The petitioner is the 6th accused in C.C. No. 22 of 1972 on the file of the Munsif Magistrate, Sangareddi.
2. The Station House Officer, Sangareddi Police Station filed charge-sheet against the petitioner and 7 others for offences punishable under Section 409, Indian Penal Code before the Munsif Magistrate Sangareddi. The learned Magistrate took it on file and framed one charge against each accused. The charge against the petitioner reads as follows :
"That you A-6 during 1963 to 1965 at Sangareddi being entrusted with the property of the Co-operative Marketing Society at Sangareddi in your capacity as a public servant, namely, the president of the said society committed criminal breach of trust in respect of the property of the said Co-operative Marketing Society, Sangareddi to a tune of Rs. 37,404.13 and thereby committed an offence punishable under Section 409, Indian Penal Code and within any cognizance."
3. Before framing of the charge, the revision petitioner filed criminal miscellaneous Petition No. 152/74 to send or the documents, the certified copies of which were filed so that the Magistrate may consider them and frame proper charge against him.
4. According to him, the documents relate to the proceedings before arbitrator and award passed by the arbitrator and also the decision of the High Court in C.R.P. No. 926 of 1970 in respect of the same matter. The petitioner submitted before the Magistrate that the matter was referred to arbitrator by both parties and the arbitrator passed award fixing the liability against the petitioner for a sum of Rs. 10,056.82 p. and against that award, the petitioner preferred C.R.P. 926 of 1970 in this court and Obul Reddi, J., (as he then was) fixed the liability at Rs. 5,185.82 P. and modified the award to that extent and he, therefore, contended that the liability to be fixed against the petitioner would be to the extent of Rs. 5,185.82 p. but not to the extent of Rs. 37,404.30 Ps. and if the documents sought to be summoned for by the accused are considered by the Magistrate, there is sufficient material in support of the case of the petitioner and they should, therefore, be summoned and perused for the purpose of framing proper charge.
5. But the learned magistrate dismissed that petition holding that those documents would be relevant at the stage of defence but not at that stage, as the stage of the case then was to charge or discharge the accused. After dismissing the petition, the learned Magistrate framed the aforesaid charge against the petitioner.
6. Aggrieved with the said order of dismissal this revision petition is filed.
7. The learned counsel for the petitioner contends that the magistrate has got the power to sent for the documents required by the accused under Section 91, Criminal Procedure Code even before framing the charge and the documents should be summoned, in fact, for the purpose of framing proper charge and the decision of the Magistrate that those documents would be summoned and considered at the stage of defence but not at the stage of framing the charge is erroneous and improper.
8. From the facts mentioned above, it is clear that the petitioner prayed the Magistrate to summon the documents on which he relies so that he (Magistrate) can peruse those documents and frame proper charge and the petitioner sought that the provisions of Section 91, Criminal Procedure Code should be invoked in support of his contention.
Section 91(1) reads as follows :-
"Whatever any Court or any Officer-incharge 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."
9. A perusal of the provisions of Section 91, Criminal Procedure Code discloses that this section confers power on the court to summon any document, if it finds that the summoning of such a document is desirable in the interests of justice and that such power can be exercised even for the purpose of framing proper charge. The word 'whenever' with which Section 91 begins indicates that the court is empowered to do so whenever the court finds it necessary or desirable to act upon that provision.
10. It is true that Section 243(2), Criminal Procedure Code confers a right on the accused to apply for the production of any document after he has entered upon his defence and in such a case a duty is cast on the Magistrate to issue such process, unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. Thus, the right given to the court under Section 91 is undoubtedly different from the right given under Section 243(2), Criminal Procedure Code. Relying upon the provisions of Section 243(2), Criminal Procedure Code it cannot be argued that the accused has no right to apply for the production of any document at the stage of framing of charge or at any other stage before the accused has entered upon the defence, as Section 91, Criminal Procedure Code gives such a right to the accused independent of the provisions of Section 243(2) Cr.P.C. The right given to the accused under Section 91 is the general right and it is in no way, circumscribed or controlled by Section 243(2) Cr.P.C. The accused, is entitled to invoke the benefit given under Section 91 at any stage, may it be at the stage of investigation or inquiry or at the stage of trial or any other proceeding under the Code. By providing this section the Legislature has endowed the courts with wide powers of ordering production of documents necessary for determination of matters before the Courts.
11. A Division Bench of this Court held in In re Raghotham AIR 1963 Andh Pra 362 = (1963 (2) Cri LJ 253) that specific right vested in the accused to require the court to summon the production of documents after summoning the witnesses under Section 251(A)(9), Criminal Procedure Code (Old code) is not inconsistent with the general right conferred on the court by Section 94, Criminal Procedure Code (old code), that Section 94 being a general power which can be exercised by the Court, whenever occasion arises, would also include cases where even the accused applies for the production of documents that the power contained in Section 257 or 251(A)(9) cannot strictly be said to be the only mode of exercise of the power under Section 94 while no doubt it is one of the occasions when it exercises its power to summon the documents and that if so understood, there will be no difficulty in giving free play for the exercise of power by the Magistrate under Section 94, Criminal Procedure Code (old code). The learned Judges finally held that even before the stage of framing of the charge, if an accused applies for summoning any document and the court comes to the conclusion that in the interests of justice it is desirable to do so, it can exercise that power under Section 94.
12. It is, therefore, clear that the accused is entitled to apply under Section 91, Criminal Procedure Code for summoning the documents on which he wants to rely even before charges are framed and the Magistrate is empowered to do so provided that he deems it necessary or desirable.
13. The learned public prosecutor contends that the question whether the production of a particular document is necessary or not is within the discretion of the trial court and this court cannot interfere with the discretion of the trial court in the matter of summoning the document. In support of his contention, he relied upon a decision of Supreme Court in Asst. Customs Collector, Bombay v. L. R. Melwani, AIR 1970 SC 962 = (1970 Cri LJ 885) and also a decision of Kondaiah, J., in Somayya in re (1969) 1 Andh WR 530 = (1970 Cri LJ 618).
14. There is no dispute with regard to the proposition of law that summoning of document is purely a matter concerned with the discretion of the trial Court and ordinarily the High Court cannot interfere with such a discretion of trial Court. But the Supreme Court as well as this court in the above cited decisions held that High Court can interfere if the Magistrate fails to exercise his discretion judicially. It is, therefore, necessary for the Magistrate to exercise his discretion properly. In other words, the Magistrate must satisfy himself whether the document on which the accused seeks to rely has a bearing upon or is irrelevant to the case. If, upon satisfying himself that the document has no bearing, he declines to sent for it, it can be deemed that he has exercised his discretion judicially and in such a case this court cannot interfere in revision.
15. The question is whether the magistrate satisfied himself that the documents on which the accused relies have bearing upon or are irrelevant. Evidently he has not done so, even though the petitioner filed the certified copies of the documents. For his failure to consider whether those documents are necessary or not, the reasons are obvious. The magistrate thought that those documents can be considered only after the accused enters upon defence but not at the stage of framing charge. This view of the magistrates is undoubtedly erroneous. The documents which are sought to be summoned by the accused are public documents. They also relate to the same proceedings now before the Magistrate. They cannot be said to be irrelevant. As the documents are important so far as the case of the accused is concerned, the Magistrate ought to have summoned and perused them even for the purpose of framing a charge. If, after perusal of the documents the Magistrate does not find any material in support of the contention of the petitioner with regard to the extent of liability he can frame the same charge. On the other hand, if he finds material in support of the petitioner's case, he has to frame a different charge. Merely because the Magistrate summons and peruses the documents on which the petitioner relies, it cannot be said that the Magistrate is bound to accept the petitioner's case for framing the charge. It is always open to him to frame a charge only on the basis of material available from the records and documents before him. The Magistrate is, therefore, not justified in thinking that the documents need not be summoned and perused at the stage of framing charge.
16. Hence I have no hesitation to hold that he has not exercised his discretion judicially while refusing to sent for the documents. I therefore, hold that the decisions on which the learned public prosecutor relies do not help him in the given circumstances of the case.
17. I, therefore, set aside the order of the learned Magistrate quash the charge framed against the petitioner-accused and direct the Magistrate to peruse the documents on which the petitioner-accused relies and frame appropriate charge after perusing them. The revision petition is allowed.