® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE8H DAY OF MARCH, 2021 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL PETITION NO.6941 OF2015BETWEEN:
1. Sri. Y. Venkatesh, Aged about 46 years, S/o. Late Yellappa, Resident of the premises Bearing No.136, Eden Garden Layout, Chandapura Road, Near Alliance College, Anekal, Anekal Taluk.562
106.
2. Sri. Y. Srinivas, Aged about 35 years, S/o. Late Yellappa, Resident of Vishnu building, Bommasandra Village, Anekal Taluk 562 106.
3. Sri. Manjunatha, Aged about 30 years, S/o. Ramappa, Residing behind ACC Factory, Bommasandra Village, Attibele Hobli, Anekal Taluk - 562 106.
4. Sri. Manja @ Canteen Manja, Aged about 31 years, s/o. Mahabala, Resident of the premises Crl.P.No.6941/2015 2 bearing No.256-A/1, Hotel Reddy Residency, Bommasandra Village, Anekal Taluk, Bangalore District - 562 106. ..Petitioners (By Sri. Raghavendra K., Advocate) AND: State of Karnataka, by the Station House Officer, Hebbagodi Police Station, Anekal Taluk. 562
106. .. Respondent (By Sri. Thejesh P., High Court Govt. Pleader) **** This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, praying to call for the records in S.C.No.16/2010, presently pending on the file of the III Addl. District and Sessions Judge, Bangalore Rural District, sitting at Anekal and further be pleased to set aside the order dated 19-09-2015 passed in S.C.No.16/2010 by III Additional District and Sessions Judge, Bangalore Rural District, on the application filed by the petitioners/accused under Section 91 of the Code of Criminal Procedure and grant the said application in its entirety, in the ends of justice. This Criminal Petition coming on for Final Hearing, through Physical Hearing/Video Conferencing Hearing this day, the Court made the following: ORDER
The present petitioners are accused Nos.1 to 4 in S.C.No.16/2010, pending before the learned III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Crl.P.No.6941/2015 3 Anekal, (hereinafter for brevity referred to as “the Trial Court”) for the offences punishable under Sections 364, 302, 201 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC").
2. The Advocate for the accused has filed an application under Section 91 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."
) in the Trial Court, praying to call for four sets of documents as described below: I) Station House Officer, Hebbagodi Police Station to cause the production of: i) Station House Diary of Hebbagodi Police Station for the period from 09-09-2009 to 20-09-2009. ii) Prisoners search register maintained at the Hebbagodi Police Station for the month of September 2009. iii) Duty Roaster maintained at Hebbagodi Police Station for the month of September 2009. iv) Lock-up guard book for the month of September 2009 maintained at the Hebbagodi Police Station. II) Circle Inspector of Police, Attibele Circle Bangalore Rural District to cause the production of: i. Dairy maintained by the Inspector in connection with the case in crime No.397/09. ii. Log Book pertaining to the motor vehicle/Jeep allotted to the Inspector of Police during the month of September 2009. Crl.P.No.6941/2015 4 iii. Note book maintained by the Inspector for the month of September 2009 wherein the entries with regard to his movements are made in connection with the discharge of his official duties. III) The Superintendent of Police, Bangalore Rural District, Bangalore to cause the production of the copies of the case dairy pertaining to the case in crime No.397/09 of Hebbagodi Police submitted to him through Dy.S.P. by the investigator and also the tappal book maintained in his office which would indicate the dates on which the copies of the case diaries came to be submitted by him. IV) Officer in charge of District Control Wireless room, Bangalore Rural District, Bangalore to cause the production of the record maintained by him which is in the nature of either log book or in any other register wherein entries with regard to the messages received and sent through wireless communication for the month of September 2009.
3. The said application was opposed by the prosecution.
4. The Trial Court, after hearing both side on the said application, by its order dated 19-09-2015, rejected the said application filed by the accused. Challenging the said order, the accused Nos.1 to 4 have preferred the present petition.
5. The respondent is being represented by the learned High Court Government Pleader.
6. The learned counsel for the petitioners in his argument submitted that, the application under Section 91 of the Cr.P.C. Crl.P.No.6941/2015 5 was filed by the accused, summoning four sets of documents mentioned in the application, since they wanted to confront those documents with the prosecution witness in their cross- examination. The same was required since the entire case of the prosecution was based on circumstantial evidence and the alleged recovery of the materials. Therefore, the documents summoned were required for the accused to place their defence appropriately before the Court. He also submitted that a similar application filed by the prosecution came to be allowed by the Trial Court. However, the accused since was not aggrieved by the said order, they did not chose to challenge the same. Learned counsel further submitted that the Trial Court, while rejecting the application, did not say that the accused persons are not entitled for those documents, but had only said that it is premature. In his support, learned counsel relied upon two judgments of the Hon'ble Apex Court in the case of Kalpath Rai Vs. State through C.B.I. reported in 1998 CRI.L.J.
369 (1) and State of Crl.P.No.6941/2015 6 Kerala Vs. Babu and others reported in AIR1999Supreme Court 2161.
7. Learned High Court Government Pleader for the respondent – State, in his arguments submitted that, the stage of the case in the Trial Court is only in the beginning of the trial, where one witness for the prosecution has been examined as PW-1 and there are lot more witnesses to be examined on behalf of the prosecution. It is only at the end of the trial, the Investigating Officer would lead his evidence, as such, summoning of any document by the accused through the prosecution by filing an application under Section 91 of the Cr.P.C. is not required and not warranted. He further submitted that the documents which are sought to be summoned by the accused cannot be used as evidence in the case and they can be summoned only if they are used by a Police Officer and only to refresh his memory. Since in the instant case, the Investigating Officer is not yet examined, the accused cannot summon those documents, which documents are mainly of the procedural aspect to be maintained and managed by the Police in their day-to-day management of the Police Crl.P.No.6941/2015 7 Station and the investigation of the crime. As such, confronting those documents with any other prosecution witnesses also does not warrant and is not required. Learned Government Pleader did not even fail to mention that many of the entries mentioned in the case-diary would have contained information which cannot be disclosed to the accused since there would be some threat to the life of the informants with reference to which there can be mention in the case-diary. In his support, he relied upon the judgment of the Hon'ble Apex Court in the case of Balakram Vs. State of Uttarakhand and others reported in (2017) 7 Supreme Court Cases 668.
8. In the light of the above, the only point that arise for my consideration in this petition is:
"Whether the circumstance of the case warrants the exercise of the power of this Court under Section 482 of the code of Criminal Procedure, 1973, in favour of the petitioners by setting aside the impugned order passed by the Trial Court and allowing of the application filed by the accused under Section 91 of the Cr.P.C.?.
9. The offence alleged against the accused inter alia involves the one punishable under Sections 302 and 201 of the Crl.P.No.6941/2015 8 IPC. According to the petitioners, the entire case of the prosecution is based upon the circumstantial evidence.
10. Section 91 of the Code of Criminal Procedure, 1973, reads as below:
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, 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, 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 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.” A bare reading of the said Section, no doubt, empowers the Court or any Officer in charge of the Police Station who feels that the production of any document or other thing is necessary Crl.P.No.6941/2015 9 or desirable for the purposes of any investigation, inquiry or trial, may summon those documents. The said Section makes it amply clear that, merely as a routine and merely by just asking by a party including the accused, a document need not be and cannot be summoned. Before summoning the said document, the Court or the Officer summoning the document must satisfy itself/himself that it is necessary or desirable for the purposes of investigation or the trial.
11. The Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 Supreme Court Cases 568, with respect to Section 91 of the Cr.P.C., was pleased to hold that the necessity and desirability of the document is to be examined considering the stage when such a prayer is made and the party who makes it, whether Police or accused.
12. In the instant case, admittedly, the application is made by the accused and the purpose of they summoning the documents, as stated by the learned counsel for the petitioners/accused, is for confronting the prosecution witnesses.
13. In Kalpnath Rai's case (supra), at paragraph 94, the Hon'ble Apex Court was pleased to observe as below:- Crl.P.No.6941/2015 10
"94. We do not find any force in the said contention. No doubt Daily Diary is a document which is in constant use in police station. But no prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by prosecution as a matter of course in every case, the function of the police station would be greatly impaired. It is neither desirable nor feasible for the prosecution to produce such diaries in all cases. Of course it is open to the defence to move the Court for getting down such diaries if the defence wants to make use of it."
This judgment makes it clear that, though a party, particularly, the accused in their defence can move the Court for getting down such documents, like the diary, as a matter of routine, the same cannot be summoned, since it is neither desirable nor feasible for the prosecution to produce such diary in all cases.
14. In Babu's case (supra), the Hon'ble Apex Court at para-13 of the judgment was pleased to observe that, a case- diary of another case, not pertaining to the trial in hand can be summoned, if the Court trying the case considers that, production of such a case-diary is necessary or desirable for the purpose of trial under Section 91 of the Cr.P.C. From the said judgment also, it is clear that merely at the asking by a party, more particularly, the accused, the case-diary Crl.P.No.6941/2015 11 cannot be summoned to the Court, as a matter of routine. Before summoning those documents, the Court must be satisfied that, it is desirable or necessary either for the investigation or for trial and it is only thereafter it can summon the documents.
15. In Balakram's case (supra), while referring to Section 172(2) and 172(3) of the Cr.P.C., the Hon'ble Apex Court was pleased to observe that, there is no scope in Section 172 of the Cr.P.C. to enable the Court, prosecution or accused to use the Police diary for the purpose of asking any witness other than the Police Officer who made it. Denial of a right to accused to inspect the case-diary cannot be characterised as unreasonable or arbitrary. Confidentiality is always kept in the matter of investigation and it is not desirable to make available the Police diary to the accused on his demand. The Hon'ble Apex Court has also in the very same judgment while referring to its previous judgment in the case of Mukund Lal Vs. Union of India reported in AIR1989Supreme Court 144, after referring to para-3 of its judgment also gave an instance as to why the case-diary cannot be summoned as a routine. It observed that, for instance, in the case-diary, there Crl.P.No.6941/2015 12 might be a note as regards the identity of the informant who gave some information which resulted in investigation into a particular aspect. Public Interest demands that such an entry is not made available to the accused, for, it might endanger the safety of the informants and it might deter the informants from giving any information to assist the Investigating Agency.
16. In the instant case, admittedly, the matter has not reached the stage of cross-examination of the Investigating Officer. There is nothing on record to show that the case-diary has been referred to or relied upon by the prosecution witness - PW-1, who is said to have been already examined by the prosecution. Therefore, in the absence of anybody referring to any of those documents which are required to be summoned and particularly, when the Investigating Officer has not yet entered the witness-box, as such, no question of he refreshing his memory, by referring to or relying upon the case-diary arises. Summoning the documents as mentioned in the application filed under Section 91 of the Cr.P.C. including the case-diary not only from the complainant Police Station but also from other Police Station and the District Police Control Wireless Room, would be nothing but, giving a scope for bringing the unwanted elements Crl.P.No.6941/2015 13 into the criminal case to make it more complicated, rather than searching the truth in the case.
17. The nature of the documents sought to be summoned by the accused through the present application filed under Section 91 of the Cr.P.C. appears as though they are intending to bring the entire Police Station before the Court not just necessarily of those documents which may be necessary at the appropriate stage during the course of the trial. Probably, all the registers, books, log books, notebooks, everything which a Police Station may maintain during the course of its activity, including the investigation of the criminal case appears to be attempted to be summoned without there being any specific reason as to why they are necessary, that too, particularly, at the stage when the present application is made. Furthermore, it is not necessary to say that, when in a Criminal Case like the one on hand, it is not upon the accused to disprove their case or to show who the guilty is, and the entire burden of proving the guilt of the accused beyond reasonable doubt would be solely upon the prosecution, why the accused was in requirement of these documents, at this stage, is also not Crl.P.No.6941/2015 14 forthcoming. It is also to be suffice for the accused to imbibe a serious doubt in the case of the prosecution if he succeeds, naturally, the same would enure to the benefit of the accused, which exercise the accused could do even without summoning these documents. Even otherwise, if the accused feels that the documents which they are intending to, may be of some necessity, still, if according to the accused, if there are serious procedural lapses on the part of the Police Officer, in the cross-examination of the said Investigating Officer also, the accused would be at liberty to highlight the same, in which event, proving that there are no such procedural omission or commission or any irregularities, would be again on the shoulder of the prosecution. In such a circumstance, I am of the view that, there is no necessity or requirement or bona fide reason in the application filed by the accused for summoning those documents. It is noticing these aspects, the Trial Court has rightly rejected the application filed by the accused. Hence, I do not find any element of abuse of process of law or any interest of Crl.P.No.6941/2015 15 justice, warranting the allowing of the application filed by the accused, under Section 91 of the Cr.P.C. Accordingly I proceed to pass the following: ORDER
The petition stands dismissed as devoid of merit; Registry to transmit a copy of this order to the Trial Court, forthwith. As desired by the learned counsel for the petitioners, it would be highly appreciated if the Trial Court completes the trial at the earliest. Sd/- JUDGE BMV*