Section 91 CrPC | During Framing Of Charges Accused Can Seek Production Of Documents Submitted To IO Even If He Possesses Them: Bombay High Court

The Bombay High Court held that under section 91 of the CrPC, an accused at the stage of framing of charges, can seek production of potentially exculpatory documents voluntarily submitted to investigating officer (IO) even if he has the documents in his possession and submitted copies to the IO.

Justice Bharati Dangre set aside a sessions court order refusing to direct the IO to produce documents submitted by the accused on the ground that the accused already had possession of documents and could produce them during trial.

The court reasoned that the documents produced through the IO as being received by him during the investigation would be significant instead of the accused producing them before the court in defence as there can be a clarification at the stage of framing of charges itself as to what documents were furnished by the accused during the investigation.

“Moreover, there shall be a clarification at this stage about what documents are furnished by the accused as at the time of trial, the Investigating Offcer may dispute the documents/material and its contents and therefore if the accused/Petitioner intends to have these documents produced at the time of framing of charge, provided the court is satisfied about its necessity and desirability for the purpose of trial, such application deserve to be granted”, the court added.

The court was dealing with a writ petition filed by one Dr. Sublendu Prakash Diwakar seeking to set aside an order dated August 29, 2023, passed by the Additional Sessions Judge of the City Civil and Sessions Court, Greater Mumbai. The order dismissed his application under Section 91 of the CrPC seeking the production of documents submitted during the investigation but not filed with the charge sheet.

The petitioner is accused in a rape case under the false promise of marriage registered on October 14, 2020, under Sections 376, 376(2)(n), and 506 of the IPC and section 66(E) of the Information Technology Act.

After the investigation, a charge sheet was filed before the court. The petitioner claimed that vital documents supporting his innocence were arbitrarily excluded. He filed an application under Section 91 of the CrPC seeking the production of documents allegedly withheld by the IO with the intent of proving a consensual relationship between himself and the complainant.

The sessions court rejected his plea observing that he already possessed the documents, having submitted copies to the IO during the inquiry. The judge emphasized that the accused could directly present them in court, rendering the application under Section 91 unnecessary. Thus, the petitioner filed the present writ petition challenging this order.

The court acknowledged that during an investigation, the IO might collect various documents, including those voluntarily submitted by the accused. The court recognized the potential existence of exculpatory evidence not relied on by the IO that could support the innocence of the accused.

As per Supreme Court judgment in State of Orissa v. Debendra Nath Padhi, an accused cannot invoke Section 91 at the framing of charges stage. However, the court referred to subsequent judgments in Rukmini Narvekar v. Vijaya Satardekar and Nitya Dharmananda Alias K. Lenin v. Gopal Sheelum Reddy which allowed consideration of defence material at the stage of framing of charges in exceptional cases.

The court relied on the Draft Criminal Rules and Practice 2021, resulting from the directives of the Apex Court in a suo moto case 'Criminal Trials Guidelines Regarding Inadequacies and Defciencies, in RE v. State of Andhra Pradesh'. The court cited Rule 4, mandating the prosecution to furnish to the accused a comprehensive list of statements, documents, material objects, and exhibits—whether relied upon or not in the charge sheet. Once a list is furnished, the accused may seek production of such documents under section 91 of CrPC and the court may grant it if the document is relevant, the court said.

Even if initially submitted by the accused during the investigation, these documents are now deemed to be under the custody of the IO, the court said. The court opined that the production of the concerned documents is necessary and desirable as they would enable the accused to prove his innocence.

The court set aside the impugned order, directing the Additional Sessions Judge to ensure the production of documents sought by the petitioner even though it is at the stage of framing of charge, as this will assure fairness in the trial. Until the requested documents are produced, proceedings in the case against the petitioner shall not proceed, the court directed.

Advocates Siddhesh Bhole, Yakshay Chheda and Gautam Khazanchi i/b SSB Legal and Advisory represented the Petitioner.

APP SR Agarkar represented the State.

Case no. – Criminal Writ Petition (St) No. 17507 of 2023

Case Title – Dr. Sublendu Prakash Diwakar v. State of Maharashtra

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