Chandgiram vs State
2012 Latest Caselaw 1972 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI
+                           Crl. Rev. P. 148/2012


                                                 Date of Decision: 22.03.2012

CHANDGIRAM                                                  ...... Petitioner
                            Through:      Mr. Bharat Dubey, Advocate

                                     Versus
STATE                                                 ...... Respondent
                            Through:      Ms.Fizani Husain, APP for State
                                          Mr. Raman Sahney & Mr. Shitiz K.
                                          Chopra, Advocates for complainant

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

1. The present revision petition has been preferred by the petitioner under Section 397/401 Cr.P.C. read with Section 482 Cr.P.C., assailing the order of the learned Trial Court dated 26.11.2011 whereby two applications under Section 91 Cr.P.C. and one application under Section 294 Cr.P.C. moved by the petitioner for summoning of some documents were dismissed.

2. The petitioner herein was working as a security guard at the Masih Automobiles Petrol Pump, Anand Vihar and is charged along with other co- accused persons for offences under Section 302/506/323/325/34 IPC read with Section 27 Arms Act and the Trial Court proceedings are pending in the Court of Sh. P.S. Teji, learned ASJ. The allegations against the petitioner are that on 30.09.2009 at around 11.00 P.M., four people including the deceased,

Himanshu Sharma came at the petrol pump in their Honda City car and the deceased started urinating on the wall of the petrol pump. Thereafter, Mukesh Lal, who was at the relevant time the incharge of Masih Automobiles Petrol Pump, Anand Vihar and the other staff entered into an altercation with the four of them. According to the testimony of Vineet Sharma, who was one of the persons in the Honda City car, the petitioner fired at the deceased, Himanshu Sharma at the instance of Mukesh Lal resulting in his death.

3. The case before the learned ASJ is at the stage of recording of prosecution evidence. Out of the total of 53 witnesses, 24 witness have been examined. In the application filed by the petitioner, the DD entries dated 30.09.2009 and 01.10.2009, along with DD entries of the Crime Team receiving information and the incident report are sought to summoned. Further, the malkhana register, the mortuary register, log book of PCR vehicle and call details with Cell ID of various mobile numbers 9811498020, 9810986899, 9899649902, 9953576329, 9871156664 and 9873188306 are also sought to be summoned. In addition to that, the statements given by one of the eye witness to the TV Channel contained in a CD is also sought to be produced by the petitioner for the purpose of cross-examination of prosecution witnesses. Further a prayer is also made for correction of typographical error in the statement of PW1 Mr. Anklesh dated 19.5.2011 and 4.8.2011.

4. The impugned order has been assailed mainly on the ground that the production of the documents mentioned in the applications by the petitioner are essential for his defence and in declining to summon the above mentioned

documents, the learned ASJ has deprived the petitioner of his right of confronting the witnesses in cross-examination and to prove his innocence.

5. Per contra, the learned APP for the State has opposed the petitions on the ground that the documents summoned by the petitioner are not required at the stage of prosecution evidence and can be sought and proved by him at the stage of his defence and that the applications under Section 91 and 294 Cr.P.C. were filed just to delay the proceedings of the Court and were rightly dismissed by the learned ASJ.

6. Section 91 Cr.P.C. envisages the production of any document or other thing which is required or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code, if the Court is satisfied that such documents are essential and required at the relevant stage of proceedings. For allowing the application for production of documents or other things under Section 91 Cr.P.C., the Court has to deal with the issue of their necessity and relevancy and also whether such documents are required at the stage when they are sought to be summoned by the applicant. Summoning of documents cannot be allowed on a mere asking by the applicant or as a matter of routine. Section 294 Cr.PC provided for admission/ denial of the documents filed in the Court by the prosecution or the accused. It also provided that Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed and that the court may, in its discretion, require such signature to be proved.

7. From the perusal of application under Section 91 Cr.PC made by the petitioner, it would be seen that the documents which are sought to be produced under Section 91 are for the purpose of defence. This was in fact also so specifically stated by the petitioner in his application under Section 91 that these documents were required for defence. However, during the arguments it was submitted by learned counsel for the petitioner that these documents are required for the purpose of cross examination of prosecution witnesses. In my view this was a vague submission which was made. The prosecution witnesses had already been examined and cross examined. In any case, no relevancy of any of those documents and the purpose of putting them in cross examination to any prosecution witness, have been spelt out. Merely by saying that these documents were required for the purpose of cross examination was not enough. It is trite that the documents required for the purpose of defence cannot be summoned under Section 91 Cr.PC. From the nature of documents sought to be produced, as mentioned in the application, it would be seen that the petitioner was undertaking a roving inquiry into the work of crime team during the relevant time of the incident. The call details of three friends of the deceased which are sought to be produced are also nothing but trying to enter into the privacy of those persons and the relevancy or necessity of which was not understandable. The documents as mentioned in the application under Section 91, if at all were required by the petitioner for his defence, as was stated in the said application, the same could be summoned or produced by him while leading defence evidence.

8. With regard to the production of statement of eye witness made in the TV Channel stored in a CD, it was submitted by learned counsel for the

petitioner that the same was required for the purpose of confronting the eye witness. It is noted that the name of the said eye witness who allegedly made a statement in the TV Channel has not been mentioned. In any case, the statement, if any, made by an eye witness to the TV Channel after the incident could not be said to be authentic without the same having been so proved. The authenticity of the same was not tested and so no eye witness could be confronted with such a statement. The authenticity of the said CD remains anyone's guess. If at all the same was required to be proved by the petitioner, it was for him to prove the same as per law in his defence evidence. In the absence of there being any proof with regard to the authenticity of the same, the said documents cannot be put to any witness for the purpose of confrontation or admission or denial.

9. Further the plea that there were some typographical correction in the statement of PW1, was also completely vague. The evidence of PW1 was recorded by the Court and the same was read over and admitted by PW1, who did not point out any error in his statement. It has not been pointed out as to what were the typographical errors according to the petitioner.

10. The Apex Court has repeatedly cautioned against undertaking a roving inquiry into the pros and cons of the case by weighing the evidence or collecting the material during the course of trial. Having examined all the details of the documents sought to be produced by the petitioner, I do not see any relevancy or necessity of any of the record sought to be produced at the stage of prosecution evidence.

11. In view of my foregoing decision, I am of the considered view that this

petition is nothing but a frivolous one and is another design of delaying the trial and to waste the precious time of the Court. The petition is hereby dismissed with costs of Rs.10,000/- to be deposited with the Delhi High Court Legal Services Committee. Ordered accordingly.

M.L. MEHTA (JUDGE) March 22, 2012 ss/skw/rd