InCRL.M.C. 4719/2023 -DEL HC- Delhi High Court holds accused cannot seek production of withheld material under Section 91 CrPC during pending investigation
Justice Swarana Kanta Sharma [26-09-2023]

Read Order:Vikram Kathuria & Anr V. State & Anr

Chahat Varma

New Delhi, September 27, 2023: In a recent decision, the Delhi High Court has set aside an order directing the preservation of records in a criminal case, holding that the revision petition against the interlocutory order was not maintainable and that the application under Section 91 of the Criminal Procedure Code (Cr.P.C.) should not have been entertained at a premature stage.

Brief issue involved in the present case was that the petitioners had approached the court with the claim that the FIR filed against them was entirely false and contained fabricated accounts from the complainant and other witnesses who, in collaboration with the local police, deliberately concealed the true facts to deceive the courts. Therefore, the petitioners resorted to filing an application under Section 91 of the Cr.P.C. before the Additional Chief Metropolitan Magistrate (ACMM) to ensure that the accurate facts were presented before the trial court for the establishment of the truth. On 10.04.2023, the ACMM allowed the petitioners' application, directing the preservation of specific records. Challenging this order, respondent no. 2 approached the court of the Additional Sessions Judge (ASJ) through a revision petition and in the impugned order dated 09.06.2023, the ASJ overturned the ACMM's order.

The genesis of the matter was that respondent no. 2 and her associates, including one ACP 'SD', attempted to extort money from the petitioners.

The single-judge bench of Justice Swarana Kanta Sharma observed that the directions issued by the ACMM in his order dated 10.04.2023 did not determine any significant rights or liabilities of the parties involved.

The bench also cited the Supreme Court's decision in the case of Sethuraman v. Rajamanickam [LQ/SC/2009/597], where it was held that the orders dismissing applications under Section 311 and Section 91 of the Cr.P.C. were considered interlocutory in nature as they did not make a final determination.

Consequently, the bench concluded that the revision petition filed before the ASJ was not maintainable as it pertained to an interlocutory order. Therefore, the order dated 09.06.2023 passed by the ASJ was set aside on this ground.

Further, the bench observed that in a criminal case, the victim possesses participatory rights from the stage of investigation to the conclusion of proceedings in an appeal or revision. In light of this, the bench concluded that the ACMM had erred by not issuing notice and granting an opportunity for a hearing to the complainant before issuing directions regarding the investigation.

The bench also noted that if the Court is convinced that there is material of ‘sterling quality’ that has been withheld by the investigator or prosecutor, it is not precluded from summoning or relying upon that material, even if it is not included in the chargesheet, at the stage of framing charges.

However, the bench observed that the investigation in the present case was still ongoing, and it had not been completed by the investigating agency. Additionally, the Court had not taken cognizance of the offense, and the accused persons had not been summoned. In such a situation, the bench held that the application filed by the accused/petitioners under Section 91 of the Cr.P.C. should not have been entertained by the ACMM.

The bench also remarked that one of the directions issued by the ACMM was that the Joint Commissioner of Police should personally oversee the investigation regarding the role of an ACP in the case. The accused had alleged that the ACP had been involved in threatening and extorting money from them in relation to the case. The bench found that issuing such a direction in an application filed by the accused under Section 91 of the Cr.P.C., before the Court had even taken cognizance of the matter lacked legal foundation.

Therefore, the court concluded that the ACMM had made a legal error by granting the petitioners' application under Section 91 of the Cr.P.C. at a stage where the investigation in the case had not been completed, and the court had not taken cognizance of the matter. Consequently, the court found no grounds to restore the order dated 10.04.2023 passed by the ACMM, and it was accordingly set aside.