An Exposition of Section 91 of the Code of Criminal Procedure, 1973: Powers, Limitations, and Judicial Interpretation in India

An Exposition of Section 91 of the Code of Criminal Procedure, 1973: Powers, Limitations, and Judicial Interpretation in India

Introduction

Section 91 of the Code of Criminal Procedure, 1973 (CrPC) stands as a cornerstone in the procedural framework of India's criminal justice system, empowering courts and police officers to compel the production of documents or other things deemed necessary or desirable for the purposes of investigation, inquiry, trial, or other proceedings. This provision is pivotal for the discovery of truth and ensuring that relevant evidence is brought before the adjudicatory or investigative body. However, its broad language has necessitated extensive judicial interpretation to delineate its scope, the conditions for its exercise, and its interplay with fundamental rights, particularly the privilege against self-incrimination enshrined in Article 20(3) of the Constitution of India. This article seeks to provide a comprehensive analysis of Section 91 CrPC, examining its foundational ingredients, the circumstances under which it can be invoked, by whom, and its application vis-à-vis the accused, drawing heavily upon landmark pronouncements of the Supreme Court and various High Courts of India.

The Statutory Framework: Section 91 CrPC

Section 91 of the Code of Criminal Procedure, 1973, titled "Summons to produce document or other thing," provides as follows:

"(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed—

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (18 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."

The provision is situated in Chapter VII of the CrPC, which deals with "Process to Compel the Production of Things." Its primary objective is to ensure that the machinery of investigation and justice is not hampered by the non-availability of crucial documentary or material evidence.

Analysis of Key Legal Principles and Judicial Interpretations

Scope and Ambit of Section 91 CrPC

The Supreme Court in Om Parkash Sharma v. CBI, Delhi (2000 SC 285) observed that the powers conferred under Section 91 are enabling in nature, aimed at arming the court or police officer to enforce the production of any document or other thing "necessary or desirable." While the language indicates wide powers, the Court noted an "inbuilt limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability."

The Karnataka High Court in G T THIPPAIAH v. RANI M ALEX (2022), citing the Supreme Court, reiterated that the necessity and desirability would have to be seen by the court in the context of the purpose—investigation, inquiry, trial, or other proceedings. It cautioned that "law does not permit a roving or fishing inquiry." Similarly, the Himachal Pradesh High Court in Ajeet Kumar Pandey Petitioner v. State Of Himachal Pradesh And Others S (2016), referencing older precedents, stated that when an application is made under Section 94 (of the old Code, analogous to Section 91), "the court is bound to consider whether there is a prima facie case for supposing that the documents are relevant."

The term "document or other thing" is capacious. However, Section 91(3)(b) explicitly excludes items in the custody of postal or telegraph authorities, and Section 91(3)(a) saves the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (relating to evidence as to affairs of State and official communications) and the Bankers' Books Evidence Act, 1891.

An interesting historical perspective was provided by the Madras High Court in Solai Naik And Anr. v. Emperor (1910), which noted that if Section 91 (of the old Code) were to apply to a search list prepared under Section 103 CrPC, "the results would be startling," implying that Section 91 is directed at compelling production from a person in possession, rather than dealing with items already seized and documented through other procedures like search and seizure.

Invocation of Section 91: By Whom and When?

Section 91 CrPC explicitly states that "any Court or any officer in charge of a police station" may invoke this power. The Madhya Pradesh High Court in Special Police Establishment v. Umesh Tiwari And Another (2022) elaborated that the Court can invoke Section 91 either suo moto or at the behest of a stakeholder (victim, accused, police), subject to the satisfaction of necessity and desirability. The Court clarified that "denying any of the stakeholder, the right to invoke Section 91 may defeat the ultimate object behind Section 91 which is to ensure discovery of truth."

The Himachal Pradesh High Court in ISHWAR DASS v. STATE OF HP (2018) emphasized that an application under Section 91 can be made at any stage of the trial and its scope is very wide, not restricted to documents relied upon by the prosecution or to stages contemplated by Sections 233 or 243 CrPC. The sine qua non is the court's satisfaction regarding the necessity and desirability of the document for the trial.

Section 91 CrPC and the Accused: The Privilege Against Self-Incrimination

A significant area of judicial scrutiny has been the applicability of Section 91 CrPC to an accused person, in light of Article 20(3) of the Constitution of India, which protects a person accused of an offence from being "compelled to be a witness against himself."

The foundational judgment on this issue is State Of Gujarat v. Shyamlal Mohanlal Choksi (1965 AIR SC 1251), where the Supreme Court, interpreting Section 94 of the old CrPC (which corresponds to Section 91 of the 1973 Code), held by a majority that this provision does not apply to an accused person. The Court reasoned that compelling an accused to produce documents in their possession that could incriminate them would violate the privilege against self-incrimination. The Court distinguished between producing documents and other forms of evidence like handwriting samples, which were addressed in State of Bombay v. Kathi Kalu Oghad (1961).

This principle was reaffirmed by the Bombay High Court in Mahendra Kumar Kanhyalal Jain v. Mahavir Urban Co-Operative Credit Society Ltd., Jalgaon (2013 SCC ONLINE BOM 693), which, following *Shyamlal Mohanlal*, held that summons cannot be issued to an accused under Section 91 CrPC to produce incriminatory documents.

However, the Supreme Court in V.S Kuttan Pillai v. Ramakrishnan And Another (1980 SCC 1 264) carved out a distinction. In this case, a search warrant under Section 93(1)(c) CrPC (which can be issued, inter alia, when a summons under Section 91 might not be effective) was challenged. The Court upheld the search warrant for documents from the premises of a Sabha (a public institution) of which the petitioner was an office-bearer. It reasoned that the search and seizure did not compel the petitioner to incriminate himself personally, as the documents were institutional records and not in his exclusive personal possession. The Court distinguished the mere production of documents from compelled testimonial evidence involving direct self-incrimination.

The Madhya Pradesh High Court in Special Police Establishment v. Umesh Tiwari And Another (2022) introduced a nuanced view regarding the accused's ability to invoke Section 91. It held that an accused *can* invoke Section 91, but "except during pendency of investigation," as the process of investigation is considered unilateral and out of bounds for the accused in this regard. This implies that at the trial or inquiry stage, an accused may, in appropriate circumstances, seek production of documents through Section 91, provided they are not documents from their own possession that would be self-incriminatory.

Necessity and Desirability: The Guiding Precepts

The exercise of power under Section 91 CrPC is contingent upon the subjective satisfaction of the Court or police officer that the production of the document or thing is "necessary or desirable." This discretion, however, is not arbitrary and must be exercised judicially.

As noted in Om Parkash Sharma v. CBI, Delhi (2000 SC 285), this is an inherent limitation. The Himachal Pradesh High Court in ISHWAR DASS v. STATE OF HP (2018) termed the court's consideration of necessity and desirability as the "sine qua non" for an order under this section. The Andhra Pradesh High Court in S. Srinivasan And Another v. M/S. Deccan Petroleum Ltd. And Others (2000 SCC ONLINE AP 801) criticized a Magistrate's order dismissing a Section 91 application without adverting to the nature of the documents and their relevancy to the accusation.

Section 91 CrPC at Various Stages of Criminal Proceedings

The applicability and limitations of Section 91 CrPC vary depending on the stage of the criminal proceedings:

  • During Investigation:

    An officer in charge of a police station can issue a written order under Section 91. However, as held in Special Police Establishment v. Umesh Tiwari And Another (2022), the accused cannot invoke Section 91 during the pendency of investigation. The Andhra Pradesh High Court in Dhulipalla Veeraiah Choudary v. Kurra Veeraiah And Another (1987) raised questions about a Magistrate's power to issue summons under Section 91 to an accused for production of a vehicle when the matter was referred for police investigation under Section 156(3) CrPC and was pending investigation. The Himachal Pradesh High Court in AERONFLY INTERNATION PVT LTD v. STATE OF HP AND OTHERS (2024), citing other High Court decisions, indicated that freezing a bank account based solely on a Section 91 notice during investigation, especially without prior notice to the account holder (if not an accused), could be problematic and potentially illegal.

  • During Inquiry or Trial (Specifically at Stage of Framing Charges):

    A crucial pronouncement affecting the accused's right to invoke Section 91 at the stage of framing charges is State Of Orissa v. Debendra Nath Padhi (2005 SCC 1 568). The Supreme Court conclusively held that at the stage of framing charges (under Sections 227 and 228 CrPC for sessions cases, and analogous provisions for other trials), the trial court is required to consider only the material produced by the prosecution. The accused does not have a right at this stage to produce any material, including by way of invoking Section 91 CrPC, to prove their innocence. The Court effectively overruled the line of reasoning in earlier cases like Satish Mehra v. Delhi Admn. (1996) 9 SCC 766, which had suggested that an accused could produce reliable material at this stage. The Court in Debendra Nath Padhi clarified that the observations in Om Parkash Sharma v. CBI, Delhi (regarding the accused producing material at the charge stage) were not the main issue in that case and that the settled law confined consideration to prosecution materials.

    This position was followed by the Delhi High Court in Suresh Kumar Pathrella v. Central Bureau Of Investigation (2011), holding that an accused cannot seek production of documents under Section 91 CrPC to set up a defence at the stage of framing charges. The Himachal Pradesh High Court in STATE OF HP v. MANOHAR LAL (2019) also noted the dismissal of an accused's Section 91 application at the charge stage, referencing the principles laid down in Debendra Nath Padhi.

    The Supreme Court's decision in Vinod Kundalia v. State Of West Bengal Another (2001), which predates Debendra Nath Padhi, had allowed an accused's application under Section 91 at the charge stage, modifying the trial court's order to clarify that the Investigating Officer could not be compelled to seize and produce documents, but summons could be issued to the person in possession. This judgment must now be read subject to the authoritative ruling in Debendra Nath Padhi concerning the charge-framing stage.

  • During Trial (Post-Charge Framing):

    Once charges are framed and the trial proceeds, the accused has opportunities to present their defence and cross-examine prosecution witnesses. The invocation of Section 91 by the accused for documents relevant to their defence (other than self-incriminatory documents from their own possession) would be governed by the principles of necessity and desirability, as discussed in cases like ISHWAR DASS v. STATE OF HP (2018) and S. Srinivasan And Another v. M/S. Deccan Petroleum Ltd. (2000 SCC ONLINE AP 801).

    The Madras High Court in H. Mohamed Ibrahim Kaleel & Ors. v. State & Anr. (2008 SCC ONLINE MAD 3) dealt with a revision against a Magistrate's order allowing a petition under Section 91 CrPC in a pending calendar case, indicating its use during ongoing proceedings. The case of Mst. Makhaniya v. Badri Prasad And Others (1973 JLJ 548, Madhya Pradesh High Court) noted that Section 91 of the old Code empowered a court to require a bond for appearance even from a person exempted from personal attendance under Section 205 CrPC, highlighting the breadth of the term "person" whose attendance for production could be compelled.

Conclusion

Section 91 of the Code of Criminal Procedure, 1973, is a powerful and indispensable tool in the administration of criminal justice in India. Its broad ambit allows courts and investigating agencies to access vital evidence crucial for unearthing the truth. Judicial pronouncements over the decades have meticulously shaped its application, balancing the state's interest in effective investigation and prosecution with the fundamental rights of individuals, most notably the privilege against self-incrimination. The Supreme Court's decision in State Of Gujarat v. Shyamlal Mohanlal Choksi remains a bulwark against compelling an accused to produce self-incriminating documents from their own possession. Furthermore, State Of Orissa v. Debendra Nath Padhi has definitively clarified that the accused cannot leverage Section 91 to introduce defence material at the charge-framing stage, thereby streamlining pre-trial procedures.

The guiding principles of "necessity or desirability" remain paramount, ensuring that the power under Section 91 CrPC is exercised judiciously and not as a tool for a roving or fishing inquiry. While the provision facilitates the discovery of truth, its application continues to evolve, requiring courts to engage in a careful balancing act, ensuring fairness to all parties involved in the criminal process and upholding the sanctity of constitutional guarantees.