Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 210 of 2014 ---- Chhathan @ Chhathan Ansari, Son of late Bifan Ansari, Resident of Village-Loto, P.O. P.S. & District-Garhwa. ....Petitioner Versus 1. The State of Jharkhand.
2. Taj Mohammad Seikh, Son of late Ali Seikh, Chaukidar No. 3/11, Resident of village-Dhanakdiha, P.O. P.S. and District-Garhwa ( Informant). .....Respondents ---- Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY ---------- For the Petitioner : Mr. Rajiv Kumar, Advocate For the State : J.C. to G.P. II ----- 26/17.07.2017 Heard the parties. In this application, the petitioner has prayed for quashing the order dated 5.8.2014 and 5.7.2014, passed by the learned Additional Sessions Judge-II, Garhwa in S.T. No. 169 of 2010 and S.T. No. 112 of 2012 whereby and whereunder application preferred by the petitioner under section 91 of Cr.P.C. and under section 233 (2) of Cr.P.C. had been rejected. It has been submitted by the learned counsel for the petitioner that three kidnapped persons, who were subsequently released were named in the FIR and for the first time one Uday Nath Dhar Dubey disclosed about his kidnapping along with one Sarwesh Dhar Dubey. It has further been submitted that statement under section 164 Cr.P.C. of three witnesses were recorded after 10 to 11 months after the occurrence. It has further been submitted that in fact the father’s name of the persons kidnapped was changed from Sonadhar Dubey to Raj Narayan Dubey in the statement under section 164 Cr.P.C. Learned counsel submits that certain documents were required to be brought on record so as to arrive at a just decision of the case and summoning some defence witnesses, necessary applications were filed under section 91 Cr.P.C. and under section 233(2) of Cr.P.C., which however, was rejected by the learned trial court without any basis. It has also been submitted that petitioner has a right to cross examine and the petitioner cannot be foreclosed from correcting errors if petitioner was prevented by sufficient cause in not adducing relevant materials or on account of inadvertence the same were not produced. Learned counsel submits that in order to arrive at a just decision in the case and to prevent miscarriage of justice, learned trial court should have allowed the applications preferred by -2- the petitioner under section 233 (2)Cr.P.C and under section 91 of Cr.P.C. Learned counsel in support of his contention, has referred to the judgments passed in the case of Rajendra Prasad Vs. Narcotic Cell reported in (1999) 6 SCC110as also in the case of State of Kerala Vs. Babu and others reported in (1999) 4 SCC621 On the other hand, learned State counsel has submitted that in spite of expiry of a long period of time, petitioner chose to keep silent and only when the case was running for argument, the petitioner in order to delay the disposal of the trial had filed the applications, which were rightly rejected by the learned trial court. Learned counsel in support of his contention, has referred to the judgment passed in the case of C. Maghesh Vs. State of Karnataka reported in (2010) 5 SCC645 Allegation made in the FIR is that the petitioner is said to have taken part in the alleged kidnapping of five persons, three of whom, were released within ten minutes while rest were taken away. It is alleged that the accused persons first wanted to compromise the case with Sonadhar Dubey and one Permanand Dhar Dubey. Based on the aforesaid allegations, Garhwa P.S. Case No. 10 of 2009 was instituted. After investigation, chargesheet was submitted and after cognizance was taken, charge was framed on 30.07.2010 and the prosecution evidence was closed on 9.9.2013. Statement of the accused persons under section 313 Cr.P.C. was recorded on 25.9.2013 and the defence evidence was closed on 26.02.2014 and thereafter the case was fixed for argument. The petitioner had preferred two applications one under section 233 Cr.P.C. and under section 91 of Cr.P.C. for producing certain documents of the seizure list in connection with S.T. No. 166 of 2007 as well as some relevant paragraphs of the case diary of Garhwa P.S. Case No. 298 of 2008. In the application preferred under section 233 of Cr.P.C., prayer was made to adduce evidence on behalf of the defence. Learned trial court by order dated 5.8.2014 had rejected both the applications on the ground that in spite of sufficient opportunity having been given to the defence no prayer was made to issue summons and no explanation has been given as to why the documents, which are being sought to be brought on record, have not been brought on record within time. Further grounds which have been considered by the learned trial court is that the defence had already filed several documents, which have been -3- marked as exhibit and the fact that case is running for argument for more than three years. Considering the arguments advanced by the learned counsel for the petitioner, it is to be seen as to whether the application preferred by the petitioner was indeed as a ruse to delay the disposal of the trial and whether the same is intended to fill up the lacuna in the defence case. In the case of Rajendra Prasad (supra), it was held as follows:-
“8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." In the case of State of Kerala (supra), it was held as follows:-
"1. The High Court in the impugned judgment proceeded on the basis that a statement recorded by an investigating officer in any case which was under investigation, being a statement made under Section 161 of the Code, the same can be used for the limited purpose provided under Section 162 of the Code read with Section 145 of the Evidence Act. There can be no quarrel with this approach of the High Court in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial. This is because as seen from the observations 3 of this Court in the case of Tahsildar Singh the very object of enactment of Section 161 of the Code and Section 145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witness. This right has not been taken away by Section 172 of the Code and, as noticed above, there is no prohibition in regard to this right of the accused either under the Code or under the Evidence Act. But the question for consideration is, how does the accused exercise this right with reference to a previous statement of a witness made in another case which is recorded by the investigating officer in that case under the provisions of Section 161 of the Code? In our opinion, this right certainly does not flow under Section 172 of the Code nor is the accused entitled to these previous statements under Section 207 of the Code. But, this does not mean that the accused is denied of his limited benefit of using the said previous statements recorded during the course of another investigation. The answer to this question, in our considered view, lies in Section 91(1) of the Code which reads thus: -
“91. Summons to produce document or other thing.-(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, enquiry, 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, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the -4- requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- (a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”
12. The language of Section 91 is much wider than the language of Section 172 and by no stretch of imagination it could be contended that the case diary maintained under Section 172 of the Code is not a document as contemplated under Section 91(1) of the Code. If that be so and if the court comes to the conclusion that the production of such a document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under Section 91 of the Code dehors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections (2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said case diary, the court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case diary so produced are the previous statements recorded under Section 161 of the Code". Judgements cited by the learned counsel for the petitioner referred to above are with respect to rectifying the mistakes if relevant materials or evidences have not been brought on record and the court should not be ultra rigid in not permitting rectification of the mistakes. Other part is of consideration by the court as to whether the production of the documents as sought for is necessary or desirable and if the answer is in the affirmative, the court has the power to allow such application under section 91 of Cr.P.C. Learned state counsel on the other hand has referred to the case of C. Magesh (supra), in which it was held that as per section 233 Cr.P.C., the trial court can refuse securing of defence evidence if it feels that the same is being done to further delay the trial. The question of deliberate attempt on the part of an accused to delay the trial has to be seen in the context of the prayer of the accused as ultimately the final goal is of delivering justice. If the petitioner was prevented for any other reasons whatsoever in not preferring the applications within time, same cannot be rejected solely on the grounds of an attempt made by the petitioner in delaying the disposal of the trial without properly appreciating as to whether the documents which the petitioner wants to be exhibited are necessary for rendering a just decision in the case after considering the bearing it may have in the case itself. Frivolous petitions does require the -5- treatment they deserve but it is for the learned trial court to come to a finding as to the necessity or otherwise of exhibiting certain documents as prayed for by the petitioner. Thus, in view of what has been stated above, since the learned trial court has merely concentrated itself on the so called delay deliberately being made by the petitioner and has not considered the applications as had been filed by the petitioner, order dated 5.8.2014 is quashed and set aside and the matter is remanded back to the learned trial court to pass a fresh order in accordance with law upon consideration of the observations made in the earlier part of this order. This application is disposed of. (Rongon Mukhopadhyay, J) Rakesh/