Rajasthan High Court
Ratti S/O Aseena vs State Of Rajasthan (2024:Rj-Jp:5798) on 1 February, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:5798]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 3842/2020
Ratti S/o Aseena, R/o Mirchuni, PS Tapukda, Distt. Alwar, Raj.
----Complainant-Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Bilaluddin S/o Abdul Rehman, R/o Mirchuni, PS Tapukada,
Distt. Alwar, Raj.
3. Sakir S/o Shri Abdul Rehman, R/o Mirchuni, PS Tapukada,
Distt. Alwar, Raj.
4. Kutbuddin S/o Shri Abdul Rehman, R/o Mirchuni, PS
Tapukada, Distt. Alwar, Raj.
5. Liyakat Ali S/o Shri Abdul Rehman, R/o Mirchuni, PS
Tapukada, Distt. Alwar, Raj.
----Respondents
For Petitioner(s) : Mr. R K Mathur, Sr. Adv
Mr. Kritin Sharma
For Respondent(s) : Mr. Atul Sharma, PP
Mr. Rahul Tiwari
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
01/02/2024
Reportable
1. Petitioner-complainant has preferred this Criminal
Miscellaneous Petition under Section 482 CrPC, seeking following prayer therein:
"It is therefore, humbly prayed that this Criminal Misc. Petition may kindly accepted and allowed order dated 27.02.2020 passed by learned Session Judge No.2, Tijara, Alwar in Session Case No.51/2019 State Vs. Bilaluddin and ors. may kindly be quashed and set aside the application filed by the accused-respondents may kindly be rejected.
That it may further be directed to the learned trial court not to allow the accused-persons to use the material supplied through court during the course of recording the evidence of the prosecution and such material can only be used during the course of leading evidence in defence if any."(Downloaded on 05/02/2024 at 08:44:34 PM)
[2024:RJ-JP:5798] (2 of 16) [CRLMP-3842/2020]
2. Heard learned senior counsel for petitioner, learned Public Prosecutor and perused the record placed before this Court.
3. Learned senior counsel contended that on an application dated 28.01.2020 filed by and on behalf of accused-respondents No.2 to 5 herein (Annx. 2), moved at the stage of "before framing charges" in the present criminal case, the trial Judge, vide impugned order dated 27.02.2020, has issued directions to the SHO, Police Station - Tapukda, District - Alwar to produce following information before the Court (i) The tower location of Mobile No. 9982671312 on the date of incident i.e. 20.08.2019, belonging to the petitioner-complainant and (ii) CCTV footage on the date of incident i.e. 20.08.2019 from the ATM of SBI situated opposite to Police Line, Alwar relating to the presence of accused- Sakir Ali.
Learned senior counsel contended that both information were sought to produce by the accused persons for the purpose of their defence evidence, however, application was moved by accused persons, at the stage of "before framing charges" and should not have been entertained by the trial Court. He submits that by procuring both information, accused persons want to prove that on the date of incident of murder on 20.08.2019, petitioner- complainant-Ratti, who lodged the FIR, was not present on spot at Tapukda, hence his mobile tower location from Vodafone company was prayed to be produced and further in order to take a plea of alibi, for accused-Sakir Ali that he was not present on that date at the spot rather he was present in the ATM of SBI, therefore, the CCTV footage of SBI ATM has been sought to be produced. (Downloaded on 05/02/2024 at 08:44:34 PM) [2024:RJ-JP:5798] (3 of 16) [CRLMP-3842/2020] Learned senior counsel contends that it is the responsibility of accused persons to produce their defence evidence and they cannot be allowed to collect their defence evidence through Court or in the alternative such an application should not have been accepted by the trial Court before reaching the stage of present criminal case for defence evidence. Therefore, the trial Judge has committed illegality and jurisdictional error in allowing the application of accused persons, that too at the stage of "before framing charges".
Learned senior counsel has also made an additional or alternative argument that after passing the impugned order dated 27.02.2020, learned trial Court vide its order dated 16.07.2020, further directed the prosecution to made available the mobile tower location and CCTV footage in pen drive and to place before the Court; Thereafter, learned trial Court vide order dated 23.07.2020 has allowed to made available four pen drives to the accused persons, therefore, at least trial Court may be directed not to allow accused persons to use such material procured through Court, during the course of recording the prosecution evidence and such material can be allowed to be used by accused persons only during course of their defence evidence.
4. Heard. Considered.
5. At the outset, it may be noted that the State has not challenged the order dated 27.02.2020 and the present petition has been filed by the complainant. In that view of matter, learned Public Prosecutor prayed to pass appropriate orders in the present (Downloaded on 05/02/2024 at 08:44:34 PM) [2024:RJ-JP:5798] (4 of 16) [CRLMP-3842/2020] petition, as this Hon'ble Court deems it just and proper for ends of justice.
5. Having adverted to contentions put forth by the learned senior counsel for petitioner and from perusal of the impugned order so also the other material placed on record, this Court finds that the present Sessions case arises out of an FIR No.228/2019 registered on 20.08.2019 at Police Station - Tapukda, District - Alwar. Copy of FIR is available on record as (Annx. 1). The FIR was lodged by the petitioner-Ratti stating inter alia that on 20.08.2019 at about 03:00 p.m., petitioner, his brother Razzak and one Raheesh were sitting on the shop of Shri Rukmu at Tapukda and all of sudden six persons came on motorcycle and one car, got down from their vehicles and started firing bullets rapidly on them. In such attack, his brother razzak was died. Accused-Sakir Ali was named in the FIR with other accused persons, against whom allegations were made to open firearms. On this FIR, police after investigation submitted charge-sheet against accused persons-respondents No.2 to 5 herein for offences under Sections 302, 201 & 120-B of IPC read with Sections 3/25 & 5/27 Arms Act. After filing of charge-sheet, the present Sessions case came to be registered and at the stage of "before framing charges", accused persons moved an application dated 28.01.2020 (Annx. 2). In the application, no provision of law is indicated, however, it appears that the trial Court entertained and decided the said application in exercise of its powers under Section 91 CrPC. Learned trial Court allowed the application vide impugned order dated 27.02.2020, which has been challenged herein. (Downloaded on 05/02/2024 at 08:44:34 PM) [2024:RJ-JP:5798] (5 of 16) [CRLMP-3842/2020]
6. From perusal of the impugned order dated 27.02.2020, it appears that the trial Court has observed that it was incumbent for the Investigating Officer to collect the entire relevant evidence during the course of investigation. Learned trial Court guided itself by two judgments of Hon'ble Supreme Court, referred in the order impugned, wherein the principle of law was expounded that "Investigation is a delicate painstaking and dexterous process. Ethical conduct is absolutely essential for investigative professionalism". Further the Investigating Officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth." Thus, the impugned order gives a reflection that the trial Court observed that looking to the nature of allegations in the FIR and the case of prosecution, the mobile tower location of complainant-Ratti on the date of incident i.e. 20.08.2019 at about 03:00 p.m. as also CCTV footage from the SBI ATM in respect of presence of accused-Sakir Ali at that relevant point of time are necessary, relevant and desirable piece of evidence for the purpose of investigation and trial of the present criminal case, hence in such backdrop of facts and in the light of judgments of the Hon'ble Supreme Court, the impugned order was passed and directions have been issued by the trial Court to concerned SHO, to produce such material.
7. Before dealing with arguments raised by the learned senior counsel to assail the impugned order, this Court deems it apposite to go through to the provision of Section 91 CrPC and for ready reference same is being reproduced hereunder: (Downloaded on 05/02/2024 at 08:44:35 PM)
[2024:RJ-JP:5798] (6 of 16) [CRLMP-3842/2020] "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 Banker's 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."
8. Section 91 CrPC empowers the Court or any Officer-in- charge of a Police Station to issue summons or order for production of any document or other thing which in the opinion of the Court or the Officer-in-charge of Police Station, is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code of Criminal Procedure. The language of Section 91 CrPC implies that powers can be exercised by the Court or the Officer-in-charge of the Police Station concerned, at any stage of the investigation or criminal trial of a case, but language of Section 91 CrPC does not expressly provide as to who can invoke this provision. However, it is explicitly vivid from the language of Section 91 CrPC that before invoking this provision, the satisfaction of the Court or the police, as the case may be with regard to requiring necessity or desirability of the (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (7 of 16) [CRLMP-3842/2020] document or any other thing sought to be summoned or ordered to be produced, is sine qua non.
9. In this context, it would be apposite to refer a judgment of the High Court of Delhi in the matter of Shakuntala Vs. State of Delhi, 139 (2007) DLT 178, wherein it has been held:
"...4. It is settled law that fair and just investigation is a hallmark of any investigation. It is not the duty of the Investigating Officer to strengthen the case of prosecution by withholding the evidence collected by him. If an Investigating Officer withholds the evidence collected by him, the accused has a right to reply upon that evidence and tell the Court to take that evidence into account while framing the charges. The Court while framing charges may not take into account the defense of the accused or the documents in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the Court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. If it is brought to the notice of the Court by the accused that some of the evidence or documents have been withheld by the Investigating Officer or the prosecution deliberately, so that truth does not come out before the Court, the Court, before framing of charge can order the Investigating Officer to place the entire investigation before it and ask him to produce case diaries. Fair investigation is the right of the accused and this right can be exercised by the accused at the time of charge and the accused can insist upon the Court to consider the evidence collected by the Investigating Officer but not made part of the charge-sheet. ... Criminal trial impinges on the liberty of a person and must not be taken casually. ..."
(Emphasis supplied)
10. It would not be out of place to reproduce the observation of the Hon'ble Supreme Court, in case of Neelesh Jain vs. State of Rajasthan [2006 CriLJ 2151], in para No.17, thus:
"It is no argument to claim that the accused can ask for the documents withheld by the prosecution at the time of entering his defense. The (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (8 of 16) [CRLMP-3842/2020] defense has to be built up from day one of the trial and not an ad hoc basis. Unless all the evidence collected during the course of the investigation is given to the accused, he is prevented from constructing a proper defense. The right to defend, which flows from the fundamental right to "life" and "personal liberty" enshrined in Article 21 of the Constitution of India, is not an illusionary right, but a substantive one. One cannot tie the hands of the accused, deprive him of the necessary evidence to defend himself and still claim that a fair trial is being conducted. Moreover, such piece-meal supply of relevant documents and evidence needlessly prolongs the trial. The Courts must endeavor to deliver justice in the shortest time period. Prolonged trial not only looses its relevance, it also adds to the burgeoning burden on the judiciary. Strategies need to be adopted which would make the Courts efficient and litigant friendly and which would ensure quick delivery of justice to the people. Thus, the documents or evidence, which can be provided immediately, need not be held back till the accused enters his defense...."
(Emphasis supplied)
11. Coming back to facts of the case in hand, it has not and cannot be disputed from the side of petitioner-complainant that the mobile tower location of the complainant on the date and time of incident of murder and the CCTV footage from the ATM of SBI relating to show, non-presence of accused-Sakir Ali on the spot at the time of incident, in order to take a plea of alibi by him, would be necessary and relevant piece of evidence, more particularly, looking to allegations of the FIR referred hereinabove; The contention of senior counsel for petitioner is that accused persons themselves can submit such evidence/ record at the time of leading their evidence in defence or application filed by them cannot be allowed at the stage of charge i.e. before the stage of criminal trial reach for defence evidence. As far as relevancy of summoned material in the present case of murder is concerned, it (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (9 of 16) [CRLMP-3842/2020] may be noted that the trial Court itself first, considered that the material of mobile tower location of complainant and CCTV footage in respect of one of accused-Sakir Ali is cogent, necessary, desirable and relevant piece of evidence in the trial of present criminal case, which ought of have been collected by the Investigating Officer during the course of investigation. Impugned order gives an implied reflection on that trial Court arrived at such conclusion, before passing the impugned order. Thus, to this extent, it may be held that the trial Court is well within its jurisdiction to pass the order impugned, directing the concerned SHO of Police Station Tapukda to produce such material before the Court.
12. The issue is in respect of the locus standi of accused persons to move an application dated 28.01.2020 for this purpose and that too at the stage of "before framing charges" in the criminal trial. In this regard, this Court finds that language of Section 91 CrPC nowhere puts a restriction on an accused person to invoke jurisdiction of the Court as envisaged in this provision. Although, ordinarily the entitlement of the accused to seek any direction or order under Section 91 CrPC is considered at the stage of defence and at least not at the stage of framing charge. However, same is not an absolute principle of law without exception, but in a different fact and situation, an accused can be allowed to invoke power of Court under Section 91 CrPC, after completion of investigation and submission of charge-sheet by the police. The view expressed by this court finds support from the judgment of recently passed by the Division Bench of the High Court of Madhya (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (10 of 16) [CRLMP-3842/2020] Pradesh in Special Police Establishment Vs. Umesh Tiwari [Miscellaneous Criminal Case No.60404 of 2021], decided on 21.01.2022. It was a case where an application filed by accused under Section 91 CrPC, seeking production of call details of conversation allegedly took place through mobile of the complainant and other persons, was allowed by the trial Court even at the stage of during the course of pendency of the investigation. The order was challenged by the prosecution invoking the inherent powers of the High Court under Section 482 CrPC. The Division Bench after a detailed analytical discussion about the scope and jurisdiction of Section 91 CrPC, held that since the process of investigation is unilateral and out of bounds of the accused, therefore at the behest of the accused, Section 91 CrPC cannot be allowed to be invoked by him during pendency of the process of investigation, but after filing of the charge-sheet in the Court, from which stage the proceedings become multilateral, the accused can also invoke Section 91 CrPC before the Court. For ready reference, the relevant parts of judgment, para No.4.5 and 4.6 are reproduced hereunder for ready reference:
"4.5. From the aforesaid analysis, it is vivid that it would not be proper to restrict the right to invoke Section 91 to only the Court and the Police Officer. The window of Section 91 will have to remain open for all the stakeholders in an investigation, inquiry, trial and other proceedings, be it the victim, accused, police, Court or any other stakeholders involved.
4.6. However, since the process of investigation is unilateral in nature where the accused has no role to play during pendency of investigation, the accused cannot as of right invoke Section 91. However, the invocation of Section 91 during investigation remains open for the Court, the Police or the victim whereas the accused can (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (11 of 16) [CRLMP-3842/2020] invoke Section 91 on and after filing the charge- sheet from which stage the proceedings become multilateral bringing to the fore the other stakeholders i.e. the victim and the accused also, besides the prosecution.
(Emphasis supplied)
13. It is no more res integra that the paramount object behind Section 91 CrPC is to ensure that no cogent material/ relevant piece of evidence having connection to the offence/ issue, should be left undiscovered and unconsidered in the pursuit of truth during investigation, inquiry, trial or other proceedings. The ultimate goal/ motto of investigation/ trial is to unearth the truth and to discover the complete, correct and true fact so that no one may left in dark. Therefore, in order to discover the truth and to achieve the final goal of fair and impartial investigation/ trial, the provision of Section 91 CrPC can be resort to by the Court or the Police at any stage of the investigation, inquiry, trial or even in other proceedings.
14. The Hon'ble Supreme Court in Nitya Dharamananda Alias K. Lenin Vs. Gopal Sheelum Reddy [(2018)2 SCC 93], observed as under:
"5. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and touphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise his power, the court is to be satisfied that the material available with the investigator, no made part of the charge sheet, has crucial bearing on the issue of framing of charge."
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15. The Division Bench of High Court of Madhya Pradesh in case of Umesh Tiwari (supra) after analytical discussion of Section 91 CrPC expounded a proposition of law that Section 91 CrPC can be invoked by the Court either suo moto or at the behest of any stakeholder in the process of investigation, inquiry, trial or any other proceeding and though the accused is not permitted to invoke such provision during pendency of investigation, but after filing of charge-sheet the accused was also allowed to invoke the provision. In this view, the application under Section 91 CrPC filed by and on behalf of the accused is maintainable and even otherwise the Court could have exercised powers to summon the material suo moto to discover the truth and to prevent the failure of justice with accused persons. For ready reference, the relevant portion of the judgment in case of Umesh Tiwari (supra) is reproduced hereunder:
"7. The Court can invoke Section 91 either suo moto or on behest of some stakeholder in the process of investigation, inquiry, trial or other proceedings. The cause for invoking Section 91 can arise from any source, be it victim, accused (except during pendency of investigation) and Police. Denying any of the stakeholder, the right to invoke Section 91 may defeat the ultimate object behind Section 91 which is to ensure discovery to truth, rendering of justice and preventing failure of justice. However, any such invocation by any stakeholder at any point of time would be subject to satisfaction of necessity and desirability of that document to the process of investigation, inquiry, trial or other proceedings.
8. In view of above discussion, what comes out loud and clear is that by the impugned order the trial Court permitted the respondent accused to invoke Section 91 during pendency of investigation which as per the discussion above is impermissible since the process of investigation is unilateral and out of bounds for the accused.(Downloaded on 05/02/2024 at 08:44:35 PM)
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9. Accordingly, the impugned order challenged herein cannot be sustained in the eyes of law. However, looking to the ultimate object behind Section 91 which is to discover the truth, render justice and prevent failure of justice, if the trial Court feels that the call details as directed to be requisitioned by way of summon by the impugned order are necessary and desirable for the purpose of investigation which is presently pending then the trial Court is free to direct the investigating agency to take the said material into consideration so that the investigation is conducted and concluded in a free and fair manner without any element of prejudice for or again any stakeholder involved."
As far as facts of instant case are concerned, the application was moved by accused persons after filing of the charge-sheet and before the stage of framing of charges. Therefore, the application filed by accused persons is maintainable, as much as the Court itself also has power to exercise the jurisdiction under Section 91 CrPC to summon the required material, even if no application by accused persons is filed. Thus, in either way, directions issued by the trial Court in exercise of its powers under Section 91 CrPC cannot be faulted or can be said to have erred.
16. In the present case, it was incumbent upon the Investigating Officer to collect the mobile tower location of the complainant, of his mobile No. 9982671312 on 20.08.2019 at about 03:00 p.m. when the incident of murder was alleged to be occurred in his presence as stated by the complainant in the FIR. This is certainly relevant piece of evidence, having nexus with the issue. Such mobile tower location of complainant from the Vodafone Company to which, mobile number of complainant belongs, was not collected by the Investigating Officer or was not produced with the (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (14 of 16) [CRLMP-3842/2020] charge-sheet. Hence, accused persons moved application dated 28.01.2020 stating inter alia that the company maintains data for a period of about one year only, therefore, it is desirable to summon such mobile tower location of the complainant from the company to which mobile of complainant belongs i.e. Vodaphone company. Since, same is necessary and relevant piece of evidence in the present criminal case and by a lapse of a period of one year such date would obsolete/ deleted in the company record. Similarly, in respect of accused-Sakir Ali, in the light of allegation in the FIR that he opened firearm at about 03:00 p.m. on 20.08.2019, at the spot of incident of murder, whereas the plea of accused seems to be that accused-Sakir Ali was not present at spot at that point of time rather at that relevant point of time he was present in the ATM counter of SBI situated opposite to Police Line, Alwar, therefore, in order to strengthen the plea of alibi by accused persons, the CCTV footage from the ATM of SBI dated 20.08.2019, to prove the presence of accused-Sakir Ali there, was sought to be summoned. In this respect, it is stated in the application that the Bank has declined to provide the CCTV footage to them, without orders of the Court. Further, the accused persons indicated in the application that the criminal trial may take considerable time to reach at the stage of defence evidence and by that time, due to passage of time, the mobile tower location of the complainant and CCTV footage from ATM of SBI in respect of accused-Sakir Ali, may obsolete/ deleted, if not ordered to be collected/ summoned forthwith and saved. (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (15 of 16) [CRLMP-3842/2020]
17. Thus, in such factual backdrop of the present case and considering the nature of things, sought to be collected/ summoned, it was not justified for the trial Court to dismiss or defer the application filed by the accused person, merely on the ground that same can be considered only at the stage of defence evidence of accused persons and not prior thereto. More so, when the language of Section 91 CrPC itself does not put any bar for the accused person to invoke provision of Section 91 CrPC and as per ratio decidendi expounded by the Division Bench of Madhya Pradesh High Court in case of Umesh Tiwari (supra), the accused can invoke power and jurisdiction of Court, Section 91 CrPC after filing of the charge-sheet by the police before the Court. Thus, this Court does not find any illegality or jurisdictional error in exercising powers by the trial Court to direct to produce such material before the Court and the impugned order dated 27.02.2020 does not warrant any interference by this Court, within scope of Section 482 CrPC. The sustenance of impugned order neither leads to any illegality nor the impugned order is found, against mandate of law nor same leads to any miscarriage of justice. Undisputedly, the State/ prosecution has not challenged the impugned order, meaning thereby it is not averse to produce the material as directed by the learned trial Court.
18. As far as additional or alternative prayer made by learned senior counsel is concerned, same appears to be made hypothetically and merely on the basis of assumptions and presumptions. Assuming that, after passing the impugned order dated 27.02.2020, the material has been produced before the (Downloaded on 05/02/2024 at 08:44:35 PM) [2024:RJ-JP:5798] (16 of 16) [CRLMP-3842/2020] Court in four pen drives and the Court has directed to made available such pen drives to accused persons, it is open to the prosecution to raise an objection before the trial Court itself, about the stage of proceedings, as to when such material can be allowed to be put in evidence by accused persons, if same has not already come on record as yet during course of evidence. Thus, the additional/ alternative prayer made on behalf of complainant is preposterous and not acceptable by this Court.
19. As as result, with aforesaid discussion, the instant petition fails and is hereby dismissed.
20. Stay application and other pending application(s), if any, stand disposed of.
(SUDESH BANSAL), J RONAK/63 (Downloaded on 05/02/2024 at 08:44:35 PM) Powered by TCPDF (www.tcpdf.org)