Section 91 CrPC Cannot Be Invoked Before The Defence’s Stage: Supreme Court Reiterates
The Court clarified that while Section 91 of the Code does not explicitly specify a timeline, settled law dictates that the accused's entitlement to seek such documents ordinarily only arises at the stage of entering their defence.
Justice Ahsanuddin Amanullah and Justice Prashant Kumar Mishra, Supreme Court
The Supreme Court has reiterated that Section 91 of the Code of Criminal Procedure, 1973 (‘Code’) cannot be invoked before the stage of the defence evidence.
The Bench of Justice Ahsanuddin Amanullah and Justice Prashant Kumar Mishra, while relying heavily on Sarla Gupta v Directorate of Enforcement, (2025) observed, “The law is no longer res integra, having been lastly settled by the 3-Judge Bench in Sarla Gupta (supra), which provides clarity as to the relevant stage at which power under Section 91 of the Code may be invoked. In the underlying case in these appeals, such stage has not yet been reached, as defence evidence has not commenced.”
Senior Advocates Ranjeet Kumar and Siddharth Agarwal appeared for the Appellant, while Senior Advocate Rajkumar Bhaskar Thakare appeared for the Respondents.
Factual Background
Appeals were filed assailing the judgment passed by the Delhi High Court, whereby it dismissed the petitions filed by the appellant and upheld the Order passed by the Trial Court in the Complaint Case directing the production of certain documents under Section 91 of the Code.
The appellant in these appeals is the complainant in a complaint filed in 2016 under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’), alleging dishonour of a cheque for Rupees Two Crores issued by respondent no.2.
In 2019, Respondent No.2 moved an application under Section 210 of the Code before the Trial Court seeking amalgamation of the complaint with a First Information Report lodged by Respondent No. 2 against the appellant. Whilst the said application was pending, Respondent No. 2 chose to withdraw the same. Instead, Respondent No. 2 filed an application under Section 91 of the Code, seeking production of certain documents.
By the order, the Trial Court directed the appellant to produce two documents, viz. (i) Income Tax Returns (including audited balance sheets and complete schedules) for the Financial Years 2009-2010 to 2016-2017, and (ii) Bank Account Statements of the appellant.
Contention of the Parties
The Appellant submitted that only dilatory tactics are being employed by Respondent no.2, inasmuch as the matter relates to the year 2016, and from 2018 onwards, yet the proceedings have remained pending/in a state of dormancy till 2024. The application filed under Section 210 of the Code, it was submitted, was kept pending for years and ultimately withdrawn in 2024, only to be substituted by an application under Section 91 of the Code. It was asserted that this resulted in the Order passed by the Trial Court, which partly allowed the application under Section 91 of the Code, and was subsequently upheld by the High Court. It was submitted that the law on the point now stands settled. It was contended that, since such a stage had not yet arisen, the burden placed upon the appellant to produce the said two documents is wholly beyond jurisdiction.
Respondent No. 2 argued that the documents sought are essential to proving that the cheque was not issued for a legally enforceable debt. It was contended that these records, which are exclusively in the appellant's possession, would reveal a pre-existing debt owed by the complainant to the respondent that far exceeds the cheque amount. The respondent maintained that if they are prevented from seeking these documents now, their primary defence would be effectively excluded from the Trial Court's consideration, as they cannot produce or exhibit evidence they do not physically hold.
Observations of the Court
The judgment of the Supreme Court in Sarla Gupta (supra) held that the object is to ensure that the accused has knowledge of the documents, objects, etc. in the custody of the investigating officer which are not relied upon so that at the appropriate stage, the accused can apply by invoking the provisions of Section 91CrPC (Section 94 BNSS) for providing copies of the documents.
Further, it was held, “At the stage of entering upon defence, an accused can apply for the issue of process for the production of any document or thing in accordance with Section 233(3)CrPC [Section 256(3) BNSS]. At this stage, he can also apply for the production of a document or a thing that is in the custody of the prosecution but has not been produced. A fair trial is a part of the right guaranteed to an accused under Article 21 of the Constitution. The right to a fair trial of the accused includes the right to defend. The right to defend consists of the right to lead the defence evidence by examining the witnesses and producing the documents. Therefore, the accused is entitled to exercise his right at the stage of entering upon defence by compelling the prosecution or a third party to produce a document or a thing in their possession or custody. The court can decline the request of the accused for issuing process for the production of documents only on the limited grounds set out in sub-section (3) of Section 233CrPC.”
The Court said, “Evidently, Section 91 of the Code does not itself prescribe any stage. The core issue remains whether invocation of power under Section 91 of the Code by the Trial Court is as per the manner contemplated/provided for in law. We are mindful that the underlying case in Sarla Gupta (supra)1 concerned the Prevention of Money- Laundering Act, 2002. It is seen that State of Orissa v Debendra Nath Padhi, (2005) 1 SCC 568, relied upon by the High Court, was considered by a Bench of equal strength in Sarla Gupta (supra). On Debendra Nath Padhi (supra), the Court commented in Sarla Gupta (supra).”
The Court also relied on the judgment Om Prakash Sharma v CBI, Delhi, (2000), which held, “Thus, this decision will have no application when it comes to the right of the accused to apply for the production of documents by invoking Section 91CrPC at the stage of entering defence. The decision means that the said right is ordinarily not available at the time of framing of the charge. The reason is that while framing a charge, the court can consider only that material which forms part of the charge-sheet.”
Accordingly, the Court allowed the criminal appeals and set aside the impugned judgment.
Cause Title: Suninder Sandha v. State of NCT of Delhi & Anr. [SLP (Crl.) No. 11600-11601 of 2025]
Appearances:
Petitioner: Senior Advocates Ranjeet Kumar and Siddharth Agarwal, AORs Bhaskar Aditya and Rajan Narain, Advocates Abhimanyu Bhandari, Adit S. Pujari, Bhavesh Seth, Prerna Mukherjee, Akash Dikshit, Pavitra Dixit, Asim Naeem, Maneesh Saxena, Vishant Prakash and Cherry Gupta.
Respondents: Senior Advocate Rajkumar Bhaskar Thakare, AORs Mukesh Kumar Maroria, Bhaskar Aditya and Adit S. Pujari, and Advocates Prasanjeet Mohapatra, Sanjay Kumar Tyagi, Neelakshi Bhaduria, Rishikesh Haridas, and Ishaan Sharma.