Current Affairs

Source: Bombay High Court

Why in News?

Recently, the Bombay High Court in the matter of Dr. Sublendu Prakash Diwakar v. State of Maharashtra, has held that as per the provisions of Section 91 of the Criminal Procedure Code, 1973 (CrPC), at the stage of framing of charges an accused can seek production of potentially exculpatory documents voluntarily submitted to investigating officer even if he has the documents in his possession.

What is the Background of Dr. Sublendu Prakash Diwakar v. State of Maharashtra Case?

• In this case, the petitioner is arraigned as an accused for offences punishable under Section 376 and Section 506 of the Indian Penal Code, 1860 (IPC) and under Section 66(E) of The Information Technology Act, 2000 (IT ACT).
• The grievance of the petitioner is that on 7^th January 2022, when the charge-sheet was filed before the trial Court, the Investigating Offcer deliberately withheld the documents tendered by him during the course of investigation and what the petitioner expected was a fair investigation and production of these documents before the Court along with the charge-sheet.
• Thereafter, an application was filed before the Additional Sessions Judge under Section 91 of the CrPC r/w 165 of the Indian Evidence Act, 1872(IEA), seeking production of documents which were seized by the Investigating Offcer during the course of investigation.
• This application was rejected by the Additional Sessions Judge.
• Aggrieved by the same, the petitioner has filed a petition before the Bombay High Court for quashing and setting aside of the order passed by the Additional Sessions Judge.
• Allowing the petition, the High Court set aside the order of the Additional Sessions Judge.

What were the Court’s Observations?

• Justice Bharati Dangre observed that under section 91 of the CrPC, an accused at the stage of framing of charges, can seek production of potentially exculpatory documents voluntarily submitted to investigating officer even if he has the documents in his possession and submitted copies to the investigating officer.
• The Court further stated that there shall be a clarification at this stage about what documents are furnished by the accused as at the time of trial, the Investigating Offcer may dispute the documents/material and its contents and therefore if the accused/Petitioner intends to have these documents produced at the time of framing of charge, provided the court is satisfied about its necessity and desirability for the purpose of trial, such application deserve to be granted.

What are the Relevant Legal Provisions Involved in it?

Section 91 of CrPC

• This Section deals with the summons to produce document or other thing. It states that -

(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 or the Bankers Books Evidence Act, 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.

Section 165 of IEA

• This Section deals with the judge’s power to put questions or order production. It states that -

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

Section 66(E) of the IT Act

• This section deals with the punishment for violation of privacy. It states that -
• Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.

Explanation. --For the purposes of this section--

(a) Transmit means to electronically send a visual image with the intent that it be viewed by a person or persons.

(b) Capture, with respect to an image, means to videotape, photograph, film or record by any means.

(c) Private area means the naked or undergarment clad genitals, pubic area, buttocks or female breast.

(d) Publishes means reproduction in the printed or electronic form and making it available for public.

(e) Under circumstances violating privacy means circumstances in which a person can have a reasonable expectation that--

(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.