IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3401 OF 2015 BETWEEN:
SMT DEVAMMA W/O LATE DYAVEGOWDA AGED ABOUT 93 YEARS R/AT MARALEBEKUPPE VILLAGE, UYYAMBALLI HOBLI, KANAKAPURA TALUK-562117 RAMANAGAR DISTRICT.
... PETITIONER (BY SRI: HANUMANTHA REDDY Y. S., ADVOCATE) AND THE STATE OF KARNATAKA BY INSPECTOR OF POLICE, SATHNUR POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.
... RESPONDENT (BY SRI: VIJAYA KUMAR MAJAGE, ADDL. SPP) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 26.03.2015 PASSED ON THE APPLICATION FILED BY THE PROSECUTION UNDER SECTION 91 OF CR.P.C. IN C.C.NO.879/1992 PENDING ON THE FILE OF PRL.
C.J. AND J.M.F.C., KANAKAPURA VIDE ANNEXURE-E.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is the accused in C.C.No.879/1992 on the file of Prl. Civil Judge and JMFC, Kanakapura. Charges were framed against the petitioner/accused under Sections 465, 471, 420 and 379 of Indian Penal Code.
2. The case of the prosecution is that the grant order in respect of 25 acres of land comprised in Sy.No.421 of Maralebekuppe village was fabricated by the petitioner/accused and on the strength of the said document, the properties were alienated to one T.R.N. Swamy. After conclusion of the evidence of the prosecution, at the stage of examination of the petitioner/accused No.1 under Section 313 Cr.P.C., the prosecution moved an application under Section 91 of Cr.P.C. seeking a direction to the petitioner herein to produce the original grant order and the endorsement passed in the name of accused viz., Smt. Devamma by the Special Deputy Commissioner under Inams Abolition Act. The petitioner filed objection to the said application contending that the prosecution has filed the said application just to drag on the case. In para 8 of the objection statement, it was stated thus “The accused submits that the accused has all recovery sold the property in question to one T.R.N. Swamy hence he has given all the documents to T.R.N. Swamy. Hence she has no documents with her, hence the application by the prosecution is not at all maintainable.”
3. From the stand taken up by the petitioner/accused, it is clear that the said grant order was in possession of the petitioner/accused. But as on the date of the application under Section 91 of Cr.P.C, she has sold the above said properties to T.R.N. Swamy and has given all the documents to T.R.N. Swamy. Section 91 of Cr.P.C. empowers the Court or any officer incharge of a police station to issue summons to such police officer or 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.”
4. In the instant case, undeniably, the petitioner/accused has stated that she is not in possession of the documents sought to be summoned by the prosecution and has clearly stated that the documents which were in her possession have been handed over to T.R.N. Swamy. In the said circumstances, the trial court was not justified in directing the petitioner herein to produce the said documents. When the petitioner/accused is not in possession of the said documents, she cannot be compelled or directed to produce the said documents. Even otherwise, the petitioner being an accused who is facing trial for the above charges cannot be compelled to produce the documents which are likely to incriminate her. Since the very case of the prosecution is that the original grant order is forged, it was not proper on the part of the trial court to direct the petitioner to produce the said documents. In any case, the petitioner being not in possession of the said document as on the date of the impugned order, in my view, the direction issued by the learned Magistrate cannot be sustained. However, insofar as other direction issued by the learned Magistrate to accused to furnish the sale deed made in the name of the T.R.N. Swamy and the postal address of T.R.N. Swamy, in my view, requires to be sustained. As already stated above, the petitioner/accused has taken up a specific stand that whatever documents she was in possession including the document sought for by the prosecution have been handed over to T.R.N. Swamy.
In view of the aforesaid, petition is allowed-in-part. The impugned direction issued to the petitioner to produce the original grant order as sought for by the prosecution under Section 91 Cr.P.C. is hereby set-aside/quashed. The direction to furnish the sale deed executed in the name of the T.R.N. Swamy and the postal address of T.R.N. Swamy stands sustained.
*mn/-
Sd/- JUDGE