1. Court’s decision
The Delhi High Court dismissed a petition under Section 482 Cr.P.C. seeking to overturn the Special Judge’s refusal to direct the Central Bureau of Investigation and consortium banks to produce corporate and financial documents for the petitioner, a former director of Educomp Infrastructure and School Management Ltd. The Court held that an accused cannot invoke Section 91 Cr.P.C. during ongoing investigation merely to obtain documents to help answer investigators’ questions. Such a right arises only after the final report is filed, under Section 207 Cr.P.C. The Court found no illegality in the Special Judge’s conclusion that the application was premature and that Section 91 cannot be used to shape or direct an ongoing investigation.
2. Facts
The petitioner served as Director of EISML from 2006 to 2018. The company faced severe financial stress and initiated corporate insolvency resolution proceedings in 2018 under Section 10 of the Insolvency and Bankruptcy Code. With the company’s admission into CIRP, the entire management—including custody of documents and statutory records—vested in the Resolution Professional.
In 2021, SBI lodged a complaint alleging a fraud of ₹806.07 crore committed by the Educomp group by diverting term loans for unauthorised purposes. CBI registered FIR RC 2232021A0007 for conspiracy, cheating, breach of trust and corruption. During interrogation, the Investigating Officer sought clarifications from the petitioner regarding company transactions between 2007–2010.
The petitioner claimed that he had no access to EISML’s records post-IBC and was unable to answer questions without them. His requests to banks, CBI and the new management for copies of documents were refused. He filed an application under Section 91 Cr.P.C. before the Special Judge seeking production of the documents. The Special Judge rejected it on 20.12.2023, holding the request premature. The petitioner challenged that order before the High Court.
3. Issues
- Whether an accused can seek production of documents under Section 91 Cr.P.C. during ongoing investigation.
- Whether necessity or desirability under Section 91 must be assessed from the perspective of ongoing investigation or convenience of the accused.
- Whether inability to answer investigators’ queries entitles an accused to obtain documents prior to filing of the chargesheet.
- Whether judicial interference at the pre-charge-sheet stage would amount to a “mini-trial” or hamper investigation.
4. Petitioner’s arguments
The petitioner submitted that EISML’s entry into CIRP left him with no access to the company’s own records, including Board resolutions, loan documentation, consortium decisions, valuations and financial data. He argued that without these records, answering questions related to decade-old transactions was impossible, thereby violating his right to fair investigation under Article 21.
He contended that Section 91 is an enabling provision that allows Courts to summon documents “necessary or desirable” even during investigation. He criticised the Special Judge for applying a test of “bias” against the IO, arguing that such a requirement does not exist in Section 91.
Relying on Om Prakash Sharma v. CBI (2000), Satish Mehra, and Nitya Dharmananda, he argued that Courts must permit access to material capable of fundamentally altering investigative conclusions. He emphasised that he was not seeking documents to obstruct investigation, but only to answer queries accurately.
5. Respondents’ arguments
CBI opposed the petition, asserting that the accused cannot dictate the course of investigation or seek documents at the interrogation stage. Relevant documents were already with the IO and had been shown to the petitioner when required. The law does not mandate that the accused be supplied with copies of documents during investigation.
CBI argued that Section 91 powers must be exercised sparingly and that necessity/desirability must be judged from the standpoint of investigation—not the accused’s convenience. Since the petitioner’s purpose was to build his defence, the correct stage for such disclosure would be after filing of the police report under Section 207.
CBI relied on State of Orissa v. Debendra Nath Padhi (2005) to argue that Section 91 cannot be invoked for a fishing inquiry or to prematurely introduce defence evidence. Banks supporting the investigation also emphasised that many documents were confidential and already submitted to CBI, making disclosure impermissible at this stage.
6. Analysis of the law
The Court began by clarifying the scope of Section 91:
(a) Section 91 applies to investigation, inquiry and trial—but with limits
Section 91 empowers Courts and police officers to summon documents if their production is necessary or desirable. However, this must be interpreted in harmony with the procedural scheme of Cr.P.C., which separates investigation from trial.
(b) Necessity is judged from the standpoint of investigation—not the accused
The Court emphasised that the accused cannot invoke Section 91 merely to make interrogation easier or to prepare his defence during investigation. At this stage, necessity pertains only to the investigator’s needs. The petitioner was already being shown documents during questioning; his demand for copies exceeded what Section 91 permits.
(c) Defence rights arise after filing of chargesheet
Under Section 207 Cr.P.C., all relied-upon documents must be supplied to the accused after the police report is filed. Thus, the statutory scheme bars advance disclosure during investigation.
(d) Investigation cannot be converted into a “mini-trial”
The Court relied on P. Chidambaram v. Directorate of Enforcement (2019), which warns against confronting an accused with every document collected, as doing so may compromise the investigation and risk evidence tampering.
(e) Memory lapse is not a legal ground for disclosure
If the accused cannot recall details after 15 years, he may state so; the law does not compel him to answer impossible questions.
7. Precedent analysis
Although the High Court distinguished the cases cited by the petitioner, it reaffirmed key legal propositions:
1. Om Prakash Sharma and Satish Mehra
These apply only after chargesheet when the accused seeks documents to argue discharge or innocence. They do not apply during active investigation.
2. Debendra Nath Padhi (2005)
Section 91 cannot be used to permit a roving or fishing inquiry or to introduce defence material prematurely. The High Court followed this principle.
3. P. Chidambaram (2019)
Courts must avoid enabling premature confrontation with all documents, which amounts to a mini-trial and may impede investigation.
The Court concluded that none of the authorities supported intervention at the pre-charge-sheet stage.
8. Court’s reasoning
The Court held:
• The documents belong to the petitioner’s own company; he is free to attempt independent procurement.
• The IO already possesses the documents and has confronted the petitioner with them; he is not being denied access altogether.
• Section 91 is not meant to give the accused copies of documents solely to help him “answer appropriately.”
• Fair investigation does not require supply of documents unless there is an allegation of bias, which the petitioner has not made.
• Demanding documents at this stage is effectively an attempt to control investigation, which is impermissible under law.
The Court nevertheless added a protective observation that when the petitioner is confronted with voluminous or old documents, the IO must give adequate time for him to read and respond.
Finding no illegality, perversity or jurisdictional error, the Court upheld the Special Judge’s order.
9. Conclusion
The writ petition was dismissed. The Court held that:
• Section 91 cannot be invoked by an accused during investigation merely for his convenience.
• Disclosure of documents will occur only after the filing of chargesheet.
• The accused may state inability to remember details; the law does not mandate accurate answers to decade-old queries.
• No constitutional infirmity or prejudice was established.
All pending applications were disposed of.
10. Implications
This ruling strengthens the jurisprudence that:
• Section 91 is not a discovery tool for the accused during investigation.
• Courts will not interfere with ongoing investigations absent clear unfairness or bias.
• IBC-induced loss of access to corporate records cannot compel premature disclosure.
• Investigators retain autonomy; accused persons cannot dictate sequencing or production of documents.
• Proper procedural safeguards come into play only after filing of the police report.
The judgment will significantly influence white-collar crime investigations where accused executives seek access to corporate financial documents while interrogation is underway.
CASE LAW REFERENCES
1. State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568
Section 91 cannot be used for a fishing inquiry or to introduce defence evidence during investigation.
2. P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24
Courts must avoid converting investigation into a mini-trial.
3. Om Prakash Sharma v. CBI (2000) 5 SCC 679
Applies at post-charge-sheet stage; relied on but distinguished.
FAQs
1. Can an accused seek documents under Section 91 Cr.P.C. during investigation?
No. Section 91 may be invoked during investigation only if production is necessary for the investigation, not the accused’s convenience.
2. When is an accused entitled to receive documents collected by the prosecution?
After filing of the chargesheet, under Section 207 Cr.P.C.
3. Can an accused demand documents to help answer IO’s questions?
No. The accused may state inability to recall; Section 91 cannot be used to aid interrogation.