Section 91 CrPC | Desirability Of Issuing Summons Be Judged Commensurate With Stage At Which Power Is Exercised: Kerala High Court

The Kerala High Court recently laid down that Section 91 CrPC, which provides for the issuance of summons to produce document or other thing for the purposes of any investigation, inquiry, trial or other proceeding, is enabling in nature and the power under it would have to be judged commensurate with the stage or point of time it is exercised. 

"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 ensure the production of any document or other things necessary or desirable for the purpose of any investigation, enquiry, trial or other proceedings under the Code by issuing summons or a written order to those in possession of such materials," Justice K Babu observed. 

The petitioner, who was working as the Secretary of Vellanadu Grama Panchayat at the relevant time, had allegedly demanded money from the de facto complainant for issuing a pass for removing soil from her property.

Although the de facto complainant handed over the amount as "trap money" upon informing Vigilance of the same, the petitioner could not be arrested on the spot as he fled on seeing the Vigilance team. He was apprehended some distance away from the place where the trap money had been handed over. The phenolphthalein test that was conducted turned negative.

Disputing the allegation, the petitioner averred that he did not demand any money and that the events that transpired at the scene could be ascertained from CCTV footage. He filed an application under Section 91 CrPC for issuance of summons to proprietors of 4 nearby shops to produce the hard disk of CCTVs.

The Trial Court dismissed the application holding that the petitioner had no right to make an application under Section 91 CrPC for production of documents at that stage. It was against the Trial Court's dismissal order that the present plea was filed. 

The High Court took note of the decision in State of Orissa v. Debendra Nath Padhi (2005), in which the Apex Court laid down that the necessity and desirability of invoking jurisdiction under Section 91 CrPC would have to be ascertained by the court in the context of the purpose — investigation, inquiry, trial or other proceedings under the Code. 

Taking note of the inherent limitations as to the stage or point of time of exercise of power under Section 91 CrPC, the court observed, 

"The necessity and desirability of invocation of power under Section 91 would have to be judged commensurate with the stage or point of time it is exercised". 

Finding that the petitioner did not focus on any desirability or necessity of the documents sought to be summoned, the court was of the considered view that he was not entitled to invoke Section 91 CrPC at the stage. The plea was thus dismissed. 

Counsel for Petitioner: Advocates R Bindu, R Jayakrishnan, and G Rajagopal

Counsel for Respondents: Senior Public Prosecutor A Rajesh 

Citation: 2023 LiveLaw (Ker) 702

Case Title: Gopakumar V.G. v. Deputy Superintendent of Police & Anr., CRL.M.C NO. 9631/2023

Click Here To Read/Download Order