MUKTA GUPTA, J.

(1) A complaint under Section 13 of the Official Secrets Act, 1929 ( in short the OS Act) was filed by Shri Ram Chander Garvan, Inspector of Police, CBI against the Petitioner herein and one Ms. Vijaya Rajgopal. The complaint is pending since 20th November, 2000 and not even a single witness has been examined so far. On the petitioner filing a petition being Criminal M.C. 1927/2009 this Court vide order dated 15th February, 2010 exempted the Petitioner from personal appearance subject to certain conditions and directed the learned Trial Court to expedite the recording of pre-charge evidence and conclude the same within one year from that date. Soon thereafter on 20th February, 2010 the Petitioner moved an application under Section 91 Cr.P.C. for summoning of documents/reports/final reports before the learned Trial Court. The prayer in the application was not for the supply of documents relied upon by the prosecution but the Final Report-I (FR-I) and Final Report-II (FR-II) prepared by the erstwhile Investigating Officer DSP Ram Chandra who carried out the investigation of the case from September, 1996 to April, 1997. The contention of the Petitioner was that these final reports showed that the searches were motivated and there were circumstances under which the planting of documents cannot be ruled out and therefore the recovery and possessions of the documents itself was in serious doubt. Shri Ram Chandra DSP, CBI who conducted the investigation from September, 1996 to April, 1997 recorded the statements of the Petitioner, his employees and other income tax Officials and submitted his Final Report I and further Final Report-II not recommending the prosecution of the Petitioner and the other accused because he was of the view that the recovery of the document itself could not be proved beyond doubt and any further investigation particularly examination of defence personal etc. would not be fruitful. It was thus, the view of the Investigating Officer that a closure report be filed.

(2) The learned Trial Court after hearing the arguments dismissed the application of the Petitioner inter alia for the reasons; that no doubt the Court has power to call for the record and peruse the same but the satisfaction has to be of the Court and the accused is entitled to be supplied with the copies of the material used by the prosecution against the accused so that he can defend himself properly. It was held that the documents sought by the Petitioner were not meant to be used against him as they were not being relied upon by the CBI and thus, the Petitioner was not entitled to the production of the said documents. Challenging this order the Petitioner first filed a Criminal Revision Petition bearing No. 381/2010 before this Court which was dismissed as withdrawn vide order dated 3rd August, 2010. The Petitioner has thereafter filed the present petition challenging the impugned order dated 30th April, 2010.

(3) Learned counsel for the Petitioner contends that the scope of provision of Section 91 Cr.P.C. is much wider than Sections 207 or Section 208 Cr.P.C. According to Section 91 of the Code, whenever a Court considers that the production of any document or other thing is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings before the Court, such Court may issue summons to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it. Under Section 91 of the Code, the Court has power to call documents not even relied upon by the prosecution. It is stated that under Section 3 of the Evidence Act a final report prepared by the Investigating Officer is a Document; and the Evidence under the said Section means and includes all documents produced for the inspection of the Court; such documents being called documentary evidence. The prosecution in this case has taken contrary stands; first stating that no such report was prepared and then taking legal objections. Once the privilege claimed by CBI of those documents in terms of the CBI manual has been turned down by the learned Trial Court, and the Respondent having not challenged the said finding, the same has attained finality and cannot be allowed to be reopened in this writ petition. The prosecution cannot also claim recourse to Section 124 of the Indian Evidence Act as no public interest would suffer by the production or disclosure of the documents asked for. The CBI manual cannot override the provisions of Cr.P.C. and in any case the same cannot take away the fundamental right of the accused guaranteed under Article 21 of the Constitution of India of a proper defence of his case. Reliance is placed on Neelesh Jain vs. State of Rajasthan, 2006 Crl. L.J. 2151 wherein the Court directed production of documents like photos, love letters between the prosecutrix and the accused petitioner, some STD bill slips and the ledger book which were though recovered but not filed by the police along with the charge sheet.

(4) It is contended that the prosecution is not expected to collect one-sided evidence and present it to the Court. A fair investigation is the hallmark of rule of law. The right to defend which follows from the fundamental right to life and personal liberty enshrined in Article 21 of the Constitution of India is not an illusionary right but a substantive one. Reliance is place on Navin Ramji Kamani vs. Shri K.C. Shekhran, Dy. Chief Controller of Imports and Exports, 1981 RCC 218 and Rajesh Prasad vs. State of Rajasthan, 1998 (Supp) Crl.L.R. (Raj.) 265.

(5) It is next contended that in case the Final Report-I and II are made available the Petitioner would be in a position to find out whether reinvestigation was conducted or further investigation was conducted. According to the Petitioner a fresh investigation as held by the Honble Supreme Court in Ramchandran vs. R. Udayakumar, AIR 2008 SC 3102 [LQ/SC/2008/1193] and Virender Prasad Singh vs. Rajesh Bhardwaj, 2010 (9) SCC 171 [LQ/SC/2010/844] , is illegal.

(6) On the contrary, learned Standing Counsel for the Respondent contends that the jurisdiction under Section 91 Cr.P.C cannot be invoked by the Petitioner at the preliminary stage of framing of the charge. At the stage of framing of charge the Trial Court can only evaluate the material and documents on record placed by the prosecution. It is a settled principle of law that for an order under Section 91 Cr.P.C. the concerned Court has to look into the necessity and desirability for invoking the provision. The necessity and 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 charge would not arise since defence of the accused is not relevant at that stage. When the section states of the 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 entitlement to seek an order under Section 91 would ordinarily not come till the stage of defence. When the section states about the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such prayer for summoning and production is made and the party who makes it, whether the police or the accused. Since at the stage of discharge or framing of charge under Section 227/228 Cr.P.C only the material relied upon by the prosecution has to be looked into, the request made by the accused for producing documents in defence is totally irrelevant in the context of the stage of trial. Reliance is placed on State of Orissa vs. Debendra N. Padhi, 2005 (1) SCC 568 [LQ/SC/2004/1345] and Om Prakash Sharma vs. CBI, 2000 (5) SCC 679 [LQ/SC/2000/766] to canvass that invocation of Section 91 Cr.P.C at the preliminary stage of trial is not permissible.

(7) It is contended that the Petitioner is not entitled to ask for the documents which are not relied upon by the CBI and that the Petitioner is only entitled to the documents which are referred to in Section 207 or 208 Cr.P.C. The right of the accused with regard to the disclosure of documents is a limited right and the accused cannot claim an indefeasible legal right to claim documents of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173 (2) Cr.P.C. as per the order of the Court. In the present case the complaint was filed under Section 13 (3) of the OS Act and the provisions of Section 208 Cr.P.C. are applicable which reads, Any documents produced before the Magistrate on which the prosecution proposes to rely and thus what is referred in Section 208 (iii) are the documents filed along with the complaint under Section 13 (3) of the OS Act and nothing more than that. Sections 207 and 208 Cr.P.C. pertains to the documents which are commonly known as police report which are to be supplied to the accused with the objective to make him aware of the materials which are sought to be utilized against him. In this regard reliance is placed on Sidhartha Vashisth @ Manu Sharma vs. State, 2010 (6) SCC 1 [LQ/SC/2010/412] , Suptd. and Remembrance of Legal Affairs, West Bengal vs. Satyen Bhowmick and others, 1981 (2) SCC 109 [LQ/SC/1981/31] and Naresh Kumar Yadav vs. Ravindra Kumar and Ors. 2008 (1) SCC 632 [LQ/SC/2007/1304] .

(8) It is further contended that the documents referred by the Petitioner are the internal communication between the officers of the Respondent. FR-I and FR-II which are the opinions of the Investigating Officer and the Law Officer and which are not being relied upon by the prosecution, are for the in house use of the CBI, not supposed to be discussed or quoted outside. Reference is made to Sunita Devi vs. State of Bihar, 2005 (1) SCC 608 [LQ/SC/2004/1380] . The present petition deserves to be dismissed as the same seeks a relief which cannot be granted by this court in a Writ Jurisdiction.

(9) I have heard learned counsel for the parties. The first and foremost issue would be the scope of consideration of the impugned order in a writ petition. The Honble Supreme Court in Surya Devi Rai vs. Ram Chander Rai and others, 2003 (6) SCC 675 [LQ/SC/2003/758] following the Constitution Bench in T.C. Basappa vs. T. Nagappa, AIR 1954 SC 440 [LQ/SC/1954/86] observed as under:-

14.......That certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amendable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amendable to a writ of certiorari.

(10) I would now proceed to examine the impugned order passed by the learned Trial Court in the light of the above mentioned decision rendered by the Constitution Bench. The learned Trial Court discarding the plea of privilege raised by CBI, held that from a perusal of the decisions rendered by the Honble Supreme Court and this Court it was clear that copies of all the documents which are to be used against the accused must be supplied to him whether the prosecution terms them to be classified or not. It was held that in the present case the documents sought in the application under Section 91 Cr.P.C. are not being relied upon by the CBI, thus not being used against the accused during the course of the trial and so the accused is not entitled to their production.

(11) Section 91 Cr.P.C. states:-

(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) XXXX XXXX XXXX (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) XXXX XXXX XXXX Thus, this Section 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 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.

(12) The stage of trial in the present case is pre-charge evidence. This Court vide order dated 15th February, 2010 while permitting the Petitioner to withdraw the petition that is Criminal M.C. 1927/2009 directed that the pre-charge evidence should be recorded expeditiously and to be concluded within one year from that date. The case of the Petitioner is that he requires the said FRs for the purpose of his defence to show that he has been falsely implicated. A final report prepared after investigation is an opinion rendered by the Investigating Officer. The said opinion cannot bind either his Superior Officer or any other person much less the Court. By the impugned application the Petitioner does not seek the statements of the witnesses but the final opinions of the Investigating Officer. These opinions are not statements of facts and thus not relevant. They are not even relevant under Section 45 of the Evidence Act which makes the opinion evidence relevant as the opinion so envisaged under the Section is that of an expert upon a point of (a) foreign law, (b) science, (c) art, (d) identity of handwriting, and (e) finger impression. An Investigating Officer can by no stretch be considered to be an expert and thus his opinion is not relevant. Even if considered as the statement of Investigating Officer, these opinions cannot be used except for the limited purpose of confronting the Investigating Officer as no other witness is bound by it. It is not the case of the petitioner that DSP Ram Chandra is cited as a witness and these documents are required to confront him. There is yet another fallacy in the argument of the learned counsel for the Petitioner. It is settled law that the Court while recording evidence has to examine the relevant and admissible statements and documents and not the opinion of the Investigating Officer.

(13) In Mohammed Ankoos and Ors. vs. Public Prosecutor, HC of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 [LQ/SC/2009/1989] , it has been held by the Honble Supreme Court: A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that the accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. The courts power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172(2), it is not open to the court to place reliance on the case diary as a piece of evidence directly or indirectly.

(14) In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), 2010 (6) SCC 1 [LQ/SC/2010/412] it was held: 220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the Court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the Court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely. 221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bonafidely and has bearing on the case of the prosecution and in the opinion of the public prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially. 222. The concept of disclosure and duties of the prosecutor under the English System cannot, in our opinion, be made applicable to Indian Criminal Jurisprudence stricto senso at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any set back in the facts and circumstances of the case. The accused even did not raise this issue seriously before the Trial Court.

(15) In Sunita Devi (supra) while dealing with Section 207 and 208 of the Code as regards the documents to be supplied to the accused it was held:

27. The supervision notes can in no count be called. They are not a part of the papers which are supplied to the accused. Moreover, the informant is not entitled to the copy of the supervision notes. The supervision notes are recorded by the supervising officer. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr. It was held that non-supply is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. The supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. At the same time the accused cannot make any reference to them for any purpose. If any reference is made before any court to the supervision notes, as has noted above they are not to be taken note of by the concerned court. As many instances have come to light when the parties, as in the present case, make reference to the supervision notes, the inevitable conclusion is that they have unauthorized access to the official records. We, therefore, direct the Chief Secretary of each State and Union Territory and the concerned Director General of Police to ensure that the supervision notes are not made available to any person and to ensure that confidentiality of the supervision notes is protected. If it comes to light that any official is involved in enabling any person to get the same appropriate action should be taken against such official. Due care and caution should be taken to see that while supplying police papers supervision notes are not given.

(16) The reliance of the Petitioner on the decision in the case of Neelesh Jain (Supra) is misconceived. In the said case the investigating agency had recovered documents like photos, love letters between the prosecutrix and the accused Petitioner, some STD bill slips and a ledger book. The Petitioner therein was facing prosecution for offences under Section 342/376 (g)/323/328 IPC. The photos, the love letters and the STD bills being that of the prosecutrix were certainly documents which were relevant for confronting the prosecutrix when she would have entered the witness box. It is for this reason the Court held those documents to be necessary and desirable. In Neelesh Jain (Supra) the Court also noted Navin Ramji Kamani vs. Shri K.C. Shekhran, Dy. Chief Controller of Imports and Exports (supra) and held: 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 Cr.P.C. 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." Similar view has also been expressed in Rajesh Prasad v. State of Rajasthan 1998 (Supp) Cri.L.R.265.

(17) The case of the Petitioner is that according to him he believes that DSP Ram Chandra exonerated him and since he had exonerated him the subsequent handing over of the investigation to Inspector Ram Chander Garvan was a reinvestigation and not a further investigation. It is contended that the Honble Supreme Court in Ram Chandra (supra) and Virender Prasad Singh (supra) has held that under Section 173 (8) Cr.PC the police has a right to further investigate and not reinvestigate. This contention of the Petitioner is at the outset fallacious. In the present case no charge sheet has been filed. A complaint has been filed by Inspector Ram Chander Garvan who is the complainant, along with the list of witnesses and documents. The decision referred to applies in a case where after filing of the charge sheet, that is, a report under Section 173 Cr.PC the investigating agency proceeds to further investigate the matter under Section 173(8) CrPC, when it cannot reinvestigate. Since no charge sheet has been filed under Section 173(2) CrPC the stage of Section 173(8) Cr.P.C. has not arrived. Moreover, before a charge sheet is filed under Section 173 CrPC the Investigating Agency is bound to investigate into all aspects of the matter and file a report thereon. During the pendency of the investigation there is no bar, if on being not satisfied by one officer the investigation is transferred to another officer by the senior officer and a final report is filed on being satisfied by the investigation conducted. Moreover, in the present case, since it is proceeding as a complaint, no charge sheet under Section 173(2) Cr.P.C. is filed but a complaint has been filed.

( 18. ) In State of Orissa vs. Debendra N. Padhi (Supra) while considering the scope of Section 91 Cr.P.C. the Honble Supreme Court held:

25. 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 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 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.

26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI. 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 Satish Mehras case (supra). The contentions based on Satish Mehras case have been noticed in para 4 as under: "4. The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn., 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. 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 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.

27. 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 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 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 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 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.

28. 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 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.

(19) As held in Sidhartha Vashisht (Supra) the accused cannot claim an indefeasible legal right to claim every document of the police file. Even giving an expanded application to the doctrine of disclosure, the Petitioner is neither entitled to these documents, nor is it the stage necessitating production under Section 91 Cr.P.C. nor the transfer of investigation to another officer amounted to reinvestigation forbidden under Section 173(8) Cr.P.C and does not call for issuance of a writ in terms of the dictate of the Honble Supreme Court in T.C. Basappa (Supra).

(20) Writ petition is dismissed.