NIMISH AGARWAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Can a committing Magistrate during committal enquiry under Section 209 of the CrPC has power and jurisdiction to entertain an application under Section 91 of the CrPC and direct for production of documents in exercise of jurisdiction under that provision, is the short question involved in this petition, which arises for consideration in the following factual backdrop: -

(2.) The jurisdictional police charge-sheeted the petitioners herein in Crime No.415/2016 for offences punishable under Sections 498A, 377, 376 & 323 read with Section 34 of the IPC and Sections 3 & 4 of the Dowry Prohibition Act on 16-3-2017 before the Chief Judicial Magistrate, Durg and on that day, the learned Magistrate took cognizance of the aforesaid offences under Section 190(1) of the CrPC. Since the offence under Section 376 of the IPC was exclusively triable by the Court of Session, the criminal proceeding was pending before the learned Chief Judicial Magistrate awaiting committal of said case to the Court of Session. During the pendency of the said proceeding on 18-4-2017, the petitioners herein moved an application under Section 91 of the CrPC for production of number of documents stating inter alia that the production of documents is necessary and desirable as those documents incorporated in the application were not produced deliberately by the prosecution.

(3.) The learned Judicial Magistrate by the impugned order held that out of the offences charged to the petitioners, offence under Section 376 of the IPC is exclusively triable by the Court of Session and in consequence thereof, fixed the case for hearing on the question of committal of the case to the Court of Session and simultaneously, decided the application under Section 91 of the CrPC holding that the documents sought for relate to defence of the accused persons and therefore necessity and desirably of those documents cannot be entertained at the present stage proceeding i.e. the committal proceeding, as also for the reason that one of the offences charged is triable by the Court of Session and the submissions raised with regard to defence seeking production of documents could be considered at the time of commencement of defence or during proceeding of trial to be considered upon the court trying such offences relying upon the judgment of the Supreme Court in the matter of State of Orissa v. Debendra Nath Padhi, 2005 1 SCC 568 and accordingly rejected that application holding it to be not maintainable. Feeling aggrieved and questioning that order rejecting the application under Section 91 of the CrPC, the instant petition under Section 482 of the CrPC has been filed.