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PETITIONER: OM PARKASH SHARMA

       Vs.

RESPONDENT: CENTRAL BUREAU OF INVESTIGATION, DELHI

DATE OF JUDGMENT:       24/04/2000

BENCH: Doraiswamy Raju, S.S.Ahmad

JUDGMENT:

     Raju, J.

     Leave  granted.   The  above  appeal  has  been  filed against  the order of the learned Single Judge of the  Delhi High  Court  dated  4.1.99 in Criminal  Revision  No.123/97, repelling  a  challenge  made  to the order  passed  by  the Special  Judge,  Delhi,  on 26.11.96 in  Sessions  Case  No. OC-224/94,  rejecting  an application made by the  appellant under  Section 91, Cr.P.C., for summoning and production  of documents  enumerated  in the application.  Those  documents were  stated  to be required to show that the appellant  had not  shown  any  favour to persons commonly  known  as  Jain Brothers  or to any person for that matter in the course  of discharge  of his duties while working as DIG, CBI, and that present  action against the appellant is vitiated on account of  malafides on the part of the CBI, who is alleged to bear animus against the appellant.

     The  said  application was hotly contested by the  CBI and the Special Judge held that none of the documents sought to  be  summoned  would help to show that the  case  of  the prosecution  was improbable or unworthy of even a trial  and that  summoning  them at that stage of the  proceedings  was meant by the appellant to delay the proceedings initiated by the   CBI.    The   appellant,  as   noticed   supra,   also unsuccessfully knocked at the doors of the High Court before approaching this Court.  The learned Judge in the High Court elaborately  considered  the governing legal  principles  as laid down by the Courts and the factual details produced and observed that though the language of Section 91, Cr.P.C., is very  wide,  not  only  the  powers  have  to  be  exercised judiciously but such jurisdiction to order for production of a  thing or document would come into play on the Court being satisfied  that  it  is necessary or desirable,  that  it should  be  produced  as  being relevant  for  the  inquiry. Therefore,  the learned Judge proceeded to advert in  detail to  the reasons assigned by the Special Judge and  concurred with  them  that  those documents are not of such  a  nature which  would  show  that  the case  of  the  prosecution  is improbable  and unworthy of trial and that the said  attempt of  the  appellant  was  merely to  delay  the  proceedings, leaving  liberty  to summon them at the relevant time.   The exercise of discretion by the Trial Judge in disallowing the claim  was considered to be neither unjust nor  unreasonable or improper and the order was held to be neither illegal nor vitiated  by any infirmity, so as to call for  interference,

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in  exercise  of  the revisional jurisdiction  of  the  High Court.

     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  vs  Delhi  Administration   and Another.   [(1996)  9 SCC 766] laying emphasis on  the  fact that  the  very learned Judge in the High Court has taken  a different  view in such matters, in the decision reported in Ashok  Kaushik  vs  State [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 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.

     Section  227  in  Chapter XVIII, pertaining  to  trial before  a  Court of Sessions, pursuant to a committal  order and  Section 239 in Chapter XIX relating to trial of warrant cases   by   Magistrates,  of   the  Code   stipulates   the circumstances  and stage at which there could be a discharge of  the  person  accused,  and  that stage  is  a  stage  of consideration, anterior in point of time to framing charges. It  is  envisaged  therein that upon  consideration  of  the record  of  the  case,  Police   Report  and  the  documents submitted  therewith  and after hearing the prosecution  and the  accused, the Court is obligated to decide whether there is  sufficient ground to proceed against the accused or that the  charge  is  groundless - and as a  consequence  thereof either discharge the accused or frame in writing the charges against  the accused.  The decision reported in (1996) 9 SCC 766  (Supra)  and  the other decisions adverted  to  therein dealt  with, no doubt, the manner of exercise of such powers and the object underlying those provisions of the Code while construing the amplitude of both the language and content of powers  conferred therein.  It is in this context this Court held  that  there is nothing in the Code which  shrinks  the scope  of  hearing by confining it to only oral argument  of the  accused and consideration based upon the police  report and  documents sent therewith or the materials presented  by the  prosecution at that stage.  In substance, looking  into also,  by receiving any materials which the accused is  able to produce in support of his stand during such arguments was held  to  be  not an anathema.  The further question  as  to whether  even at that stage Section 91 of the Code could  be pressed  into  service  by  the accused  was  never  in  the contemplation or consideration by the learned Judges.

     The  powers conferred under Section 91 are enabling in nature aimed at arming the Court or any officer in charge of a  Police  Station  concerned to enforce and to  ensure  the production  of  any document or other things  necessary  or desirable  for the purposes of any investigation,  inquiry, trial  or  other  proceeding under the Code,  by  issuing  a summons  or  a written order to those in possession of  such material.   The  language  of Section 91  would,  no  doubt, indicate  the  width of the powers to be unlimited  but  the in-built  limitation  inherent therein takes it  colour  and shape  from  the  stage or point of time  of  its  exercise,

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commensurately  with  the nature of proceedings as also  the compulsions  of  necessity and desirability, to  fulfil  the task  or  achieve the object.  The question, at the  present stage  of the proceedings before the Trial Court would be to address  itself  to find whether there is sufficient  ground for  proceeding  to the next stage against the accused.   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 even look into the materials  so  produced may result in injustice, apart  from averting  an exercise in futility at the expense of valuable judicial/public  time.  It is trite law that the standard of proof  normally  adhered to at the final stage is not to  be insisted  upon at the stage where the consideration is to be confined  to find out a prima facie case and decide  whether it  is necessary to proceed to the next stage of framing the charges  and making the accused to stand trial for the same. This  Court  has  already cautioned  against  undertaking  a roving  enquiry  into  the  pros and cons  of  the  case  by weighing  the evidence or collecting materials, as if during the  course  or after trial vide Union of India vs  Prafulla Kumar  Samal  &  Anr.  [(1979) 3 SCC 4].   Ultimately,  this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for  all times.  The fact that in one case the Court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and  for  the  mere  asking.  The Court  concerned  must  be allowed  a  large  latitude  in the matter  of  exercise  of discretion and unless in a given case the Court was found to have  conducted  itself in so demonstrably  an  unreasonable manner  unbecoming  of  a   judicial  authority,  the  Court superior to that Court cannot intervene very lightly or in a routine  fashion to interpose or impose itself even at  that stage.  The reason being, at that stage, the question is one of  mere  proprieties involved in the exercise  of  judicial discretion by the Court and not of any rights concretised in favour of the accused.

     Therefore,  it  is to be only seen as to  whether  the Trial  Court  has judiciously and judicially  exercised  its discretion.  The Trial Court as also the High Court, seem to have  properly applied their minds by going into the  nature of  the  documents sought to be summoned, their bearing  and relevance for the nature of consideration to be made at that stage of the proceedings before the Special Judge as well as the  necessity and desirability whereof.  The  consideration so  made  by the courts below in rejecting the claim of  the appellant,  could  not be held to be either  condemnable  or constitute  any gross or improper failure to exercise  their jurisdiction  and  consequently,  it does not call  for  any interference  in our hands.  Therefore, the appeal fails and shall stand dismissed.

     The  learned counsel for the appellant brought to  our notice  certain  observations made in the order of the  High Court  about the alleged conduct of the appellant on receipt of the bribe amount and immediately after the arrival of the raiding party which are not borne out by the facts stated in the  FIR  but  which  are really matters  for  evidence  and argument.   The  Trial  Court  is   not  only  expected  but obligated  to proceed in the matter only strictly as per the materials  placed on record and the evidence that may be let in  at  the  appropriate  stage,   unmindful  of  any   such observations  and there is no need for this Court, to decide

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such grievance at this stage.