This article is written by Mayur Sherawat. The article talks about Section 91 of the Code of Criminal Procedure, its essential elements, exceptions, and constitutional validity along with recent case laws considering the same.

Introduction 

Let’s imagine a scenario where a criminal case is being investigated by the police. During the investigation, the police discover that certain documents or materials are crucial for the proper conduct of the case. However, these documents are not readily available and cannot be easily obtained without the assistance of the court. In such a situation, Section 91 of the Code of Criminal Procedure,1973 comes into play, It empowers a court or an officer in charge of a police station to issue a summons or a written order for the production of documents or things in possession of a person related to the matter. The court can gather pertinent evidence and make sure that parties present the requisite paper or electronic records to back up their claims by using Section 91 of the CrPC.

What does Section 91 CrPC state

The Section essentially conveys the following – 

  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 before a Court or officer, such Court may issue a summons,(in case of an 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 said thing at the time and place stated in the summons or order.
  2. If a person is asked to provide a document or something else under this provision, they can send the requested item instead of showing up in person, and this will be considered as complying with the request.
  3. Section 91 does not cover the production of the following items-

(a) Those listed under Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers Books Evidence Act, 1891 (13 of 1891), or

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

In situations where procuring of personal attendance of a person related to the case is required, either summons may be issued under Sections 61 – 69 or warrants under Sections 70 – 81. A summon under Section 2(w) of the CrPC is essentially a court order requiring a person to appear in court while warrants under Section 2(x) of the CrPC authorise law enforcement authorities to conduct actions such as arrest. The key difference separating the use of Section 91 from warrants and summons is that the mere causing of production of necessary documents suffices the purpose and personally appearing before the court is not essential.

Essential elements of Section 91 CrPC

‘Document or other thing’

The word thing refers to a physical material and not an abstract thing. Thus by extension issuing summons for the purpose of taking a person’s specimen signature or handwriting cannot be validated as to be for the cause of producing a document under this Section. The same was established in T. Subbiah v. S.K.D. Ramaswamy Nadar, (1969), where the Madras High Court held that summoning an accused for the creation of a specimen signature was violative of Article 20(3) of the Constitution of India and amounts to the use of testimonial compulsion.

Despite there being a lack of any specific references to data or electronic evidence in the plain wording of the Section, Section 91 is commonly understood to be used by Law enforcement agencies to include the production of digital data and other forms of electronic evidence possessed by intermediaries or other persons.

The desirability of documents to be summoned 

The essential element of any order under Section 91 of the CrPC is the reflection of the court that the documents to be produced must be desirable or necessary to the trial, investigation, inquiry, trial or other proceeding under the Code. This condition traces its development in the case of Ajay Mukherji vs The State And Ors (1971). In the case directions given to the petitioner to produce accounts, receipts, vouchers, and minute books of congress meetings by the Chief Presidency Magistrate, Calcutta were quashed by the Calcutta High Court, as the case dealt with matters concerning defamation of Ajay Kumar Mukherji (the petitioner) under Section 501 and  502 of the Indian Penal Code (IPC),1860 and the production of said documents was deemed unnecessary by the consideration of the High Court.

The identity of the possessor must be known

Along with that, the court must be informed of the name of the person in whose possession or power the document is, or else the application for summons will not be entertained, this was held in Lotan Bhoji v. The State of Maharashtra, (1974). In the mentioned case the accused who was booked under Sections  7(c), 4(iv) and 7(b) of the Protection of the Civil Rights Act, (1955) filed an application for the summons of statements of witnesses, that the accused alleged were taken by the police but not supplied to the accused. The application for summons of the documents was vaguely addressed to the superintendent of police and the names of the witnesses were also absent in the application. It was held that an application made without mentioning the names of officers or witnesses certainly cannot be entertained.

Requirements for a written order to be issued

The requirement for a written order when a police officer exercises their authority under Section 91 serves as a procedural protection. Courts have determined that in this situation, a verbal order or instruction given to someone to produce a document or item would not be sufficiently established by Emperor vs Durga Prasad And Ors, 1922

Exceptions to Section 91 CrPC

The term ‘person’ mentioned in the Section does not include an accused person in trial. This exception was established indirectly through consideration of Section 94 of the CrPC in the landmark case of Shyamlal Mohanlal vs State Of Gujarat (1964). In the case a registered money lender was prosecuted for failure to maintain books in accordance with Money-lenders Act, 2010 and an application was filed before the Magistrate asking the respondent to produce certain books of account. The Magistrate refused to issue such an order drawing on the idea of Article 20(3) of the Constitution, the matter reached the Supreme Court after an appeal and a judgment delivered by Justice Sikri. held that a directive that compels an individual to provide a document, contrary to the provisions of Article 20(3), would not be considered legal according to Section 175 of the Indian Penal Code. Not only did the court take into account the constitutional validity of providing limited rights against self-incrimination but also examined Sections of the CrPC pointing towards the protection of the accused against testimonial compulsion. The standard for affording some degree of protection to the accused traces from English law where taking into account political considerations, the aim was not just to bring the criminal to justice but also to protect the accused from a tyrannical abuse of authority by the government.  

Significance of Section 91 CrPC

  • It assists in protecting and safeguarding evidence that, if not presented to the court or the police officer, could be misplaced, destroyed, or tampered with.
  • It makes it possible for law enforcement authorities or the court to carefully review and evaluate the item or document submitted in order to determine its admissibility, legitimacy, and significance.
  • It makes it easier to find and reveal information that could be important to the case and either support or refute the accusations made against the defendant.
  • By making sure that no evidence is suppressed or disguised, it safeguards the rights and interests of all parties engaged in the case, including the state, the accused, the complainant, and the witness.
  • Because police officers and courts are required to adhere to specific protocols and precautions while issuing and carrying out summonses under Section 91 CrPC, it also acts as a check and balance on their authority. For instance, they must abide by Sections 123 and 124 of the Indian Evidence Act, (1872), which protects the confidentiality and privilege of specific documents. Additionally, they must offer the person called a fair amount of time and a chance to comply with the request.

Constitutional validity of Section 91 CrPC

Historical context to rights against Self-Incrimination

As illustrated by the previous case Section 91 comes in opposition to the rights of the accused, mainly those of self-incrimination. The maxim ‘nemo tenetur seipsum accusare,’ which means ‘no person is bound to accuse himself,’ was the historical root behind rights given to the accused against self-incrimination. The maxim is one facet of the accusatorial and inquisitorial legal systems that were followed in different periods in England. In the accusatorial system, which existed prior to Henry II’s reign, the community and then the state pursued alleged wrongdoers through the examination of others, as well as the defendant in the early years. The inquisitorial system, which originated in religious courts, required the alleged wrongdoer to swear an oath ex officio affirming his guilt. An official had the authority to require anyone who was in front of him to take an oath under which they would swear to tell the truth to the best of their knowledge regarding all matters about which they would be questioned. Prior to taking the oath, however, the individual in question was not informed of the specifics of the charges against him or whether he was being investigated for a crime.

The idea that a person cannot be forced to act in a self-incriminatory manner against themselves under oath in any proceeding before an official tribunal seeking information gained gradual following. This is due to the use of this oath in English court proceedings, especially to root out political heresies, which increased the opposition from different political stakeholders. Along with that growing ideas of enlightenment and atheism led to further opposition to the ecclesiastical oath ex officio. These ideas gained traction in American jurisprudence and were consequently adopted as the basis of the 5th Amendment in the American Constitution.

Rights given under the Indian Constitution 

Indian jurisprudence adopted and tailored the English law and the American legal system to its own scenario, taking inspiration from the same it also recognized the rights of the accused against self-incrimination under Article 20(3) which states it is firmly established that the authority and discretion granted by Section 91 are very extensive, constrained only by the restrictions explicitly stated in the provision.

Privacy concerns over the use of Section 91 CrPC

The absence of any exemptions in Section 91 for any particular sensitive items or documents (such as a diary) would indicate that privacy was not a top priority while this provision was being written. Alternatively, it is possible that the policy was intended to favour law enforcement authorities’ interests in security and investigation over personal values like privacy.

However, the decision of the nine-judge bench of the Supreme Court in the historic case of Justice K.S.Puttaswamy(Retd) vs Union Of India, 2018, where the right to privacy was affirmed to be a fundamental right under the Constitution of India, is a key development that will likely affect the exercise of powers under Section 91 going forward and calls for its reform. It still needs to be determined in this situation whether powers under Section 91, particularly when used unilaterally by police(in the way of orders issued by the police), would pass the fairness, justice, and reasonableness test. The wide latitude given to police to issue orders under Section 91, with no assurance that privacy will be taken into account as a ground, is of particular concern. Although it has happened on occasion, Indian courts have rarely used privacy as a justification for interfering with Section 91 directives. This approach will probably change in the post-Puttaswamy age when parties will challenge Section 91 rulings more frequently on the grounds of privacy. The downstream impact of this will also mean that lower courts will be more inclined to examine the effect of summonses to produce documents or things, on privacy, when issuing orders under Section 91.

Landmark judgements 

The case Google India (P) Ltd. v. Visaka Industries, (2020), re-established in an interesting manner in which powers under Section 91 have been interpreted is that orders under the provision need not only be directed to individuals (‘target individuals’) who have in their personal possession, documents or things. Courts have interpreted the powers under this provision to extend to the production of documents and things that are in the control of an individual who is holding the same on behalf of the target individual. For example, heads of tech companies can be included under the section to produce data present on their sites and products.

In the case of CBI v. V. Vijay Sai Reddy, (2013), the Apex Court held that the investigating officer in a case need not be required to approach the High Court to authorise each and every direction, When the Investigating Officer of a case is in need of certain documents/information for verification with reference to the investigation it is sufficient to place all the materials under Section 91.

In the case of Kishore Samrite v. State of U.P, (2012), the appellant, Shri Kishore Samrite, an ex-member of the legislative assembly of Madhya Pradesh filed a writ petition acting as the next of friend to Sukanya Devi, Balram Singh and Sumrita Devi According to the appellant, these three persons were unlawfully detained and incapacitated to file the petition. The appellant claimed to have gained this information from news and blog sites. The petition was dismissed due to lack of evidence and malice on the part of the appellant to abuse the court process and imposed a penalty clause on the appellant for the same. During the proceedings of the case, the court held as sub silentio the fact that it is possible to apply Section 91 in a private complaint, and the clause is applicable to both police and private complaints.

Another case of special importance is that of Om Parkash Sharma v. CBI (2000), the Supreme Court recognized that although the language of the provision might suggest unlimited authority, the inherent restriction on its exercise depends on the specific stage or circumstance in which it is applied, in line with the nature of the proceedings and the compelling needs and desirability to accomplish the intended task or objective. This judgment effectively made the provision constitutionally valid although the sustainability of its application can be determined judicially on a case to case basis.

Conclusion 

In conclusion, Section 91 of the Code of Criminal Procedure is a powerful tool in the hands of courts and law enforcement authorities to compel the production of documents or other tangible items deemed necessary for the purposes of investigation, inquiry, trial, or other legal proceedings. It is a provision that needs finer tuning in order to balance the need for gathering evidence with the rights and protections afforded to individuals, particularly in the context of self-incrimination.

Frequently Asked Questions (FAQs)

What is Section 91 of the Code of Criminal Procedure (CrPC)?

Section 91 of the CrPC empowers a court or an officer in charge of a police station to issue a summons or a written order for the production of documents or things in the possession of a person when it is necessary or desirable for the purposes of an investigation, inquiry, trial, or other legal proceeding.

What types of documents or things can be requested under Section 91?

Section 91 allows for the production of any document or physical object that is necessary or desirable for the purposes of the legal proceeding. This can include records, papers, electronic documents, or any tangible item.

Are there any exceptions to Section 91?

Yes, Section 91 does not apply to certain documents or things, such as those covered under Sections 123 and 124 of the Indian Evidence Act, 1872, or items in the custody of the postal or telegraph authority. Along with that it also does not include items listed under the Banker’s Books Evidence Act, 1891. 

Can the Court apply Section 91 during the Investigation stage?

A Court is not entitled under Section 91 to produce documents or other things during the investigation stage of a private complaint. The purpose of this stage is to ensure that the complaint is made in good faith and that there are sufficient grounds for proceeding with the case. This was established in D. Veeraiah v. K. Veeraiah(1987) where the Andhra Pradesh High Court ruled against an order of the Munsif Magistrate for summons of a car under Section 91 during the investigation stage of a complaint.

Is the Section Constitutionally valid?

Section 91 has been deemed constitutionally valid, but its application is subject to the nature of proceedings, necessity, and desirability.

How has the right to privacy affected the use of Section 91?

The recognition of the right to privacy as a fundamental right by the Supreme Court in the Puttaswamy case has raised concerns about the use of Section 91. Courts may now scrutinise Section 91 orders more closely for potential privacy violations, which may lead to reforms in its application.

Can Section 91 be challenged in court on the grounds of privacy?

Yes, in the post-Puttaswamy era, parties are more likely to challenge Section 91 orders on privacy grounds. This may lead to a greater examination of the impact of such orders on privacy, especially when issued unilaterally by the police.

References 

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