TaxTMI 
TaxTMI 
2016 (7) TMI 1698
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....l Vora, Oscar Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram Pitroda and Young Indian shall be referred to as "the petitioners") by the respondent No. 1--Dr. Subramanian Swamy (hereinafter referred to as "complainant"). It was alleged in the complaint that the accused persons committed fraud, cheating and other offences against All India Congress Committee (Congress Party) and The Associated Journals Ltd. (AJL), who are the publishers of National Herald newspaper, which was founded under the Chairmanship of Sh. Jawarharlal Nehru. The AJL was closed and printing of newspapers was terminated with unpaid debt of Rs. 90 crores. On 23.11.2010, Young Indian Pvt. Ltd. was incorporated with Rs. 5 lakh as paid up capital in which Ms. Sonia Gandhi and Sh. Rahul Gandhi were having 38% shares each. A board resolution of Young Indian Pvt. Ltd. was passed to own the debt of AJL after obtaining interest free loan from the Congress Party. In a board meeting, AJL agreed to transfer its entire share equity to Young Indian Pvt. Ltd. for Rs. 50 lakhs. Accused persons were claimed to be the office bearers of the Congress Party. It was further alleged that AJL was having assets worth Rs. 20....
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....rgued that the order passed by the Trial Court is without due application of mind and the application has been allowed without giving any notice or opportunity of hearing to the petitioner despite being available in the proceedings. In support of the submissions made, judgments in the cases of Sethuraman v. Rajamanickam (2009) 5 SCC 153; Alagesan and others v. State (2008) Cri.L.J. 3300 (Madras); Pawan Duggal v. State (2001) 59 DRJ 645; Om Parkash Sharma v. CBI (2000) 5 SCC 679; State of Orissa v. Debendra Nath Padi (2005) 1 SCC 568; Ravindra Kuman Chandolia v. CBI and Chandgiram v. State have been relied upon. 7. Dr. A.M. Singhvi, learned Senior Counsel for the petitioner Oscar Fernandes argued that the order passed by the Court below is violative of natural justice as notice of the application was not given to the petitioner though the petitioner was very much participating in the proceedings and was available for that purpose. Dr. Singhvi adopted the arguments advanced by Mr. Kapil Sibal, learned Senior Counsel for the petitioner Sam Pitroda and further argued that the order passed by the Court below is violative of principle of natural justice as it demands the hearing of th....
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..... Janardhan and others AIR 1960 Bom 513 and Niadar Singh v. Maman & others 2001 (57) DRJ 702. 11. The complainant appearing in person argued that Section 91 of the Cr.P.C. does not envisage the issuance of notice to the opposite side and the power under Section 91 Cr.P.C. is vested with the Court which the Court can exercise at any time during the pendency of the trial. He further argued that permitting the complainant to summon the documents itself demonstrates the application of mind and implied necessity and desirability of the documents. He further argued that the documents as per the impugned orders have already been summoned and the photocopies thereof have been kept in a sealed cover by the Trial Court. He referred to judgments in the case of The Assistant Collector of Customs, Bombay and another v. L.R. Melwani and another AIR 1970 SC 962 and Express Newspapers Pvt. Ltd. and others v. Union of India and others AIR 1986 SC 872. 12. On hearing the rival contentions of learned Senior Counsel for the petitioners as well as the complainant, the question before this Court to be decided is the scope and applicability of Section 91 of the Cr.P.C. and relative consideration at....
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....in the present case. 14. The other aspect is the applicability of Section 91 of the Cr.P.C. which could be invoked during the pendency of the investigation, inquiry, trial or any other proceedings under the Code. The present case we are dealing with the trial of the petitioners which is at the stage of pre-charge evidence. Though, it is mentioned that power under Section 91 of the Cr.P.C. could be invoked at any stage of the investigation, inquiry or trial but it is still to be examined by the Court, the purpose and the object of exercising the power envisaged under Section 91 of the Cr.P.C. There could be various situations. Firstly, the documents could be summoned at the instance of the prosecution or the complainant to prove its case at the time of examination of the prosecution witnesses and to get it exhibited and proved through the witness who is under the oral examination. Similarly, it could be summoned at the instance of defence to confront the prosecution witnesses during cross-examination and similarly by the defence at the time of leading the defence evidence to put to the defence witnesses for the purpose of exhibition and establishing its plea in the defen....
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....ially consider whether production of the document is relevant for the purpose of trial. Section 91 of the Code of Criminal Procedure does not confer an absolute right on the accused to seek for production of any documents. The party who prays for issuance of summons for production of document has to necessarily demonstrate before the Court that production of such document is material for arriving at a just decision in the case. If the petitioners fail to establish that a particular document is necessary and desirable to be summoned, then the Court shall not summon the document." [Alagesan and others v. State (2008) Cri.LJ. 3300 (Madras)] (iii) "Section 91 Cr.P.C. envisages production of any document or other thing which according to the court or police officer in charge of the police station is necessary or desirable for the purpose of any investigation, enquiry or trial or other proceedings under the Code. The width of the powers under this section is unlimited. The only limitations are as regards to the such documents or things to be necessary or desirable for the purposes mentioned therein. Though the case of Debendra Nath Padhi (supra) pertained to the stage o....
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....and required at the relevant stage of proceedings. For allowing the application for production of documents or other things under Section 91 Cr.P.C., the Court has to deal with the issue of their necessity and relevancy and also whether such documents are required at the stage when they are sought to be summoned by the applicant Summoning of documents cannot be allowed on a mere asking by the applicant or as a matter of routine. Section 294 Cr.P.C. provided for admission/denial of the documents filed in the Court by the prosecution or the accused. It also provided that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed and that the court may, in its discretion, require such signature to be proved." [Chandgiram v. State] 16. The facts and circumstances in the present case show that neither any list of witnesses has been furnished with proposed testimony nor any list of documents has been furnished which were to be exhibited through such witnesses to prove the fact and establish the case of the com....
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....duction of which was rejected by the Trial Court, and which were ordered to be produced by the High Court, at least a hearing should have been given to the appellant/complainant. He could have shown, firstly, that no such documents existed or that there was no basis for the production of those documents, particularly, in view of the fact that he was not even cross-examined in respect of those documents. On this ground, the order of the High Court would have to be set aside." [Sethuraman v. Rajamanickam (2009) 5 SCC 153] (iii) "The order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or the accused is discharged vide Sections 227 & 228 and 239 and 240 Cr.P.C. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant....
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....tutional check on arbitrary action on the part of public authorities. The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decision taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons." [Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. (1985) 3 SCC 545] 18. The rival contention by the complainant is that the notice is not mandatory before passing the order under Section 91 of the Cr.P.C. as it is the discretion of the Trial Court whether a particular document should be summoned or not. He has referred to a judgment in the case of Assistant Collector of Customs, Bombay and another v. L.R. Melwani and another AIR 1970 SC 962 in which it was observed as under: "That apart we do not think that the High Court was justified in interfering with the discretion of the learned Magistrate Whether a particular document should be summoned or not is essentially in the discretion of the trial court. In the instant case the Special Publ....
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....n arises to look into the present case of exercising the power under Section 91 of the Cr.P.C. to summon the document except to render assistance and to facilitate the complainant evidence against the petitioners. In such a scenario, the plea of the complainant appreciating the order passed by the Trial Court without giving any notice or opportunity of hearing to the opposite side that too in a criminal case, would tantamount not only to the violation of principle of natural justice but also to the violation of Article 21 of the Constitution of India. 20. Apart from the discussion made above, it is apparent from the arguments advanced that no list of witnesses or list of documents showing its connectivity with the witnesses or to the facts to be established before the Trial Court cannot be treated as proper application for rendering assistance to the Court to facilitate the evidence by way of seeking documents without demonstrating any necessity or desirability. The applications were moved in a casual manner and the orders passed on the same were also passed in a casual manner without due application of mind. The facts and circumstances mentioned above, non-issuance of notice to....