The petition filed by the petitioner/A1 seeking direction of this court to direct the respondent to produce the request/ report of the Director of Vigilance and Anti-corruption, Chennai-28 to the Sanction Authority in RC.No.198/2010/TNEB/CC-IV, dated 28.07.2010 in C.C.No.9/2011 pending Trial on the file of the Special Judge, Special Court under Prevention of Corruption Act, Chennai.
2. The case of the petitioner is that the above referred C.C.No. 9 of 2011 initiated as against the petitioner on the allegations for the purpose to revoking the Disciplinary Proceedings demanded an amount through A2 and proceeded without any basis and particularly the Sanction was obtained by giving false information and suppressing the real particulars and records from the purview of the Sanctioning Authority. The sanction itself was not proper as the competent authority is the Board and not an individual. In the given situation, the sanctioned obtained based on the request / report referred therein but that was not produced before the trial court.
3. The sanction was given on 28.06.2011 based on the alleged report vide RC.No.198/2010/TNEB /CC-IV, dated 28.07.2010. The said reference in the said sanctioned letter gives rise to many doubts about the placing of complete records. Further, it is more than a year after the improper sanction was granted to prosecute the case, the said reference dated 28.07.2010 may not be proper report for a reason that at that point of time even the investigation was not completed and no records was made available for the purpose of appraising the authority to take stock of the entire situation.
4. The petitioner herein took an endeavour to procure the referred request letter before the trial court by filing the petition in Crl.MP.No.446/2017 under
Section 91 of Cr.P.C., while taking for consideration, the trial court refused to direct the prosecution to produce the alleged request vide RC.No.198/2010/TNEB/CC-IV, dated 28.07.2010 on the reason that the prosecution claimed the same as the official communication and the same cannot be produced before the court, though the other two documents were allowed to be produced before the court based on the consent from the prosecution.
5. Aggrieved against the said order passed by the trial court dated 04.04.2017 in Crl.MP.No.446 of 2017 in C.C.No.9/2011, the petitioner has filed this petition before this court.
6. Learned counsel for the petitioner would submit that the records furnished before the sanctioned authority and the history of the case placed before the sanctioned authority have the vital role to decide the issue. Based on the records placed before the sanction authority, the sanction was accorded but, now, it cannot be claimed as a privilege communication as it is go to the root of the matter and the petitioner having put to ordeal of trial.
7. Under these circumstances, the petitioner has every right and privilege to have the access to the said records to test the correctness of the sanction. The reason given for rejecting the same has no basis and non-production of the same not only affect adversely but also cause prejudice to the interest of the accused. There is legal necessity assigned to direct the prosecution to produce the said referred request for sanction for prosecution for due consideration by the trial court. Otherwise, it will be suppressed forever and the violation of procedure may not come to the light of this court. However, the learned trial Judge has not considered the importance of the documents and simply allowed the application partly in respect of Doc.Nos.1 and 2 and also directed the prosecution to furnish the copy of the two documents and dismissed the same in respect of Doc.Nos.3 and 4 without any valid reason and since because the prosecution has stated that the documents are internal communications between the Departments.
8. Learned counsel for the respondent /prosecution would submit that the document which is sought for by the petitioner/accused u/s.91 of Cr.P.C., are confidential communication and cannot be given to the petitioner.
9. Heard the learned counsel for the petitioner and learned counsel for the respondent and perused the materials available on record.
10. On perusal of the petition filed by the petitioner before the trial court u/s.91 of Cr.P.C., and also counter filed by the respondent / prosecution, it is revealed that the petitioner / accused A1, after the completion of trial, has filed the petition u/s.91 of Cr.P.C., to direct respondent to produce four documents viz., No.1,2,3 and 4.
11. After considering the facts and circumstances of the case, the trial court directed the prosecution to produce two documents viz., Doc.Nos.1 and 2 and rejected the documents viz., Doc.Nos.3 and 4. On perusal of the order, it is seen that the only reason given by the trial judge is that the documents sought for by the petitioner viz., document Nos. 3 and 4 are confidential communication and cannot be given to the petitioner. Hence, the petitioner is not entitled to receive the copy of the same. Even the petitioner has not established that document No.4 was sent to the Chairman, Tamilnadu Electricity Board on 20.01.2011.
12. On perusal of the records placed before this court, the only question to be decided is that as to whether the petitioner is entitled to get the copy of the document Nos.3 and 4 mentioned in the petition in Crl.MP.No.446 of 2017. In Paragraph No.3 of the petition, the petitioner has stated the necessity of the documents. On perusal of the records and also the contention raised by the learned counsel for the petitioner it is clear that these documents are very much essential for the petitioner to establish his case.
13. The Sine qua non of an order under this Section is a consideration by the court that the production of the documents concerned is desirable and necessary for the purposes of the trial.
Section 91 does not confer absolute right on accused. Where the document has no relevance on the case in hand, nor it is desirable for the court to summon the documents, the Court shall reject the petition filed under
Section 91.Section 91 is not subjected to
Sections 172 &
173 of the Code, the Prohibitions contained in
Sections 172 and
173 of the Code do not crib, cabin and confine the power of the court. Power of court u/s.91 of Cr.P.C., for summoning and production of documents is one of absolute discretion. The only condition for exercise of such discretion is that the court must be of the opinion that the production of document is necessary or desirable. Refusal to exercise power under
Section 91 of Cr.P.C., for directing production of documents on the ground that prosecution was not relying on such documents are not acceptable one.
14. On perusal of the petition filed by the petitioner before the trial court, this Court feels that the documents are necessary to establish the petitioner's case and the respondent/prosecution is directed to furnish the copy of the document Nos.3 and 4 mentioned in the petition in Crl.M.P.No.446 of 2017.
In the light of the above, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
01.08.2017 Speaking/Non-Speaking order Index : Yes/No gv P.VELMURUGAN, J.
gv To
1.The Directorate of Vigilance and Anti-corruption, Chennai-28
2. The Special Judge, Special Court under Prevention of Corruption Act, Chennai.
3.The Public Prosecutor, High Court, Madras.
Pre-delivery Order made in CRL.OP.No.14168 of 2017 and CRL.MP.No.9047 of 2017 01.08.2017