re-examine the witnesses as
provided in sub-section (5), discharge the accused if in the opinion of the G
Magistrate the evidence and documents disclosed no grounds for committing
him for trial, as provided in sub-section (6) and to commit the accused for
trial ·after framing of charge as provided in sub-section (7), summon the
•< witnesses of the accused to appear before the court to which he has been
. committed as provided in sub-section ( 11) and send the record of the inquiry H
468 SUPREME COURT REPORTS (2004) SUPP. 6 S.C.R.

A and any weapon or other thing which is to be produced in evidence, to the .,
Court of Session as provided in sub-section (14). The aforesaid Sections
207 and 207(A) have been omitted from the Code and a new Section 209
enacted on the recommendation of the Law Commission contained in its
41 st Report. It was realised that the commitment inquiry under the old Code
B was resulting in inordinate delay and served no useful purpose. That inquiry
has, therefore, been dispensed with in the Code with the object of expeditious
disposal of cases. Instead of committal Magistrate framing the charge, it is
now to be framed by Court of Session under Section 228 in case the accused
is not discharged under Section 227. This change brought out in the code
is also required to be kept in view while determining the question. Under
C the Code, the evidence can be taken only after framing of charge.

Now, let us examine the decisions which have a bearing on the point
in issue.

D In State of Bihar V. Ramesh Singh, (1977) 4 sec 39 considering the
scope of Sections 227 and 228 of the Code, it was held that at the stage of
framing of charge it is not obligatory for the Judge to consider in any detail
and weigh in a sensitive balance whether the facts, if proved, would be
incompatible with the innocence of the accused or not. At that stage, the
court is not to see whether there is sufficient ground for conviction of the
E accused or whether the trial is sure to end in his conviction. Strong suspicion,
at the initial stage of framing of charge, is sufficient to frame the charge
and in that event it is not open to say that there is no sufficient ground for
proceeding against the accused.

F In Superintendent and Re_membranc·er of Legal Affairs, West Bengal
v. Anil Kumar Bhunja and Others, (1980) 1 SCR 323 a three-judge Bench
held that the Magistrate at the stage of framing charges had to see whether
the facts alleged and sought to be proved by the prosecution prima facie
disclose the commission of offence on general consideration of the materials
placed before him by the investigating police officer (emphasis supplied).
G Though in this case the specific question whether an accused at the stage
of framing of charge has a right to produce any material was not considered
as such, but that seems implicit when it was held that the Magistrate had
to consider material placed before it by the investigating police officer.

H In State ofDelhi v. Gyan Devi and Others, [2000] 8 SCC 239 this Court
STATE v. DEVENDRA NATH PADHI [SABHARWAL, J.] 469

reiterated that at the stage of framing of charge the trial court is not to A
examine and assess in detail the materials placed on record by the proseuction
nor is it for the court to consider the sufficiency of the materials to establish
the offence alleged against the accused persons.

In State of Madhya Pradesh v. S.B. Johari and Others, [2000] 2 sec B
57 it was held that the charge can be quashed if the evidence which the
prosecutor proposes to adduce to prove the guilt of the accused, even if fully
accepted, cannot show that the accused committed the particular offence.
In that case, there would be no sufficient ground for proceeding with the
trial.
c
In State of Maharashtra v. Priya Sharan Maharaj and Others, [ 1997]
4 SCC 393 it was held that at Sections 227 and 228 stage the court is required
to evaluate the material and documents on record with a view to finding out
if the facts emerging therefrom taken at their face value disclose the existence
of all the ingredients constituting the alleged offence. The court may, for D
this limited purpose, sift the evidence as it cannot be expected even at that
initial stage to accept all that the prosecution states as gospel truth even if
it is opposed to common sense or the broad probabilities of the case.

All the decisions, when they hold that there can only be limited
evaluation of materials and documents on record and sifting of evidence E
to prima facie find out whether sufficient ground exists or not for the
purpose of proceeding further with the trial, have so held with reference to
materials and documents produced by the prosecution and not the accused.
The decisions proceed on the basis of settled legal position that the material
as produced by the prosecution alone is to be considered and not the one F
produced by the accused. The latter aspect relating to the accused though
has not been specifically stated, yet it is implicit in the decisions. It seems
to have not been specifically so stated as it was taken to be well settled
proposition. This aspect, however, has been adverted tp in State Anti-
Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam, [1999]
SCC (Crl.) 373 where considering the scope of Sections 239 and 240 of the G
Code it was held that at the time of framing of charge, what the trial court
is required to, and can consider are only the police report referred to under
Section 173 of the Code and the documents sent with it. The only right the
accused has at that stage is ofbeing heard and nothing beyond that (emphasis
supplied). The judgment of the High Court quashing the proceedings by H
470 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A looking into the documents filed by the accused in support of his claim that
no case was made out against him even before the trial had commenced was
reversed by this Court. It may be noticed here that learned counsel for the
parties addressed the arguments on the basis that the principles applicable
would be same - whether the case be under Sections 227 and 228 or under
B Sections 239 and 240 of the Code.

As opposed to the aforesaid legal position, the learned counsel appearing
for the accused contended that the procedure which deprives the accused
to seek discharge at the initial stage by filing unimpeachable and unassailable
material of sterling quality would be illegal and violative of Article 21 of
C the Constitution since that would result in the accused having to face the
trial for long number of years despite the fact that he is liable to be
discharged if granted an opportunity to produce the material and on perusal
thereof by the court. The contention is that such an interpretation of Sections
227 and 239 of the Code would run the risk of those provisions being
D declared ultra vires of Articles 14 and 21 of the Constitution and to save
the said provisions from being declared ultra vires, the reasonable
interpretation to be placed thereupon is the one which gives a right, howsoever,
limited that right may be, to the accused to produce unimpeachable and
unassailable material to show his innocence at the stage of framing charge.

E We are unable to accept the aforesaid contention. The reliance on
Articles 14 and 21 is misplaced. The scheme ofth!'! Code and object with
which Section 227 was incorporated and Sections 207 and 207(A) omitted
have already been noticed. Further, at the stage of framing of charge roving
and fishing inquiry is impermissible. If the contention of the accused is
F accepted, there would be a mini trial at the stage of framing of charge. That
would defeat the object of the Code. It is well-settled that at the stage of
framing of charge the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel for the accused would
mean permitting the accused to adduce his defence at the stage of framing
of charge and for examination thereof at that stage which is against the
G criminal jurisprudence. By way of illustration, it may be noted that the plea
of alibi taken by the accused may have to be examined at the stage of
framing of charge if the contention of the accused is accepted despite the
well settled proposition that it is for the accused to lead evidence at the trial
to sustain such a plea. The accused would be entitled to produce materials
H and documents in proof of such a plea at the stage of framing of the charge,
STATE v. DEVENDRA NATH PADHI (SABHARWAL, J.] 471

in case we accept the contention put forth on behalf of the accused. That A
has never been the intention of the law well settled for over one hundred
years now. It is in this light that the provision about hearing the submssions
of the accused as postulated by Section 227 is to be understood. It only
means hearing the submissions of the accused on the record of the case as
filed by the prosecution and documents submitted therewith and nothing B
more. The expression 'hearing the submissions of the accused' cannot mean
opportunity to file material to be granted to the accused and thereby changing
the settled law. At the stage of framing of charge hearing the submissions
of the accused has to be confined to the material produced by the police.

It may also be noted that, in fact, in one of the cases under consideration C
(SLP No. 1912) the plea of alibi has been taken by the accused in a case
under Section 302 read with other provisions of the Indian Penal Code. We
may also note that the decisions cited by learned counsel for the accused
where the prosecutions under the Income Tax Act have been quashed as a
result of findings in the departmental appeals have no relevance for D
considering the question involved. in these matters.

Reliance placed on behalf of the accused on some observations made
in Minakshi Bala v. Sudhir Kumar and Others, [ 1994] 4 SCC 142 to the
effect that in exceptional cases the High Court can look into only those
documents which are unimpeachable and can be legally translated into E
relevant evidence is misplaced for the purpose of considering the point in
issue in these matters. If para 7 of the judgment where these observations
have been made is read as a whole, it would be clear that the judgment
instead of supporting the contention sought to be put forth on behalf of the
accused, in fact, supports the prosecution. Para 7 of the aforesaid case reads F
as under:-

"If charges are framed in accordance with Section 240 CrPC on a
finding that a prima case has been made out - as has been done
in the instant case - the persons arraigned may, if he feels aggrieved,
invoke the revisional jurisdiction of the High Court or the Sessions G
Judge to contend that the charge-sheet submitted under Section l 73
CrPC and documents sent with it did not disclose any ground to
presume that he had committed any offence for which he is charged
and the revisional court if so satisfied can quash the charges framed
against him. To put it differently, once charges are framed under H
472 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Sections 240 CrPC the High Court in its revisional jurisdiction
would not be justified in relying upon documents other than those
. referred to in Sections 239 and 240 CrPC; nor would it be justified
in invoking its inherent jurisdiction under section 482 CrPC to
quash the same except in those rare cases where forensic exigencies
and formidable compulsions justify such a course. We hasten to add
B
even in such exceptional c,ases the High Court can look into only
those documents which are unimpeachable and can be legally
translated into relevant evidence."

It is evident from the above that this Court was considering the rare
C and exceptional cases where the High Court may consider unimpeachable
evidence while exercising jurisdiction for quashing under Section 482 of the
Code. In the present case, however, the question involved is not about the
exercise of jurisdiction under Section 482 of the Code where along with the
µetition the accused may file unimpeachable evidence of sterling quality and
D on that basis seek quashing, but is about the right claimed by the accused
to produce material at the stage of framing of charge.

Reliance has also been placed on decision in the case of P.S. Rajya v.
State ofBihar, [1996] 9 SCC l where this court rejected the contention urged
on behalf of the State that the points on which the accused was seeking
E quashing of criminal proceedings could be established by giving evidence
at appropriate time and no case had been made out for quashing the charge
itself. The charge was quashed by this Court. In this case too only on
peculiar facts of the case, this Court came to the conclusion that the criminal
proceedings initiated against the appellant-accused could not be pursued.
F Those peculiar facts have been noticed in paragraphs 14, 17, 18 and 19 of
the decision. The contention of the accused based on those peculiar facts
has been noticed in para 15 and that of respondent that the CBI was entitled
to proceed on the basis ~f the material available and the mere allegations
made by the accused cannot take the place of proof and that had to be gone
G into· and estab.lished in the final hearing, has been noticed in para 16. After
noticing those contentions and the decision in the case of State of Haryana
v. Bhajan Lal, [1992] ~uppl. 1 335 laying down the guidelines relating to
the exercise of extraordinary power under Article 226 or the inherent power
under Section 482 of the Code for quashing an FIR or a complaint, this
Court, on the peculiar facts, came to the conclusion that the case of the
H appellant could be brought under more than one head given in Bhajan Lal 's
STATE v. DEVENDRA NATH PADHI [SABHARWAL, J.] 473

case (supra) without any difficulty so as to quash the proceedings. In this A
background, observations were made in para 23 on which reliance has been
placed on behalf of the accused whereby rejecting the contention of the State
as noticed in para 16, the Court came to the conclusion that the criminal
proceedings deserve to be quashed. In this case too the question was not
•
about the right of...the accused to file material at the stage of framing charge B
but was about quashing qf proceedings in exercise of power urider Section
482 of the Code. The decision in the case of State of Madhya Pradesh v.
Mohan Lal Soni, [2000] 6 SCC 338 sought to be relied upon on behalf of
the accused is also of no assistance because in that case an earlier order of
the High Court wherein trial court was directed to take into consideration
the documents made available by the accused during investigation while C
framing charge had attained finality since that order was not challenged and
in· that view this Court came to the conclusion that the trial court was bound
and governed by the said direction of the High Court which had not been
followed.
D
As a result of aforesaid discussion, in our view, clearly the law is that
at the time of framing charge or taking cognizance the accused has no right
to produce any material. Salish Mehra 's case holding that the trial court
has powers to consider even materials which accused may produce at the
stage of Section 227 of the Code has not been correctly decided.
E
On behalf of the accused a contention about production of documents
relying upon Section 91 of the Code has also been made. Section 91 of the
Code reads as under:

"Summons to produce document or ·other thing. - ( 1) Whenever any F
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 G
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) .......................................................................... .
H
474 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A (3) ........................................................................... ..

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
B 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
C. 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 the accused is concerned, his e.ntitlement to seek order under Section
D 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,
E 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 police station can also direct production thereof. Section 91
does not confer any right on the accused to produce document in his
F possession to prove his defence. Section 91 presupposes that when the
document is not produced process may be initiated to compel production
thereof.

Reliance on behalf of the accused was placed on ·some observations
G made in the case of Om Parkash Sharma v. CBI, Delhi, [2000] 5 SCC 679.
In that case the application filed by the accused for summoning and production
of documents was rejected by the Special Judge and that order was affirmed
by the High Court. Challenging those orders before this Court, reliance was
placed on behalf of the accused upon Salish Mehra 's case (supra). The
contentions based on Satish Mehra 's case have been noticed in para 4 as
H -under:
STATE v. DEVENDRA NATH PADHI [SABHARWAL, J.] 475

"The learned counsel for the appellant reiterated the stand taken A
before the courts below with great vehemence by inviting our
attention to the decision of this Court reported in Satish Mehra v.
Delhi Admn., [1996] 9 SCC 766 laying emphasis on the fact the
very learned Judge in the High Court has taken a different view in
such matters, in the decision reported in Ashok Kaushik v. State, B
( 1999) 49 DRJ 202. Mr Altaf Ahmed, the learned ASG for the
respondents not only contended that the decisions relied upon for
the appellants would not justify the claim of the appellant in this
case, at this stage, but also invited, extensively our attention to the
exercise undertaken by the courts below to find out the relevance,
desirability and necessity of those documents as well as the need C
for issuing any such directions as claimed at that stage and
consequently there was no justification whatsoever, to intervene by
an interference at the present stage of the proceedings.

In so far as Section 91 is concerned, it was rightly held that the width D
of the powers of that section was unlimited but there were inbuilt inh~rent
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 fulfil the task 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. The application filed by the accused E
under Section 91 of the Code for summoning and production of document
was dismissed and order was upheld by High Court and this Court. But
observations were made in para 6 to the effect that if the accused could
produce any reliable material even at that stage which might totally affect
even the very sustainability of the case, a refusal to look into the material F
so produced may result in injustice, apart from averting an exercise in
futility at the expense of valuable judicial/public time, these observations
are clearly obiter dicta and in any case of no consequence in view of
conclusion reached by us hereinbefore. Further, the observations cannot be
understood to mean that the accused has a right to produce any document
at stage of framing of charge having regard to the clear mandate of Sections G
227 and 228 in C;hapter 18 and Sections 239 and 240 in Chapter 19.

We are of the view that jurisdiction under Section 91 of the Code when
invoked by accused the necessity and desirability would have to be seen by
H
(
476 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A the Court in the context of the purpose - investigation, inquiry, trial or
other proceedings under the Code. It would also have to be borne in mind
that law does not permit a roving or fishing inquiry.

Regarding the argument of accused having to face the trial despite
B being in a position to produce material of unimpeachable character of
sterling quality, the width of the powers of the High Court under Section
482 of the Code and Article 226 of Constitution of India is unlimited
whereunder in the interests of justice the High Court can make such orders
as may be necessary to prevent abuse of the process of any Court or
otherwise to secure the ends of justice within the parameters laid down in
C Bhajan La/'s case.

The result of the aforesaid discussion is that Criminal Appeal No. 497
of 200 I is allowed, the impugned judgment of the High Court is set aside.
The trial court is directed to proceed from the stage of framing of charge.
D Having regard to the fact that the charges were framed about I I years ago
we direct the trial court to expeditiously conclude the trial and as far as
possible it shall be held from day-to-day.

Special Leave Petition (Crl.) No. I912 of 2003 and Criminal Appeal
No. 46 of 2004 are dismissed. Since .Special Leave Petition relates to an
E occurrence whic,ll took about 3 years back and the offence is under Section
302 Indian Penal Code and in Criminal Appeal No. 46 of2004 charges were
framed about 2 years ago, we direct that the trial in these cases shall also
be concluded expeditiously. All the appeals are disposed of accordingly.

S.K.S .. Criminal appeal No. 497 of 200 I allowed.
Special Leave Petition (Crl.) No. 19I2 of 2003
and Criminal Appeal No. 46 of 2004 dismissed.