Karnataka High Court

Mohammed Muddassir Kaleem vs National Investigating Agency on 26 July, 2023

Bench: Sreenivas Harish Kumar, G Basavaraja

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                                                         NC: 2023:KHC:25862-DB
                                                              WP No. 3205 of 2022




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 26TH DAY OF JULY, 2023

                                             PRESENT
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                   AND
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                          WRIT PETITION NO. 3205 OF 2022 (GM-RES)


                   Between:

                   Mohammed Muddassir Kaleem
                   S/o. Mohammed Kaleem Ahmed
                   Aged about 28 years
                   R/at No.401, 4th Floor,
                   Honey Enclave, Near Petrol Bunk
                   Shampur Road, Gandhinagar
                   K.G.Halli, Bengaluru 560045
                   Rep. by her Sister
                   Zeyba Kulsum
                   W/o. Mohammed Shadab
Digitally signed   (Petitioner is in JC)
by SRIDEVI S                                                           ...Petitioner
Location: HIGH     (By Sri Mohammed Tahir, Advocate)
COURT OF
KARNATAKA
                   And:

                   National Investigating Agency
                   Ministry of Home Affairs GOI
                   Hyderabad Branch
                   Rep. by Spl.P.P.,
                   Office at High Court Complex
                   Opp. to Vidhana Soudha
                   Bengaluru-560001
                                                                     ...Respondent
                   (By Sri P.Prasanna Kumar, Spl.Counsel)
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                                    NC: 2023:KHC:25862-DB
                                          WP No. 3205 of 2022




       This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India read with 482 of Criminal Procedure
Code, praying to-set aside the order dated 18.01.2022 present
at Annexure-F passed by the Hon'ble XLIX Additional City Civil
and Session Judge, (Special Court for Trial of NIA cases) CCH-
50 at Bengaluru in case No. SPL CC 141/2021 in which
petitioner is arrayed as Accused No.20, and direct the
respondent agency to present and supply the documents which
had been collected, recovered, gathered, obtained by the State
machinery i.e., K.G.Halli Police Station during the course of
investigation, which the respondent agency has referred to in
Annexure-C dated 03.11.2020 which are now present in the
custody of respondent agency and etc.

     This Writ Petition having been heard & reserved on
07.07.2023, coming on for pronouncement this day, Sreenivas
Harish Kumar J., pronounced the following:

                           ORDER

Accused No.20 in Spl.C.C.No.141/2021, on the file of

Special court for trial of NIA Cases, (CCH-50), Bengaluru

has preferred this writ petition under Articles 226 and 227

of the Constitution of India read with section 482 of Code

of Criminal Procedure (Cr.P.C.), challenging the order of

dismissing his application filed under section 91 of Cr.P.C.,

by the special court.

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2. We have heard Sri Mohammed Tahir, learned

counsel for the petitioner and Sri P.Prasanna Kumar,

learned special counsel for NIA.

3. The petitioner, in his application under Section 91

of Cr.P.C. sought a direction to NIA to produce the

voluntary statements of the accused persons and

statements of 27 police personnel and 24 public witnesses

recorded by the state police, the statements of protected

witnesses recorded before 3rd November 2020, and video

clipping shown to LW-52 while recording his statement.

The case in which the petitioner is accused No.20 pertains

to an incident of a large scale rioting and committing such

other crimes in and around Kadugondanahalli Police

Station on 11.08.2020. The genesis of the incident is said

to be a derogatory remark made against Prophet

Mohammed on the facebook by one Naveen. FIR in Crime

No.229/2020 was initially registered at K.G.Halli Police

Station for the offences punishable under Sections 143,

147, 148, 353, 332, 333, 427, 436 read with section 149

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of IPC and section 4 of Prevention of Damage to Public

Property Act, 1984. The investigation was subsequently

taken over by NIA and filed charge sheet.

4. The grievance of the petitioner is that NIA has not

produced the voluntary statements of the accused

recorded by the state police, the statements of 27 police

officers and 24 public witnesses recorded by the state

police, statement of protected witnesses recorded prior to

03.11.2020 and video clipping shown to LW-52. All these

materials are intentionally concealed to suppress the true

nature and exact facts of the incident, and therefore it is

necessary that the NIA is to be directed to produce them.

5. Sri Mohammed Tahir, learned counsel for the

petitioner, arguing on lines with the contents of the

application, referred to a report submitted by the Special

Public Prosecutor relating progress in the investigation to

submit that in part II of the report, there is a reference to

all the statements of the witnesses and the accused, as

mentioned in section 91 application and suppression of the

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same by NIA has seriously prejudiced the interest of the

petitioner. He submitted that the special court has erred

in dismissing the application and therefore the writ petition

is to be allowed.

6. But it is the argument of Sri P.Prasanna Kumar

that after NIA took over investigation, it proceeded

independently and filed the charge sheet based on

materials collected by it. The allegations made by the

petitioner in his application under section 91 of Cr.P.C. are

false; NIA produced all the materials collected by it along

with the charge sheet. Referring to a decision of the

Hon'ble Supreme Court in the case of State of Orissa Vs.

Debendra Nath Padhi [(2005) 1 SCC 568], he argued

that section 91 of Cr.P.C. cannot be invoked by an accused

for production of documents before framing of charges. If

in this background, the special court dismissed the

application there is no illegality in the impugned order and

therefore writ petition deserves dismissal.

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7. Keeping in view the points of arguments, we hold

that though in part II of the report as to progress in the

investigation submitted by the special public prosecutor,

there is a reference to voluntary disclosures made by the

accused persons, recording of the statements of 27 police

officers and other 24 witnesses etc., it appears that those

voluntary disclosures, and statements of police officers

and witnesses were not part of independent investigation

undertaken by the NIA. And in case they were made part

of investigation conducted by NIA, the accused must have

been provided with those materials along with the charge

sheet. If they are not enclosures to the charge sheet, the

petitioner cannot claim their production, Section 173(6) of

Cr.P.C. provides that a police officer may request the

magistrate not to grant copy of any statement or any part

of it to the accused if he is of the opinion that any part of

the statement is not relevant or its disclosure is not

essential in the interest of justice or inexpedient in the

public interest. In that event according to the judgment of

the Supreme Court in the case of Criminal Trials

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Guidelines Regarding Inadequacies And

Deficiencies, In Re Vs. State of Andhra Pradesh and

others (2021) 10 SCC 598, a list of the documents the

copies of which are not furnished to the accused has to be

given to him. Here it is not the case of the petitioner that

the statements and video clippings were the part of the

charge sheet filed by NIA; he states that they were part of

investigation conducted by the State Police prior to NIA

taking over investigation. And he requires the same at a

stage prior to framing of the charge. It is held by the

Supreme Court in the case of Debendra Nath Padhi

(Supra) that

25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer

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is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an

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officer in charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.

8. Sri. Mohammad Tahir has brought to our notice an

order passed by learned Single Judge of this court in

W.P.No.19012/2021 where a direction was given to NIA to

furnish documents as sought for by the petitioners therein.

We find that the judgment of Supreme Court in Debendra

Nath Padhi was not brought to the notice of learned

single judge. We could have certainly directed the NIA to

provide a list of documents and statements collected by

the State Police if they had been made part of charge

sheet filed by NIA, but investigation made by NIA was

independent. Therefore the Special Court is justified in

rejecting the application and therefore we dismiss the writ