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."
[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.
[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
[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.
[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:
[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
[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
[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
[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
[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
[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."
[2024:RJ-JP:5798] (12 of 16) [CRLMP-3842/2020]
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.
[2024:RJ-JP:5798] (13 of 16) [CRLMP-3842/2020]
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
[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.
[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
[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
Powered by TCPDF (www.tcpdf.org)
