2025 (12) TMI 769 - HC - IBC

Petition to access CBI, bank documents u/s91 CrPC during investigation dismissed as premature, discretionary power

HC dismissed the petition challenging rejection of an application under S.91 Cr.P.C. seeking production of documents from CBI and respondent banks at the ... Dismissal of Application under S.91 Cr.P.C. for production of Documents by Central Bureau of Investigation (CBI) and the Respondent Banks - seeking directions to the respondents, to produce certain documents which the Petitioner claimed were necessary for him to participate in the investigations effectively - HELD THAT:- From bare perusal of Section 91 Cr.P.C., it emerges that this power of issuing summons to produce documents or other things can be exercised either by the Court or any Officer in-charge of the Police Station, which is considered necessary or desirable for the purpose of any investigation, enquiry, trial or other proceedings. Section 91 Cr.P.C. is therefore, not limited to the summoning of documents or things, only after the filing of Chargesheet, but can be exercised even at the stage of enquiry or investigations. What are the circumstance in which the Court of any Officer in-charge seek production of documents? - HELD THAT:- The purpose of interrogation is to elicit the truth based on the personal knowledge of the accused. If the Petitioner does not remember details due to the passage of time or lack of records, he is entitled to state the same to the Investigating Officer. The law does not compel an accused to answer questions that are factually impossible for him to answer; it merely requires him to cooperate with the investigation - It is therefore, evident that the documents are already available with the I.O. and he has been interrogating the Petitioner by confronting him with them. This Application is an oblique way to procure the documents, which he can do independently. He is seeking documents on the pretext that he would be able to assist in investigation. However, as per his own submission, he is being confronted with the documents, thereby implying that he can very well look into the documents and answer appropriately. This cannot be a ground for him to seek documents with which he is being confronted by the I.O. during investigation. The fairness of the investigations is not being questioned by the Petitioner. Section 91 Cr.P.C. does not include a situation, where the query is being put by the I.O. to the accused, who is unable to answer the queries in an appropriate way. The Final Report is yet to be filed. The Petitioner is seeking documents essentially for his defence, which he may seek after the filing of the Charge Sheet. The Application is premature. The scheme of the Cr.P.C. provides specific checks and balances. The power under Section 91 Cr.P.C. is discretionary and must be exercised only when the Court considers the production “necessary or desirable.” The Ld. Special Judge has exercised this discretion judiciously, noting that the investigation is at an initial stage and the accused cannot seek the documents with which he is being confronted, merely on the ground that he is not able to answer queries appropriately - this Court finds no illegality, perversity, or jurisdictional error in the Impugned Order dated 20.12.2023. Petition dismissed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether Section 91 of the Code of Criminal Procedure, 1973 can be invoked by an accused during the pendency of investigation to compel production of documents from the investigating agency and third-party banks for the purpose of facilitating his answers in interrogation. 1.2 What is the scope of 'necessity or desirability' under Section 91 Cr.P.C., and whether it must be assessed with reference to the requirements of the investigation or the convenience/defence of the accused at the pre-charge-sheet stage. 1.3 Whether denial of documents at the stage of investigation, in the circumstances of insolvency and loss of custody of company records, violates the right to fair investigation under Article 21 of the Constitution of India. 1.4 Whether an application under Section 91 Cr.P.C. by an accused to obtain documents for his defence is premature before filing of the police report under Section 173 Cr.P.C., having regard to the statutory scheme including Section 207 Cr.P.C. 1.5 Extent to which the Court can supervise or interfere with the course of investigation, including compelling production of documents, in the absence of any allegation of bias or unfairness against the investigating agency. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Invocation of Section 91 Cr.P.C. by an accused during investigation to compel production of documents Legal framework 2.1 The Court reproduced Section 91(1) Cr.P.C. and noted that the power to issue summons to produce documents or things may be exercised either by a Court or by an officer in charge of a police station whenever production is considered 'necessary or desirable' for the purposes of any investigation, inquiry, trial or other proceeding under the Code. 2.2 From the statutory text, the Court held that the power is not confined to the post-charge-sheet stage and can be invoked at the stage of inquiry or investigation as well. Interpretation and reasoning 2.3 The Court identified three controlling conditions emerging from Section 91 Cr.P.C.: (i) it can be invoked at the stage of inquiry as well as trial; (ii) the document must be 'necessary or desirable' for the purpose of the investigation/inquiry/trial; and (iii) such necessity or desirability must be considered with reference to the stage of the proceedings when the request is made. 2.4 Applying these parameters, the Court examined whether the documents sought were required at the stage of ongoing investigation by the police before filing of the charge sheet. The Petitioner sought documents of his own company, placed earlier in insolvency proceedings, to refresh his memory for answering questions relating to old transactions. 2.5 The Court noted that, on the Petitioner's own showing, (a) the documents belonged to his own company and were not of a nature that he could not independently procure, and (b) the investigating officer already had those documents and was confronting the Petitioner with them during interrogation. 2.6 The Court held that the Petitioner's sole ground for seeking production and supply of copies was his claimed inability to answer queries appropriately during interrogation. The purpose of interrogation, however, is to elicit truth based on the personal knowledge of the accused. If the accused does not remember details due to passage of time or lack of records, he can state so to the investigating officer. The law does not compel an accused to answer factually impossible questions; it only requires him to cooperate in investigation. 2.7 The Court found that the application under Section 91 Cr.P.C. was, in substance, an oblique attempt to procure copies of documents already with the investigating agency, which the Petitioner could also attempt to obtain independently. Since he was already being confronted with those documents during investigation and given an opportunity to peruse them, this could not justify compelling the investigating agency or banks to supply him copies under Section 91 Cr.P.C. at this stage. 2.8 The Court accepted the contention that acceding to such a request would effectively convert investigation into a 'mini-trial' and would entail confronting the accused with every document collected by the agency, a course deprecated by the Supreme Court as being inimical to the purpose of investigation and potentially facilitating tampering with evidence. Conclusions 2.9 Section 91 Cr.P.C., though applicable at the stage of investigation, does not entitle an accused to compel production and supply of documents from the investigating agency or third parties merely to aid him in answering questions during interrogation. 2.10 Where the investigating agency already possesses the documents and is confronting the accused with them, the accused cannot invoke Section 91 Cr.P.C. to secure copies on that ground; such use of Section 91 is impermissible at the investigation stage. Issue 2: Scope of 'necessity or desirability' and whether it is to be judged from the standpoint of investigation or the accused's defence Interpretation and reasoning 2.11 The Court emphasized that the 'necessity or desirability' test under Section 91 Cr.P.C. must be applied with reference to the purpose of the investigation, inquiry, or trial, and to the stage of proceedings. At the investigation stage, the relevant consideration is whether the document is necessary or desirable for the progress and efficacy of the investigation, not for the convenience of the accused in formulating his answers. 2.12 It was held that Section 91 Cr.P.C. does not contemplate a scenario where an accused, being confronted with queries by the investigating officer, seeks production of documents solely because he is unable to answer the queries in an 'appropriate' manner. 2.13 The Court held that the Petitioner was essentially seeking documents for his defence, not for the investigative needs of the police, and such a defence-oriented request is premature before filing of the charge sheet. 2.14 The Court also clarified that the learned Special Judge had correctly observed that while fairness of investigation can be supervised by the Court, such supervision is limited and generally triggered only where there are allegations of bias or unfairness on the part of the investigating agency. In the absence of such allegations, the 'necessity or desirability' of documents cannot be expanded to accommodate the accused's convenience at the investigation stage. Conclusions 2.15 At the pre-charge-sheet stage, 'necessity or desirability' under Section 91 Cr.P.C. must be assessed from the perspective of investigative requirements, not from the standpoint of enabling the accused to prepare his defence or refine his answers in interrogation. 2.16 A request for documents essentially for the accused's defence is outside the ambit of Section 91 Cr.P.C. during ongoing investigation and must await the statutory stage when the accused becomes entitled to copies under the Code. Issue 3: Alleged violation of right to fair investigation under Article 21 due to non-supply of documents during investigation Interpretation and reasoning 2.17 The Petitioner claimed that because the company entered the corporate insolvency resolution process and control of records passed to the resolution professional and then to the new management, he is not in possession of relevant records and is therefore handicapped in cooperating with investigation, undermining his right to fair investigation under Article 21. 2.18 The Court noted that the fairness of the investigation itself was not being attacked; there was no allegation of bias or mala fides against the investigating agency. The complaint was limited to the Petitioner's ability to respond to queries without documents. 2.19 The Court held that the law only requires the accused to join and cooperate in investigation and does not compel him to provide answers which are factually impossible in the absence of records. The Petitioner is free to inform the investigating officer of his inability to recall or answer without documents. This does not amount to denial of a fair investigation. 2.20 In addition, the Court directed that, where the Petitioner is confronted with voluminous or old documents, the investigating officer must afford sufficient time to peruse them so that he can give complete and informed answers, thereby ensuring effective and meaningful investigation and procedural fairness. Conclusions 2.21 Non-supply of copies of documents to the accused at the investigation stage, in circumstances where the investigating officer already has the documents and confronts the accused with them, does not, by itself, violate Article 21 or the right to a fair investigation. 2.22 Fairness is sufficiently safeguarded if the accused is allowed to inspect the documents during interrogation and is afforded adequate time to go through them, with liberty to state his inability to answer specific questions due to absence of records or lack of memory. Issue 4: Prematurity of the Section 91 Cr.P.C. application and interplay with Section 207 Cr.P.C. Legal framework 2.23 The Court noted that, under Section 207 Cr.P.C., once investigation is complete and the police report (charge sheet) is filed, the accused becomes entitled to copies of the police report and all documents relied upon by the prosecution. 2.24 The Court examined the precedents cited by the Petitioner (including decisions on discharge or at the time of framing of charge) and found that they all related to stages after filing of the charge sheet where the accused sought documents to seek discharge or contest framing of charges. Interpretation and reasoning 2.25 The Court held that those precedents are distinguishable, as they govern post-charge-sheet scenarios and are not applicable to the factual situation where investigation is still ongoing and the final report is yet to be filed. 2.26 The Court underlined that the statutory scheme of Cr.P.C. prescribes checks and balances, including the stage at which the accused acquires an enforceable right to documents under Section 207 Cr.P.C. Allowing Section 91 Cr.P.C. to be used by an accused at the investigation stage to obtain documents for defence would disrupt this statutory sequence. 2.27 The Court agreed with the Special Judge that the application was premature, since the Petitioner was, in effect, seeking documents for his defence before the completion of investigation and filing of the charge sheet. Conclusions 2.28 An application by an accused under Section 91 Cr.P.C. to obtain documents for his defence before filing of the police report is premature in view of the statutory scheme, especially Section 207 Cr.P.C. 2.29 The accused must ordinarily await the filing of the charge sheet, when statutory entitlement to relevant documents relied upon by the prosecution arises, and cannot pre-empt this scheme by invoking Section 91 Cr.P.C. during ongoing investigation. Issue 5: Extent of judicial supervision over investigation and relevance of bias or unfairness Interpretation and reasoning 2.30 The Court reiterated that investigation is the exclusive prerogative of the police/investigating agency. The accused cannot dictate or guide the course of investigation, nor can he demand that specific documents be collected or supplied to him during investigation for the purpose of shaping his answers. 2.31 The Court endorsed the view of the Special Judge that while the Court can supervise investigation to ensure fairness, such supervision is limited and is generally invoked where there is an allegation of bias or conduct impinging upon fairness of investigation. 2.32 In the present case, there was no substantial allegation that the investigating agency was biased or conducting an unfair or mala fide investigation. The grievance was confined to non-supply of documents needed, according to the Petitioner, to answer queries. In such a situation, judicial interference to compel production of documents under Section 91 Cr.P.C. at the investigation stage was held to be unwarranted. Conclusions 2.33 Courts may exercise limited supervisory jurisdiction over investigation to ensure fairness, particularly where allegations of bias or unfairness are made; however, absent such allegations, they will not direct the investigating agency to part with documents or restructure the investigative process at the behest of the accused. 2.34 The Special Judge's refusal to interfere with the course of investigation or to compel production of documents under Section 91 Cr.P.C. was a proper exercise of discretion, disclosing no illegality, perversity or jurisdictional error. Overall Disposition 2.35 The power under Section 91 Cr.P.C. is discretionary and must be exercised only when the Court considers production of documents 'necessary or desirable' from the standpoint of investigation or proceedings at the relevant stage. In the absence of such necessity or desirability, and where the request is essentially to aid the accused's defence during investigation, the application is not maintainable. 2.36 The petition challenging the refusal to summon documents under Section 91 Cr.P.C. was dismissed, and the impugned order was upheld, with the clarification that the investigating officer must afford the accused reasonable opportunity and time to peruse documents when he is confronted with voluminous or old records during interrogation.