TaxTMI 
TaxTMI 
2025 (12) TMI 769
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....L KRISHNA, J. 1. The present Petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) to challenge the Impugned Order dated 20.12.2023 of the Ld. Special Judge (PC Act) (CBI) in Misc. DJ ASJ No. 279/2023, dismissing its Application under S.91 Cr.P.C. for production of Documents by Central Bureau of Investigation (CBI) and the Respondent Banks. 2. The Petitioner/Shantanu Prakash had filed an Application under Section 91 Cr.P.C. seeking directions to the respondents, to produce certain documents which the Petitioner claimed were necessary for him to participate in the investigations effectively. 3. The factual matrix is that the Petitioner, Shantanu Prakash, was a Director on the Board of M/s Educomp Infrastructure and School Management Limited (EISML) between 02.09.2006 and 15.02.2018. EISML availed Term Loans and financial assistance from a consortium of Banks, between 2009 and 2013. However, due to adverse business conditions, EISML faced a financial crunch. Consequently, EISML filed an Application under Section 10 Insolvency and Bankruptcy Code, 2016 ("IBC"), which was admitted by the NCLT, Chandigarh vide Order dated 25.04.2018. 4. ....
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....leading to the suspension of its Board of Directors. Consequently, the management and custody of all assets, including business records and books of accounts, vested with the Resolution Professional (RP), under Section 17 of the IBC. The Petitioner contends that he is not in possession of the relevant documents due to factors beyond his control and the statutory scheme of the IBC. Therefore, requiring him to answer queries regarding transactions from 2007-2010 without access to these records, is an impossibility. 12. Section 91 Cr.P.C. is an enabling provision, designed to ensure the production of documents "necessary or desirable" for the investigation. The Petitioner asserts that the Ld. ASJ erred by applying an incorrect test, specifically by holding that the Petitioner failed to show bias or prejudice on the part of the Investigating Officer (IO). It is submitted that the Test of bias is completely alien to Section 91 Cr.P.C. Once the necessity and desirability of the documents was established for the purpose of the Petitioner's defence and explanation, the Application ought to have been allowed regardless of whether the IO was biased or not. 13. It is urged that a fair i....
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....The investigation is currently underway. 19. The Respondent contends that the Application under Section 91 Cr.P.C. is not maintainable at this stage as the relevant documents cannot be handed over to the accused while the investigation is ongoing. 20. The Respondent refutes the claim that the Petitioner is handicapped in answering queries. It is submitted that during the examination, the Petitioner was shown the relevant documents and was given proper opportunity to peruse them, before his statements were recorded. The Petitioner has already answered questions based on his memory and the perusal of these documents. 21. Relying on the judgment of the Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, the Respondent contends that the law does not permit a "roving or fishing inquiry" by the accused. The jurisdiction under Section 91 Cr.P.C., when invoked by an accused, must be viewed in the context of the necessity and desirability for the proceedings, which does not accrue at the stage of investigation. 22. The investigation has revealed that the Petitioner, in connivance with others, utilized term loans for purposes other than intended, such as repay....
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....cument under Section 91 Cr.P.C. is that it can be invoked at the stage of enquiry as well as the trial. The second requirement is that it should be necessary or desirable for that purpose of investigation. The third aspect which emerges is that such necessity or desirability has to be considered with reference to the stage, when the prayer is made for the production. 29. It is therefore, pertinent to consider whether the documents sought by the Petitioner were required at the stage of investigations by the Police, before filing of the Chargesheet. The case of the Petitioner may be considered on the aforesaid parameters. 30. The Petitioner essentially contends that he cannot effectively participate in the investigations because the documents pertaining to the transactions by EISML from the year 2007-2010, for which period the Petitioner is being interrogated by the I.O., are no longer in his possession due to the IBC proceedings. He seeks these documents to refresh his memory and answer the IO's questions regarding old transactions. He argues that this violates his right to a fair investigation under Article 21. 31. It is evident from his own submission that the documents, ....
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.... Investigating Officer. The law does not compel an accused to answer questions that are impossible to answer without records; it merely requires him to join the investigation. 37. 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. 38. Learned ASJ has rightly observed that the investigation needs to be fair and can be supervised by the Court before filing of Chargesheet, though the area of supervision is limited and is to be exercised only when there is some allegation of bias against the Investigating Agency, thereby impinging on the fairness of the investigations. The necessity and desirability of the documents under Section 91 Cr.P.C. must be judged from the perspective of the investigation's progress, not the convenience of the accused in answering questions. 39. Learned counsel for the Petitioner has placed reliance on Om Par....