# Dr. Gomati Dwivedy Revisionist v. C.B.I./A.C.B. Branch, Lko

- **Citation:** (2025) 4 ILRA 892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-23
- **Case number:** Criminal Revision No. 1089 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-gomati-dwivedy-revisionist-v-c-b-i-a-c-b-branch-lko-53272
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 91 - Application for production of
document by accused at the stage prior to defence
- Rejection justified - Order refusing sanction for
prosecution of co-accused neither relevant nor
necessary at pre-charge stage - Not a document
falling under Section 91 Cr.P.C. when invoked by
accused at framing of charge - Section does not
confer an enforceable right on the accused to
summon documents for defence before charge is
framed - Verification of affidavit filed with the
application found incomplete and casual - Judicial
disapproval expressed.

Held, in light of St. of Orissa Vs Debendra
Nath Padhi, (2005) 1 SCC 568, the right of
the accused under Section 91 Cr.P.C.
ordinarily arises only at the stage of
defence. A document refusing sanction for
prosecution of a co-accused is not one
which can be compelled for production
under Section 91 at the pre-charge stage.
The revision was devoid of merit and was
rightly rejected.

Case Law Discussed:

## Text

892 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Apex Court sets a reminder that
taking cognizance of the offence is an area
exclusively within the domain of a
Magistrate. At this stage, the Magistrate has
to be satisfied whether there is sufficient
ground for proceeding and not whether
there is sufficient ground for conviction.
Whether the evidence is adequate for
supporting the conviction, can be determined
only at the trial and not at the stage of inquiry.
At the stage of issuing the process to the
accused, the Magistrate is not required to
record reasons.

16. Further, the Hon'ble Apex Court in
the case of Ramesh Chandra Vaishya vs.
State of U.P. and another, (2023) 17 SCC
615 has been pleased to observe that the first
question that calls for an answer is whether it
was at a place within public view that the
appellant hurled caste related abuses at the
complainant with an intent to insult or
intimidate with an intent to humiliate him.

17. In view of the aforesaid discussion, I
am of the opinion that there is no force in the
submissions made by the learned counsel for
the appellant. The Court concerned did not err
in taking cognizance into the matter and
thereby to summon the accused / appellant to
face trial for the offences made out prima
facie. There is no illegality, infirmity or
perversity in the impugned order. The prayer
made in the appeal is refused. The criminal
appeal being devoid of merits is liable to be
dismissed and the same is accordingly
dismissed.
----------
(2025) 4 ILRA 892
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.04.2025

BEFORE
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 1089 of 2024

Dr. Gomati Dwivedy ...Revisionist
Versus
C.B.I./A.C.B. Branch, Lko. ...Respondent

Counsel for the Revisionist:
Navneet Awasthi, Gaurav Chand Kaushik

Counsel for the Respondents:
Anurag Kumar Singh

Criminal Law - Criminal Procedure Code,
1973 - Section 91 - Application for production of
document by accused at the stage prior to defence
- Rejection justified - Order refusing sanction for
prosecution of co-accused neither relevant nor
necessary at pre-charge stage - Not a document
falling under Section 91 Cr.P.C. when invoked by
accused at framing of charge - Section does not
confer an enforceable right on the accused to
summon documents for defence before charge is
framed - Verification of affidavit filed with the
application found incomplete and casual - Judicial
disapproval expressed.

Held, in light of St. of Orissa Vs Debendra
Nath Padhi, (2005) 1 SCC 568, the right of
the accused under Section 91 Cr.P.C.
ordinarily arises only at the stage of
defence. A document refusing sanction for
prosecution of a co-accused is not one
which can be compelled for production
under Section 91 at the pre-charge stage.
The revision was devoid of merit and was
rightly rejected.

Case Law Discussed:

1. St. of Orissa Vs Debendra Nath Padhi,
(2005) 1 SCC 568.

2.
Criminal
Trials
Guidelines
Regarding
Inadequacies and Deficiencies, In Re Vs St. of
Andhra Pradesh & ors., (2021) 10 SCC 598.

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Navneet Awasthi, the
learned counsel for the revisionist, and Sri
4 All. Dr. Gomati Dwivedy Vs. C.B.I./A.C.B. Branch, Lko.
893
Anurag Kumar Singh, the learned counsel
for the respondent- CBI.

2. By means of the instant revision
filed under Section 397/401 Cr.P.C., the
revisionist has challenged the validity of an
order dated 01.06.2024 passed by the
Special Judge (Prevention of Corruption
Act) C.B.I. Court No.3, Lucknow in
Criminal Case No.2370 of 2018, arising out
of R.C. No. 0062015A0017, under Sections
120B, 409 and 420 IPC and Sections 23(2)
read
with
Section
13(1)(D)
of
the
Prevention of Corruption Act, 1988, lodged
at Police Station CBI/ACB, Lucknow,
whereby an application under Section 91
Cr.P.C. filed by the revisionist seeking a
direction
to
the
Secretary,
National
Informatics Centre for production of an
order refusing sanction for prosecution of
another co-accused person Naseem Ahmad
has been rejected.

3. A copy of the application under
Section 91 Cr.P.C. has been annexed as
Annexure No.11 to the affidavit filed in
support of the revision. This application is
supported
by
an
affidavit
of
the
revisionist. The affidavit runs into as
many as 52 paragraphs and numerous
judgments have been referred to and
extracts of the judgment have been
quoted in the affidavit of the revisionist.
The verification clause of the affidavit
filed before the learned trial court is
being quoted below:-

"Verification

I, the deponent above named do
hereby verify that the contents of
paragraphs__________ to ___________
of the affidavit are true to my own
knowledge,
those
of
paragraphs
___________ to ___________ are on the
basis of legal advise and those of
paras______________to
_______________are based on record.

No part of it is false and nothing
material has been concealed, so help me
God."

4. It is very disturbing to note that
even when cases are filed on the basis of
affidavits, the advocates treat verification
and swearing of affidavits as an empty
formality and they even do not fulfill that
formality before filing the affidavit in a
court. It is also very disturbing that the
Oath Commissioner has verified the
affidavit without even taking care to have a
look at it and without ascertaining as to
whether the deponent has in fact verified
the contents of the affidavit. This casual
approach of the learned Counsel for the
revisionist as well as that of the oath
commissioner cannot be appreciated by the
Court, to say the least.

5. Even on merits of, through the
application under Section 91 Cr.P.C., the
revisionist has prayed for directing the
Secretary, National Informatics Center
(NIC) to present before the trial Court the
order denying sanction for prosecution of a
co-accused person Sri Naseem Ahmad.

6. Section 91 Cr.P.C. provides as
follows: -

"91. 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,
894 INDIAN LAW REPORTS ALLAHABAD SERIES
requiring him to attend and produce it, or
to produce it, at the time and place stated
in the summons or order."

7. The trial court has referred to the
decision of the Hon'ble Supreme Court
reported in State of State Of Orissa
versus Debendra Nath Padhi: (2005) 1
SCC 568, wherein it has been held that: -

"25. Any document or other
thing envisaged under the aforesaid
provision can be ordered to be produced
on finding that the same is 'necessary or
desirable for the purpose of investigation,
inquiry, trial or other proceedings under
the Code'. The first and foremost
requirement of the section is about the
document being necessary or desirable.
The necessity or desirability would have to
be seen with reference to the stage when a
prayer is made for the production. If any
document is necessary or desirable for the
defence of the accused, the question of
invoking Section 91 at the initial stage of
framing of a charge would not arise since
defence of the accused is not relevant at
that stage. When the section refers to
investigation,
inquiry,
trial
or
other
proceedings, it is to be borne in mind that
under the section a police officer may move
the Court for summoning and production of
a document as may be necessary at any of
the stages mentioned in the section. In so
far as the accused is concerned, his
entitlement to seek order under Section 91
would ordinarily not come till the stage of
defence. When the section talks of the
document being necessary and desirable,
it is implicit that necessity and desirability
is to be examined considering the stage
when such a prayer for summoning and
production is made and the party who
makes it whether police or accused. If
under Section 227 what is necessary and
relevant is only the record produced in
terms of Section 173 of the Code, the
accused cannot at that stage invoke
Section 91 to seek production of any
document to show his innocence. Under
Section 91 summons for production of
document can be issued by Court and
under a written order an officer in charge
of police station can also direct production
thereof. Section 91 does not confer any
right on the accused to produce document
in
his
possession
to
prove
his
defence. Section 91 presupposes that when
the document is not produced process may
be initiated to compel production thereof."

(Emphasis added)

8. he learned counsel for the
revisionist has relied upon a decision of the
Hon'ble
Supreme
Court
reported
in
Criminal Trials Guidelines Regarding
Inadequacies and Deficiencies, In Re Vs.
State of Andhra Pradesh and others:
(2021) 10 SCC 598, wherein the Hon'ble
Supreme Court has expressed an opinion
that while furnishing the list of statements,
documents and material objects under
Section 207/208 Cr.P.C. the Magistrate
should also ensure that a list of other
materials
such
as
statements
or
objects/documents seized, but not relied on
should be furnished to the accused. The
Hon'ble Supreme Court formulated the
Draft Criminal Rules of Practice, 2021,
Rule 4 whereof provides as follows: -

"4. Supply of documents under
Sections 173, 207 and 208 CrPC.-(i)
Every accused shall be supplied with
statements of witness recorded under
Sections 161 and 164 CrPC and a list of
documents, material objects and exhibits
seized during investigation and relied upon
by the investigating officer (IO) in
4 All. Usman Ali Vs. State of U.P. & Ors.
895
accordance with Sections 207 and 208
CrPC.

Explanation :
The
list
of
statements, documents, material objects
and exhibits shall specify statements,
documents, material objects and exhibits
that are not relied upon by the investigating
officer."

9. The aforesaid draft Rule 4 merely
provides for supplying statements of
witness recorded under Sections 161 and
164 CrPC and a list of documents, material
objects
and
exhibits
seized
during
investigation and relied upon by the
Investigating Officer in accordance with
Sections 207 and 208 Cr.P.C.

10. An order refusing sanction for
prosecution of a co-accused person does
not fall in any of the categories of the
documents mentioned by the Hon'ble
Supreme Court while expressing the
aforesaid opinion in Criminal Trials
Guidelines Regarding Inadequacies
and Deficiencies, In Re (Supra). It
does not fall in any of the categories of
documents mentioned in the Draft Rule
4 relied upon by the learned Counsel for
the
revisionist.
Therefore,
the
revisionist has no right to seek a
direction for production of the order
passed
by
the
Secretary,
National
Informatics Centre refusing sanction for
prosecution of a co-accused person
under Section 91 Cr.P.C.

11. In view of the foregoing
discussion, I am of the considered view
that the order dated 01.06.2024 passed
by the Special Judge (Prevention of
Corruption Act) C.B.I. Court No.3,
Lucknow does not suffer from any
illegality, warranting interference by this
court
in
exercise
of
its
revisional
jurisdiction. The revision lacks merit and
the same is accordingly dismissed.
----------
(2025) 4 ILRA 895
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2025

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Crl. Misc. W.P. No. 2611 of 2020

Usman Ali ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Md. Aman Khan

Counsel for the Opp. Parties:
A.S.G.I., G.A., Manish Singh, Prahlad Kumar
Khare, Sanjay Kumar Yadav, Sikandar Khan,
Sushma Singh, Vineet Sankalp

Criminal Law - Constitution of India, 1950
- Section 226 & 243-R(b) - Indian Penal
Code, 1860 - Sections 34, 120-B, 147,
148, 149, 302 & 506 - Criminal Procedure
Code, 1973 - Sections - 82, 173, 173(2),
173(8), 311, 319 & 482 - National
Investigation Agency Act, 2008 - Sections
6, 6(2) & 6(5) - Criminal Law Amendment
Act, 1932- Section 7 - Unlawful Activities
(Prevention) Act, 1967 - SectionS 10(a)(i)
& 15(1) - writ petition - seeks multiple reliefs -
primarily
challenging
the
impugned
U.P.
Government's
order
transferring
the
investigation of Case from local police to the
CBCID without considering the petitioner's
demand for invoking the UAPA and further
prayed to for transferring the case to a central
agency like the NIA or CBI - FIR - offense of
murder and rioting - allegations are that
petitioner's brother was murdered - the
competent authority passed an order whereby
investigation of the case was transferred from