Ac. Sudevananda Avadhuta vs Central Bureau Of Investigation
2009 Latest Caselaw 4230 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. Rev. P. No. 482/2009

                                              Reserved on : 04.09.2009
                                           Date of Decision : 21.10.2009

Ac. Sudevananda Avadhuta                                ......Petitioner
                        Through:                 Mr. Arvind Kumar, Adv.

                                     Versus

Central Bureau of Investigation                          ...... Respondent
                          Through:               Mr. Vikas Pahwa,
                                                 Standing Counsel for CBI

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.      Whether Reporters of local papers can be
        allowed to see the judgment?                         NO
2.      To be referred to the Reporter or not ?              NO
3.      Whether the judgment should be reported
        in the Digest ?                                      NO

V.K. SHALI, J.

1. This is a revision petition filed by the petitioner against the

order dated 18th July, 2009 passed by Sh. A. K. Chawla,

the learned Additional District & Sessions Judge,

Karkardooma Courts, Delhi. By virtue of the said order

the learned Additional District & Sessions Judge has

disposed of the two applications dated 21st January, 2008

and 11th July, 2009 filed on behalf of the

petitioner/accused praying therein that voice sample of

CW-9 Arun Kumar Mishra be recorded and secondly his

voice be transferred from the cassette to the CD form.

2. Briefly stated the facts leading to the filing of the present

revision petition are that on 2nd January, 1975, it is alleged

that a bomb was hurled and blasted at a public meeting

addressed by the then Union Railway Minister late Sh. Lalit

Narain Mishra who was injured and later on succumbed to

these injuries. The charge sheet was filed by the CBI on

12th November, 1975 under Sections

120B/302/307/324/326/34 IPC read with sections 4/5 of

Indian Explosive Substance Act.

3. The prosecution is alleged to have concluded its evidence

on 16th April, 1986. An application was filed by the

petitioner under Section 311 Cr.P.C. for the purpose of

recalling/ re-examining PWs-1, 2, 4 to 7, 14, 15, 24, 29

and 11 directing witnesses to be produced as Court

witnesses. It may be pertinent here to mention that the

prosecution has examined more than 100 witnesses and

closed its evidence on 16th April, 1986. The learned

Sessions Judge disallowed the application of the petitioner

for summoning the aforesaid witnesses as Court witnesses

apart from two persons Mr.Arun Kumar Mishra and Mr.

Arun Kumar Thakur.

4. The petitioner feeling aggrieved by the impugned order

preferred a revision petition before this Court against the

order of the learned Trial Court. The said revision petition

was disposed of by the High Court on 26th February, 1992

setting aside the impugned order dated 21st August,1986

by observing that the request of the petitioner shall be

considered and decided after recording the statements of

the petitioner and other accused persons under 313 Cr.P.C.

The petitioner and the other accused persons will have a

right to adduce evidence in their defence.

5. The petitioner still feeling aggrieved by the said order

preferred a petition under Section 482 Cr.P.C. before the

High Court which was disposed of vide order dated 17th

November, 1992 wherein the said petition was partly

allowed by directing the learned Additional Sessions Judge

to decide as to whether he would like to examine all or any

of the persons as Court witnesses at any stage after the

statements of the accused persons under 313 Cr.P.C. are

recorded.

6. The statements of the accused persons were recorded from

10th January, 1994 to 17th December,2004 that is almost

for a decade. Vide order dated 13th May, 2005 the then

learned Additional Sessions Judge Sh. S. N. Dhingra

summoned the prosecution witnesses 3,5,12,14,15,

16,31,34,75 and 114. After recording of the statements of

these witnesses as Court witnesses the petitioner adduced

his defence and examined as many as 35 defence

witnesses.

7. It is after examination of these 35 defence witnesses that

these two applications were filed. One application was for

taking voice sample of CW-9 Arun Kumar Mishra and the

other was for transferring the so called recording of CW-9

with the Jailor from audio tape to CD.

8. So far as the voice sample of CW-9 Arun Kumar Mishra is

concerned, it is alleged that it has become necessary to

obtain his voice sample as he has given a contrary

statement while being examined as a witness with regard to

his voice in the tape recorded conversation between him

and the Jailor. The learned Additional Sessions Judge

agreed that there are variations/improvements and

contradiction in the testimony of CW-9 but as regard the

value to be attached to the testimony of CW-9, the Court

observed that the question of appreciation of evidence will

be decided at an appropriate stage. Accordingly, the

learned Additional Sessions Judge observed that as the

matter is more than 34 years old, therefore, there was no

ground for re-summoning of CW-9 for the purpose of

further cross-examination. Even otherwise on merits it was

contended that the recording of conversation between CW-9

and Jailor could not be held to be conclusive proof and the

present applications have been filed only to delay the

disposal of the trial which is already pending for the last 34

years.

9. I have heard the learned counsel for the parties and

perused the record.

10. The question which arises for consideration in the instant

case is the two fold request made by the petitioners in the

two separate applications. In the first application dated

21st January, 2008 the petitioner seeks recording of voice of

CW-9 Arun Kumar Mishra. The learned counsel for the

petitioner has cited Central Bureau of Investigation Vs.

Abdul Karim Ladsab Telgi & Ors. 2005 Cri.L.J. 2868 to

urge that the recording of the evidence of a person by way

of audio recording or asking him to furnish his voice

sample could not be deemed to be violative of constitutional

guarantee under Article 20 (3) of the Constitution of India.

It has been observed that this could not be treated as

testimonial compulsion.

11. This would be applicable only in a case when offence is

alleged to have been committed by the accused. This is a

protection granted to an accused but not to a witness. In

the instant case, voice sample of CW-9 Arun Kumar Mishra

is sought, who is a witness and therefore, this judgment is

not applicable.

12. The question involved in the instant case is what is the

purpose of obtaining the voice sample of the petitioner

today when the trial is pending for the last more than 34

years. Even if the voice sample of CW-9 is obtained it

cannot be fruitfully compared with the voice of the witness

namely Arun Kumar Mishra as by sheer lapse of time there

is bound to be changes in the voice which was recorded

earlier and the voice which is sought to be recorded now.

This seems to be only a ploy which is sought to be resorted

by the petitioner with a view to delay the disposal of the

trial which admittedly is pending for the last more than 34

years, therefore, the petitioner cannot be permitted to

obtain the voice sample of CW-9 Arun Kumar Mishra.

Similarly, the prayer of the petitioner to have voice

recording of CW-9 Arun Kumar Mishra transferred to the

CD is also bereft of any merit. This Court fails to

appreciate as to how the transfer of the voice from the tape

to the CD is going to help the petitioner when much of the

case will have based on the ocular or circumstantial

evidence.

13. I am of the considered opinion that the present application

is actuated only to delay the disposal of the trial which is

pending for the last 34 years. The learned Trial Judge has

very elaborately and analytically considered the

submissions of the petitioner and passed a reasoned order.

I do not find any illegality, impropriety or incorrectness in

the order of the learned Additional Sessions Judge and

accordingly the application is rejected.

V.K. SHALI, J.

October 21, 2009 KP