- (1.) J. C. S. Rawat This criminal revision has been filed against the orders dated 29-03-2006, and 03-04-2006 passed by the Judicial Magistrate, Srinagar, Garhwal in crimi nal case No. 478/2004, State Vs. Sandeep Kumar and another under section 419/420 IPC. Vide order dated 29-03-2006 the Magistrate directed the Principal Government Polytechnic Srinagar Pauri Garhwal to produce all material relating to the Uttaranchal Pre- Medical Test Examination 2004 and vide order dated 03-04-2006 the Mag istrate directed the Educational Consultant India Ltd. to produce the entire material of Uttaranchal Pre-Medical Test Examination 2004 held on 24-04-2005 in Government Polytechnic Srinagar relating to roll No. 6011212 (Amit Kumar Chauhan ).
(2.) BRIEF fact of the case are that when the Uttaranchal Pre-Medical Test 2004 was being conducted on 22-05-2004 at Government Polytechnic Srinagar, Pauri Garhwal, a first informa tion report was lodged against the ap plicant that instead of applicant some body else appeared in the examination. Thereafter, the police investigated the matter and submitted the chargesheet against the applicant and one-Sandeep Kumar. On 29-03-2006 the Magistrate directed the Principal Government Poly technic Srinagar Pauri Garhwal to pro duce all material relating to the Uttaranchal Pre-Medical Test Examina tion 2004. But, the said documents could not be received on the next date. Thereafter, on 03- 04-2006 the Magis trate directed the Educational Consult ant India Ltd. to produce the entire material of Uttaranchal Pre-Medical Test Examination 2004 held on 24-04- 2005 in Government Polytechnic Srinagar relating to roll No. 6011212 (Amit Kumar Chauhan ). Feeling ag grieved by these two orders, the present revision has been filed before this Court. Heard Sri Arvind Vashisht learned counsel for the revisionist and Sri A. Rab learned Addl. G. A. Learned counsel for the revision ist contended that the orders passed by the Magistrate are illegal and bad in law. It was further contended that after recording the statement of the revisionist under section 313 Cr. P. C. the case was fixed for argument. Thereafter, the arguments were heard on 25-03- 2006 and the case was ordered to be put up for judgment on 29-03-2006. On 29-03-2006 instead of pronouncing the judgment the court below passed the impugned order. It was contended that the Magistrate has no power to sum mon the said documents from the aforesaid institutions. The prosecution has relied upon the said documents and the Magistrate has passed the order to summon the original document of the same. The Magistrate has no power to summon those documents from the aforesaid authorities. It was further con tended that it would amount to help the prosecution. Learned Addl. G. A. re futed the contention. Before entering into the contentions of the parties, I would like to refer the legal position in this regard. Section 311 Cr. P. C. deals with the summoning of the witnesses by the Court for just decision of the case. But, that section does not deal with the summoning of the documents. It is obligatory on the part of the court to sum mon the witness in case his evidence appears to be essential for just decision of the case. Such power can be exer cised at any time. However, the power is circumscribed by the principle under lying in the section, that is, the evidence to be obtained must be essential for the just decision of the case. Whereas the section 91 Cr. P. C. deals with the sum moning order to produce the document or other thing. It is obligatory on the part of the court while summoning the document that the said document must have some relation to or connection with the subject matter of investigation, inquiry, trial or other proceeding. The production of such documents must be 'necessary' or 'desirable'. Any person appearing in court in pursuance of the summons under section 91 cannot be examined and cross examined by the court if he has not been cited as a wit ness in the proceedings.
(3.) THE powers conferred under sec tion 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 "neces sary or desirable" for the purposes of any investigation, inquiry, trial or other proceedings under the Code, by issuing a summons or a written order to the person in whose possession such documents or material is believed to be. THE language of section 91, no doubt, indicate the width of the powers to be un limited but the inbuilt limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the na ture of proceedings as also the compul sions of necessity and desirability, to fulfill the task or achieve the object. It was contended that the Mag istrate has not pointed out in the im pugned orders that the said document is necessary or desirable. Perusal of the entire impugned orders reveals that the document is necessary and desirable. It can be seen on the other angle that the photocopies have been filed before the court and the court below is in difficultly to come into the conclusion without seeing the original documents. As such, the original documents have been summoned in this case. If is per tinent to mention here that section is not limited only for the benefit of the accused and it will not be an improper exercise of the powers of the court to summon a document because the evi dence supports the prosecution case and not the accused. It has been held in Om Prakash Sharma Vs. CBI, Delhi reported in 2000 SCC (Cri) pi'1014 that: "6. . . . . . . , 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 cir cumstances to do so in all the 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 con ducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the court su perior 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 concretized in favour of the accused. ";