REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2114 OF 2017 (Arising out of Special Leave Petition (Crl.)No.8279 of 2016)

NITYA DHARMANANDA @ K. LENIN & ANR.         …APPELLANT(S)

VERSUS

SRI GOPAL SHEELUM REDDY ALSO KNOWN AS NITHYA BHAKTANANDA AND ANR.            …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 2115 OF 2017 (Arising out of Special Leave Petition (Crl.)No.1176 of 2017)

STATE OF KARNATAKA       …APPELLANT(S)

VERSUS

GOPAL SHEELUM REDDY ALSO KNOWN AS NITHYA BHAKTANANDA            …RESPONDENT(S)

O  R  D  E  R

1. Delay condoned.  Leave granted.

2. We  have  heard  learned  counsel  for  the  State,  the complainant, the accused and the learned amicus, Mr. Siddharth Luthra, Senior Advocate.

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3. The  respondent,  Gopal  Sheelum  Reddy  alias  Nithya Bhaktananda, was charge sheeted for offences,  inter alia, under Section  376  of  the  Indian  Penal  Code.   The  respondent approached  the  High  Court  with  the  prayer  that  the  entire material available with the investigator, which was not made part of the chargesheet, ought to be summoned under Section 91 of the Cr.P.C.  The High Court, reversing the contrary view of the trial court, allowed the said application.

4. Contention raised on behalf of the appellants is that the view of the High Court is contrary to law laid down by this Court in State of Orissa  versus  Debendra Nath Padhi (2005) 1 SCC 568  and  reiterated  in  the  subsequent  decisions.   The  defence could not be considered at the stage of framing of charge so as to avoid a mini trial.   

5. Learned  counsel  for  the  defence,  on  the  other  hand, submitted that if the investigator is not fair and the material of sterling quality, though seized during investigation and available with him, is deliberately left out from the chargesheet, there is no bar for the court to summon the said material.

6. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91.  However,  the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right

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to invoke Section 91.  To exercise this power, the court is to be satisfied  that  the  material  available  with  the  investigator,  not made part of the chargesheet, has crucial bearing on the issue of framing of charge.  

7. In Debendra Nath Padhi, supra, it was observed: “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. 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

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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.”

8. In  Hardeep Singh Etc.  versus  State of Punjab and

ors. Etc. (2014) 3 SCC 92 a Bench of five-Judges observed:

“19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will  be  inappropriate  to  deny  the  existence  of  such powers  with  the  courts  in  our  criminal  justice  system where  it  is  not  uncommon  that  the  real  accused,  at times,  get  away  by  manipulating  the  investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.”

9. Thus, it is clear that while ordinarily the Court has to proceed on  the  basis  of  material  produced  with  the  charge  sheet  for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the  investigator/prosecutor,  the  court  is  not  debarred  from summoning or relying upon the same even if such document is not a part of the charge sheet.  It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.

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10. Accordingly,  the  view  to  the  contrary  in  the  impugned judgment cannot be sustained and is set aside.

11. The trial court may now proceed to deal with the issue of framing  of  charge  in  the  light  of  the  observations  made hereinabove and also to proceed with the matter expeditiously in accordance with law.

The parties are directed to appear before the trial court for further proceedings on Monday, the 12th February, 2018.

We record our deep appreciation for the valuable assistance rendered  by  Mr.  Siddharth  Luthra,  learned  senior  counsel,  as amicus.

The appeals are accordingly disposed of.

………………………………J. (ADARSH KUMAR GOEL)

………………………………J. (UDAY UMESH LALIT)

NEW DELHI; DECEMBER 7, 2017.

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