Amandeep Chauhan vs State Of Uttarakhand
2022 Latest Caselaw 3858 UK

     HIGH COURT OF UTTARAKHAND
            AT NAINITAL

     Criminal Misc. Application No. 772 of
                     2021
                   (Under Section 482 of Cr.P.C.)
                               With
                   IA/2/2022 for Exemption Application
       IA/4/2022 for Miscellaneous Application with Counter Affidavit
                IA/5/2022 for Time Extension Application

Amandeep Chauhan                                       ...    Applicant
                                   Vs.
State of Uttarakhand                                          ...
Respondent

Advocate:    Mr. Lalit Sharma, Advocate, for the applicant.
             Mr. Atul Kumar Sah, Deputy Advocate General, along with
             Mrs. Mamta Joshi, Brief Holder, for the State


Hon'ble Sharad Kumar Sharma, J.

of 2019, State Vs. Amandeep Chauhan, is pending trial before the Court of Additional Sessions Judge, Dehradun, whereby the applicant has been tried for the offences under Sections 376 and 506 of IPC, which was having its birth from Case Crime No. 30 of 2017, which was registered at Police Station, Clement Town, district Dehradun.

2. Before parting with the judgment, this Court is of the view that certain dissection is required to made in order to consider the controversy in the light of the earlier remand which was made by the co-ordinate Bench of this Court vide its judgment dated 8th March 2021, as rendered in Criminal

Miscellaneous Application No. 344 of 2021, Amandeep Chauhan Vs. State of Uttarakhand and others.

3. When this Court was considering the issue, it was qua the order dated 1st February 2021, so far it related to an application Paper No. 30 kha, which was allowed by the learned trial Court, thereby directing to permit the applicant to cross examine the prosecutrix on the basis of the documents which had been filed along with the application paper No. 37 kha, with an alternative plea or to decide an application under Section 91 of CrPC, on its own merits, as per law. Accordingly, the co- ordinate Bench of this Court, vide its judgment dated 8th March 2021, had issued the following directions:-

"5. Considering the submissions advanced by the learned counsel for the parties, the order dated 01.02.2021 passed by learned Fast Track, Special Court/Additional District and Sessions Judge, Dehradun is hereby set-aside. The present criminal misc. application under Section 482 Cr.P.C. is disposed of with a liberty to the applicant to move a fresh well reasoned application before the trial court within two weeks from the date of production of certified copy of this order and thereafter the trial court shall consider the same and decide it on its own merits, as expeditiously as possible, preferably for a period of one month."

4. The co-ordinate Bench of this Court, while setting aside the impugned order therein, has left it open for the applicant to move a fresh application

before the learned trial Court for its consideration, for the purposes of production of documents. What is important herein is, that after the judgement of the co-ordinate Bench of this Court dated 8th March 2021, the applicant had filed paper No. 45(ka) on 29th March 2021, wherein, he has instead prayed for that in the light of the earlier application paper No. 39 (kha), which will automatically lose its relevance, since having not being a subject matter of consideration by the judgement rendered by the coordinate Bench of this Court, he filed afresh application, praying for cross examination of PW1, the relevant relief made in the application is extracted hereunder:-

**vr% Jheku th ls izkFkZuk gS fd mDr rF;ksa ds izdk"k esa i=koyh ij iwoZ esa dkxt la0 39[k @1 rk 39[k fM xzflr djrs gq,] [email protected];qDr dks mDr ds lEcU/k esa ihfM+r 1 PW1 ls izfrijh{kk djus gsrq vuqefr iznku djus dh d`ik djsaA**

5. In fact, prior to this application, which was submitted by the applicant after the judgement of the coordinate Bench of this Court on 8th March 2021, he had earlier filed an application under Section 91 of CrPC, being paper No. 40 (ka) on 8th March 2021, wherein it was in the said application, that the additional document was sought to be placed on record in relation to the call details made with Vipul son of Ved Prakash.

6. It becomes inevitable for this Court, to observe that this application paper No. 40(ka), was not the subject matter of controversy in the earlier judgement of the co-ordinate bench of this Court, as it was decided on 8th March 2021, and that judgement has to be read in context of an application decided by the learned trial Court, being paper No. 37 (kha). Hence, under the garb of an order dated 8th March 2021, the applicant cannot attempt and take an advantage to get an application paper No. 40 (ka) decided, which exclusively meant for getting the call details of Vipul son of Ved Prakash, which was an application preferred under Section 91 of CrPC, the existence of this application on records loses its significance, because it was not left open for the applicant to press this application which was preferred on 18th February 2021, prior to the judgement of the co- ordinate bench of this Court dated 8th March 2021.

7. Even so much so the subsequent application, which was filed by the applicant on 29th March 2021, was only for the purposes to permit the cross examination of PW1. This will not be the scope falling for consideration under Section 91 of the Code of Criminal Procedure. Section 91 of the Code of Criminal Procedure, exclusively confines to be the part of Chapter 7, to produce to compel the production of `things', Section 91 of CrPC is only

confined to where the liberty has been granted to the Court or the officer-in-charge of the Police Station, to consider the production of document or the other things, which are necessary for the purposes of trial, not for the purposes of cross examination.

8. The production of additional document is not a plea, which was raised by the applicant in his application filed on 29th March 2021, after the liberty granted by the co-ordinate Bench of this Court vide its judgement dated 8th March 2021. In that eventuality, where the application filed i.e. paper No. 45, was confined for the purposes of permitting the cross examination of PW1, it will not be a subject matter which would be falling within an ambit of Section 91 of the Code of Criminal Procedure and under the garb of the order dated 8th March 2021, passed by the co-ordinate bench of this Court, the applicant or the Court concerned cannot take the liberty to decide application paper No. 40 (ka), which stood instituted under Section 91 of CrPC, even prior to the judgement dated 8th March 2021, which was filed on 18th February 2021 and hence, under the camouflage of the judgement dated 8th March 2021, the application under Section 91 of CrPC, preferred prior in time, will not revive back to be decided by the learned trial Court.

9. Since the subsequent application which was filed by the applicant on 29th March 2021 was outside the ambit and scope of Section 91 of CrPC, the same cannot be treated as to be an application filed under Section 91 of CrPC, where a prayer was sought for permitting the cross examination of PW1 and not for the purposes of production of document or things, as contemplated under Section 91 of CrPC.

10. In that eventuality, the decision taken by the learned Sessions Court, by rejecting the application, by the impugned judgement dated 3rd April 2021, is absolutely justified, because paper No. 45 (ka) was never intended or prayed for production of a document and Paper No. 40 (ka), couldn't have been considered because that was not a directive issued by the co-ordinate Bench of this Court in its judgement dated 8th March 2021.

11. The learned counsel for the applicant, for the purposes of sustaining his argument about the scope of exercise of powers under Section 91 of CrPC, though it would not be applicable in the context of the application filed by him before the learned trial Court on 29th March 2021, if at all this judgment, as reported in 2015 (3) JCC 1874, Suresh Kalmadi Vs. CBI, if at all, it is to be considered, it could be only confined for

consideration of paper No. 40 (ka), which was an application instituted even prior to the decision of the co-ordinate Bench of this Court, which was not left open at all to be decided by the judgement of this Court, hence this judgement of Suresh Kalmadi (Supra), which deals with the impact of Section 91 will not be applicable in the circumstances of the present case, because here, the call details, which were sought to be summoned under Section 91 of CrPC, was in relation to the mobile number of one Ms. Jyoti Chhabra, which she was holding in the capacity of being a representative of the company and the said plea has to be read in the context of the observations made in para 23 of the judgment, which has been referred to by the learned counsel for the applicant.

12. Thus, the C482 Application is misconceived, and the same is dismissed.

(Sharad Kumar Sharma, J.) 01.12.2022 Mahinder/