REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2114 OF 2017
(Arising out of Special Leave Petition (Crl.)No.8279 of 2016)
NITYA DHARMANANDA @ K. LENIN & ANR. …APPELLANT(S)
VERSUS
SRI GOPAL SHEELUM REDDY ALSO KNOWN
AS NITHYA BHAKTANANDA AND ANR. …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 2115 OF 2017
(Arising out of Special Leave Petition (Crl.)No.1176 of 2017)
STATE OF KARNATAKA …APPELLANT(S)
VERSUS
GOPAL SHEELUM REDDY ALSO KNOWN
AS NITHYA BHAKTANANDA …RESPONDENT(S)
O R D E R
1. Delay condoned. Leave granted.
2. We have heard learned counsel for the State, the
complainant, the accused and the learned amicus, Mr. Siddharth
Luthra, Senior Advocate.
1
3. The respondent, Gopal Sheelum Reddy alias Nithya
Bhaktananda, was charge sheeted for offences, inter alia, under
Section 376 of the Indian Penal Code. The respondent
approached the High Court with the prayer that the entire
material available with the investigator, which was not made part
of the chargesheet, ought to be summoned under Section 91 of
the Cr.P.C. The High Court, reversing the contrary view of the trial
court, allowed the said application.
4. Contention raised on behalf of the appellants is that the view
of the High Court is contrary to law laid down by this Court in
State of Orissa versus Debendra Nath Padhi (2005) 1 SCC
568 and reiterated in the subsequent decisions. The defence
could not be considered at the stage of framing of charge so as to
avoid a mini trial.
5. Learned counsel for the defence, on the other hand,
submitted that if the investigator is not fair and the material of
sterling quality, though seized during investigation and available
with him, is deliberately left out from the chargesheet, there is no
bar for the court to summon the said material.
6. It is settled law that at the stage of framing of charge, the
accused cannot ordinarily invoke Section 91. However, the court
being under the obligation to impart justice and to uphold the law,
is not debarred from exercising its power, if the interest of justice
in a given case so require, even if the accused may have no right
2
to invoke Section 91. To exercise this power, the court is to be
satisfied that the material available with the investigator, not
made part of the chargesheet, has crucial bearing on the issue of
framing of charge.
7. In Debendra Nath Padhi, supra, it was observed:
“25. Any document or other thing envisaged under
the aforesaid provision can be ordered to be
produced on finding that the same is “necessary or
desirable for the purpose of investigation, inquiry,
trial or other proceedings under the Code”. The first
and foremost requirement of the section is about the
document being necessary or desirable. The
necessity or desirability would have to be seen with
reference to the stage when a prayer is made for the
production. If any document is necessary or desirable
for the defence of the accused, the question of
invoking Section 91 at the initial stage of framing of a
charge would not arise since defence of the accused
is not relevant at that stage. When the section refers
to investigation, inquiry, trial or other proceedings, it
is to be borne in mind that under the section a police
officer may move the court for summoning and
production of a document as may be necessary at
any of the stages mentioned in the section. Insofar as
the accused is concerned, his entitlement to seek
order under Section 91 would ordinarily not come till
the stage of defence. When the section talks of the
document being necessary and desirable, it is implicit
that necessity and desirability is to be examined
considering the stage when such a prayer for
summoning and production is made and the party
who makes it, whether police or accused. If under
Section 227, what is necessary and relevant is only
the record produced in terms of Section 173 of the
Code, the accused cannot at that stage invoke
Section 91 to seek production of any document to
show his innocence. Under Section 91 summons for
3
production of document can be issued by court and
under a written order an officer in charge of a police
station can also direct production thereof. Section 91
does not confer any right on the accused to produce
document in his possession to prove his defence.
Section 91 presupposes that when the document is
not produced process may be initiated to compel
production thereof.”
8. In Hardeep Singh Etc. versus State of Punjab and
ors. Etc. (2014) 3 SCC 92 a Bench of five-Judges observed:
“19. The court is the sole repository of justice and a duty
is cast upon it to uphold the rule of law and, therefore, it
will be inappropriate to deny the existence of such
powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at
times, get away by manipulating the investigating
and/or the prosecuting agency. The desire to avoid trial
is so strong that an accused makes efforts at times to
get himself absolved even at the stage of investigation
or inquiry even though he may be connected with the
commission of the offence.”
9. Thus, it is clear that while ordinarily the Court has to proceed
on the basis of material produced with the charge sheet for
dealing with the issue of charge but if the court is satisfied that
there is material of sterling quality which has been withheld by
the investigator/prosecutor, the court is not debarred from
summoning or relying upon the same even if such document is
not a part of the charge sheet. It does not mean that the defence
has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of
the court, at the stage of charge.
4
10. Accordingly, the view to the contrary in the impugned
judgment cannot be sustained and is set aside.
11. The trial court may now proceed to deal with the issue of
framing of charge in the light of the observations made
hereinabove and also to proceed with the matter expeditiously in
accordance with law.
The parties are directed to appear before the trial court for
further proceedings on Monday, the 12th February, 2018.
We record our deep appreciation for the valuable assistance
rendered by Mr. Siddharth Luthra, learned senior counsel, as
amicus.
The appeals are accordingly disposed of.
………………………………J.
(ADARSH KUMAR GOEL)
………………………………J.
(UDAY UMESH LALIT)
NEW DELHI;
DECEMBER 7, 2017.
5
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2114 OF 2017
(Arising out of Special Leave Petition (Crl.)No.8279 of 2016)
NITYA DHARMANANDA @ K. LENIN & ANR. …APPELLANT(S)
VERSUS
SRI GOPAL SHEELUM REDDY ALSO KNOWN
AS NITHYA BHAKTANANDA AND ANR. …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 2115 OF 2017
(Arising out of Special Leave Petition (Crl.)No.1176 of 2017)
STATE OF KARNATAKA …APPELLANT(S)
VERSUS
GOPAL SHEELUM REDDY ALSO KNOWN
AS NITHYA BHAKTANANDA …RESPONDENT(S)
O R D E R
1. Delay condoned. Leave granted.
2. We have heard learned counsel for the State, the
complainant, the accused and the learned amicus, Mr. Siddharth
Luthra, Senior Advocate.
1
3. The respondent, Gopal Sheelum Reddy alias Nithya
Bhaktananda, was charge sheeted for offences, inter alia, under
Section 376 of the Indian Penal Code. The respondent
approached the High Court with the prayer that the entire
material available with the investigator, which was not made part
of the chargesheet, ought to be summoned under Section 91 of
the Cr.P.C. The High Court, reversing the contrary view of the trial
court, allowed the said application.
4. Contention raised on behalf of the appellants is that the view
of the High Court is contrary to law laid down by this Court in
State of Orissa versus Debendra Nath Padhi (2005) 1 SCC
568 and reiterated in the subsequent decisions. The defence
could not be considered at the stage of framing of charge so as to
avoid a mini trial.
5. Learned counsel for the defence, on the other hand,
submitted that if the investigator is not fair and the material of
sterling quality, though seized during investigation and available
with him, is deliberately left out from the chargesheet, there is no
bar for the court to summon the said material.
6. It is settled law that at the stage of framing of charge, the
accused cannot ordinarily invoke Section 91. However, the court
being under the obligation to impart justice and to uphold the law,
is not debarred from exercising its power, if the interest of justice
in a given case so require, even if the accused may have no right
2
to invoke Section 91. To exercise this power, the court is to be
satisfied that the material available with the investigator, not
made part of the chargesheet, has crucial bearing on the issue of
framing of charge.
7. In Debendra Nath Padhi, supra, it was observed:
“25. Any document or other thing envisaged under
the aforesaid provision can be ordered to be
produced on finding that the same is “necessary or
desirable for the purpose of investigation, inquiry,
trial or other proceedings under the Code”. The first
and foremost requirement of the section is about the
document being necessary or desirable. The
necessity or desirability would have to be seen with
reference to the stage when a prayer is made for the
production. If any document is necessary or desirable
for the defence of the accused, the question of
invoking Section 91 at the initial stage of framing of a
charge would not arise since defence of the accused
is not relevant at that stage. When the section refers
to investigation, inquiry, trial or other proceedings, it
is to be borne in mind that under the section a police
officer may move the court for summoning and
production of a document as may be necessary at
any of the stages mentioned in the section. Insofar as
the accused is concerned, his entitlement to seek
order under Section 91 would ordinarily not come till
the stage of defence. When the section talks of the
document being necessary and desirable, it is implicit
that necessity and desirability is to be examined
considering the stage when such a prayer for
summoning and production is made and the party
who makes it, whether police or accused. If under
Section 227, what is necessary and relevant is only
the record produced in terms of Section 173 of the
Code, the accused cannot at that stage invoke
Section 91 to seek production of any document to
show his innocence. Under Section 91 summons for
3
production of document can be issued by court and
under a written order an officer in charge of a police
station can also direct production thereof. Section 91
does not confer any right on the accused to produce
document in his possession to prove his defence.
Section 91 presupposes that when the document is
not produced process may be initiated to compel
production thereof.”
8. In Hardeep Singh Etc. versus State of Punjab and
ors. Etc. (2014) 3 SCC 92 a Bench of five-Judges observed:
“19. The court is the sole repository of justice and a duty
is cast upon it to uphold the rule of law and, therefore, it
will be inappropriate to deny the existence of such
powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at
times, get away by manipulating the investigating
and/or the prosecuting agency. The desire to avoid trial
is so strong that an accused makes efforts at times to
get himself absolved even at the stage of investigation
or inquiry even though he may be connected with the
commission of the offence.”
9. Thus, it is clear that while ordinarily the Court has to proceed
on the basis of material produced with the charge sheet for
dealing with the issue of charge but if the court is satisfied that
there is material of sterling quality which has been withheld by
the investigator/prosecutor, the court is not debarred from
summoning or relying upon the same even if such document is
not a part of the charge sheet. It does not mean that the defence
has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of
the court, at the stage of charge.
4
10. Accordingly, the view to the contrary in the impugned
judgment cannot be sustained and is set aside.
11. The trial court may now proceed to deal with the issue of
framing of charge in the light of the observations made
hereinabove and also to proceed with the matter expeditiously in
accordance with law.
The parties are directed to appear before the trial court for
further proceedings on Monday, the 12th February, 2018.
We record our deep appreciation for the valuable assistance
rendered by Mr. Siddharth Luthra, learned senior counsel, as
amicus.
The appeals are accordingly disposed of.
………………………………J.
(ADARSH KUMAR GOEL)
………………………………J.
(UDAY UMESH LALIT)
NEW DELHI;
DECEMBER 7, 2017.
5
