2026:HHC:30542 _____________________________ 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 398 of 202 Reserved on: 08.07.2026 Date of Decision 23 .07.2026 Ashish Sharma ...Petitioner Versus Anuradha Sharma ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the petitioner : In person. For the respondents : Nemo Rakesh Kainthla, Judge The petitioner has filed the present petition for setting aside the order dated 05.02.2026, passed by the learned Judicial Magistrate, First Class, Court No. V, Shimla, District Shimla, (learned Trial Court) vide which application filed under Section 91 of the Code of Criminal Procedure (Cr.P.C) for seizing the documents was dismissed. 2 2026:HHC:30542 2. Briefly stated that the facts giving rise to the present petition are that the petitioner filed an application under Section 91 of the CrPC, asserting that no proper investigation was done and a false report was filed by the police. A statement was made to HC Shakti Verma on 02.01.2023, and he failed to seize the evidence related to the case. The accused and other persons can destroy or manipulate the evidence. The respondent accepted during the internal appeal on 22.05.2022 that a fake experience certificate was created. The evidence related to the case is in the custody of the Principal, Manager, Superintendent and Chairman, and the evidence mentioned in the application was required to be seized, which was not seized by the police. Therefore, a prayer was made to pass an appropriate order for seizing the documents or depositing the documents in the Court. 3. The learned Trial Court dismissed the application after holding that the application did not hold substance and it was vague and baseless. 4. Being aggrieved by the order passed by the learned Trial Court, the complainant has filed the present 3 2026:HHC:30542 petition asserting that the Learned Trial Court failed to order the seizure of the documents. The respondent will get an undue benefit and will not be punished in law. It was wrongly held that the application was vague. The non-quashing of the order will have an adverse impact on society. Therefore, it was prayed that the present petition be allowed and the order dated 05.02.2026, passed by the learned Trial Court, be set aside. 5. The petitioner, who appeared in person, submitted that the learned Trial Court erred in dismissing the application on the ground that it was vague, the documents were essential and should have been seized by the Court. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 6. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 7. Section 91 of the CrPC provides that any Court may issue a summons to any person in whose possession 4 2026:HHC:30542 or power such a document is to attend and produce it at the time mentioned in the summons or order. 8. The complainant asserted in para 2 of the application that prima facie evidence related to this case is in the custody of Principal Ms Anupam, accused, Manager Ms. P. Sofat, office Superintendent Mr Ramesh Sharma and Chairman Mr R C Jeevan of Dayanand Public School, the Mall, Shimla. It was laid down by the Hon’ble Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi, 1964 SCC OnLine SC 41: (1965) 2 SCR 457: AIR 1965 SC 1251: (1965) 2 Cri LJ 256: (1965) 2 SCJ 18 that the words any person in Section 94 of the CrPC (corresponding to Section 91 of CrPC, 1973) does not include an accused. It was observed: “34. Keeping the above considerations in mind, let us look at the terms of the section. It will be noticed that the language is general and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words “attend and produce” are rather inept to cover the case of an accused person. It would be an odd procedure for a court to issue a summons to an accused person present in court “to attend and produce” a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to “attend and produce” a document. xxxxxxxxx 5 2026:HHC:30542 39. It is not necessary to review all the cases cited before us. It will be sufficient if we deal with the Full Bench decision of the Calcutta High Court in Satya Kinkar Rav v. Nikhil Chandra Jyotishopadhya [(1952) 2 ILR Cal 106], for the earlier cases are reviewed in it. Three main considerations prevailed with the High Court: First, that giving Section 94 its ordinary grammatical construction it must be held that it applies to accused persons as well as to others; secondly, that there is no inconsistency between Section 94 and other provisions of the Code, and thirdly, that this construction would not make the section ultra vires because calling upon an accused person to produce a document is not compelling the accused to give evidence against himself. Regarding the first two reasons, we may point out that these reasons do not conclude the matter. The High Court did not advert to the importance of the words “attend and produce” in Section 94, or the background of Article 20(3). The third reason is inconsistent with the decision of this Court in M.P. Sharma v. Satish Chandra [(1954) SCR 1077 at p 1083], and the learned Chief Justice might well have arrived at a different result if he had come to the conclusion that to call an accused person to produce a document does amount to compelling him to give evidence against himself. 40. We may mention that the construction which we have put on Section 94 was also placed in Ishwar Chandra Ghoshal v. Emperor [12 CWN 1016], Bajrangi Gope v. Emperor [ILR 38 Cal 304], and Raj Chandra Chakravati v. Hare Kishore Chakravarti [9 IC 564]. 41. Therefore, agreeing with the High Court, we hold that Section 94, on its true construction, does not apply to an accused person. The result is that the appeal is dismissed. 6 2026:HHC:30542 9. The applicant has filed the main petition for the registration of the FIR against the accused. The application is silent regarding the relevance of the documents for determining whether the matter is to be referred to the police for investigation or not. It was laid down in Ajay Mukherji v. State, 1971 SCC OnLine Cal 133 : 1971 Cri LJ 1329 that a document can be summoned under Sectin 94 of CrPC (corresponding to Section 91 of CrPC, 1973) only if it is relevant. It was observed at page 1331: 4. There is much force also behind the second submission regarding the non-conformance to the provisions of Section 94. Criminal P.C. As has been observed before, the order dated the 12th December, 1970 is an amalgam order directing the petitioner to produce certain accounts, receipts, vouchers and minutes as referred to therein and also issuing summons on him to give evidence. The said order passed by the learned Chief Presidency Magistrate, Calcutta is quite a laconic one and one looks in vain thereto for ascertaining the grounds of his satisfaction or even a consideration as to why he thought it necessary or desirable for the purposes of the trial, that the documents in question should be called for. The sine qua non of an order under S. 94, Cri. P.C. is a consideration by the court that the production of the documents concerned was desirable for the purposes of the trial and on being satisfied in that behalf, to issue summons thereunder. A failure on the part of the court to do so would result in a non-conformance to the provisions of S. 94, Cri. P.C. A reference in 7 2026:HHC:30542 this context may be made to the case of Hussenbhoy Abdoolabhoy Lalji v. Rashid B. Vershi, reported in AIR 1941 Bom 259 (FB) Chief Justice Beaumont delivering the judgment of the court observed at page 260 that: “We think the true view is that when an application is made to a court or to a police officer in the mofussil, under Section 94 for production of documents, the court is bound to consider whether there is a prima facie case for supposing that the documents are relevant”. 5. I respectfully agree with the said observation and I look in vain to the impugned order for such a consideration, in the absence whereof the ultimate order passed under Section 94, Criminal P.C. is not maintainable in law. A reference again may be made to the case of Muhammad Rahim v. Emperor reported in AIR 1935 Sind 13 (FB) wherein it was held that Sections 94 and 257 are not antagonistic but interdependent. It was observed by Ferrers, J.C., that under Sec. 94 any party to an enquiry, trial or other proceeding under the Code may at any stage apply to the court to sail for the production of a document or other thing and is entitled to its production if he satisfies the court that such production is necessary or desirable for the purposes of such enquiry, trial or other proceeding. The order in question passed by the learned Chief Presidency Magistrate, Calcutta on the 12th December, 1970 does not incorporate any such satisfaction or reason as to why summons under S. 94, Criminal P.C. was being issued and in the absence thereof the order is not in accordance with law. Mr. Mukherjee's contention that such satisfaction is implied, is not sustainable on ultimate analysis. Satisfaction, following a consideration enjoined in Section 94, Criminal P.C., must be apparent from the body of the order which must be a talking one and an inquiry that reaches 8 2026:HHC:30542 the point of hypotheses and assumptions is not an enquiry in conformance to the requirements of the statute. I therefore agree with the submissions of Mr. Dutt and hold that the order in question is not also in accordance with Section 94 of the Code. 6. The point may be approached from another standpoint, namely, a nonconformance to the procedure established by law. In the well-known case of Taylor v. Taylor reported in (1875) 1 Ch D 426, Jessol M.R. observed at page 431 that “when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted……………” 7. The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. The King Emperor, reported in (1936) 63 Ind App 372 : (AIR 1936 PC 253 (2)). Lord Roche, delivering the judgment of the Judicial Committee, observed at pages 381 and 382 that “The rule which applies is a different and not less well-recognised rule viz., that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden”. 8. A reference again may be made to a later decision wherein the Supreme Court reiterated the said principles in the case of State of Uttar Pradesh v. Singhara Singh reported in AIR 1964 SC 358. A.K. Sarkar, J. (as his Lordship then was) delivering the Judgment of the court observed at page 361 that “the rule adopted in (1875) 1 Ch D 426 is well- recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it 9 2026:HHC:30542 necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not ss, the statutory provision might as well not have been enacted.” 10. Thus, no fault can be found with the reasoning of the learned Trial Court. 11. It was laid down by the Hon’ble Supreme Court in Collector of Customs v. L.R. Melwani, 1968 SCC OnLine SC 161: (1969) 2 SCR 438: (1970) 2 SCJ 299: 1970 CRI LJ 885: AIR 1970 SC 962 that the High Court should not interfere with the discretion conferred upon the Trial Court in the matter of summoning the documents. It was observed: 14. That apart, we do not think that the High Court was justified in interfering with the discretion of the learned Magistrate. Whether a particular document should be summoned or not is essentially in the discretion of the trial court. In the instant case, the Special Public Prosecutor had assured the learned trial Magistrate that he would keep in readiness the statements of witnesses recorded by the Customs Authorities and would make available to the defence Counsel the statement of the concerned witness as and when he is examined. In view of that assurance, the learned Magistrate observed in his order: “The recording of the prosecution evidence has not yet commenced in this case, and at present there are no materials before me to decide whether or not the production of any of the statements and documents named by the 10 2026:HHC:30542 accused in his application is desirable or necessary for the purpose of the enquiry or trial. As stated at the outset, the learned Special Prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of the hearing of the case. The request made for the issue of the summons under Section 94, Criminal Procedure Code, is also omnibus.” The reasons given by the learned Magistrate in support of his order are good reasons. The High Court has not come to the conclusion that the documents in question, if not produced in court, are likely to be destroyed or tampered with, or that they are not likely to be made available when required. It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with copies of those statements even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents. Such interferences would unnecessarily impede the progress of cases and result in waste of public money and time, as has happened in this case. 12. In the present case, no case is made out to interfere with the discretion vested in the learned Trial Court. 13. No other point was urged. 14. In view of the above, the present application fails, and it is dismissed. 11 2026:HHC:30542 15. The present petition stands disposed of in the aforesaid terms, so also the pending applications, if any. 16. Record of the learned Trial Court be sent back forthwith. (Rakesh Kainthla) Judge 23rd July, 2026. (ravinder)