Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 720 (MP)

Shriram Sharma v. State of M. P.

2012-07-17

G.D.SAXENA

body2012
ORDER G. D. Saxena, J. 1. This revision petition under section 397/401 of the Code of Criminal Procedure 1973 is directed against both the orders dated 16th and 21st February 2012 recorded in Sessions Case No. 71/2012, by the First Additional Sessions Judge, Gwalior firstly thereby rejecting the application preferred by the petitioners under section 91 of Cr.P.C. and secondly after hearing the prosecution and accused, the charges were framed against all of the accused for commission of offence punishable under sections 365,366 506 Part-II of I.P.C. A charge for commission of offence punishable under section 376(1) of Cr.P.C. was also framed against accused-petitioner Shriram. 2. In short, relevant facts for adjudication of the matter are that on the day of incident, all the accused abducted knowingly or had reason to belief that the victim will be compelled to marry with accused Shriram or intercourse against her will or her wishes and after abduction confined her when she was wearing ornaments of gold and having cash of Rs. 20.000/-, in a secret place. It is alleged that thereafter, at Shivpuri, accused Shriram committed rape on her. It is further stated that all the accused criminally intimidated her to cause death of her brother and father. They also caused injuries by throwing Acid on her body. On the report lodged, an investigation was commenced. The victim was recovered and thereafter charge-sheet was filed. On committal, the trial is under progress. 3. The contention of the learned counsel appearing for the petitioners/accused is that all the accused are closely related to each other and are residing at different places. They are engaged in their separate business. It is contended that the victim went with accused No.1 as per her free will and lived with him in a different place. She willfully married to him. Their marriage was duly registered before the authorities at Gaziabad U.P. After recovery of the victim, she gave her statement before the I.O. on 23rd April 2011. It is submitted that the statement recorded on 23rd April 2011 of the victim was withheld by the I.O. and he did not file the same at the time of filing charge-sheet before the Court. It is contended that after 23rd April 2011, the victim was handed over in a custody to her uncle. It is submitted that the statement recorded on 23rd April 2011 of the victim was withheld by the I.O. and he did not file the same at the time of filing charge-sheet before the Court. It is contended that after 23rd April 2011, the victim was handed over in a custody to her uncle. At later stage of the investigation, the I.O. recorded her another statement which was against the accused and filed with the charge-sheet in the Court. It is further submitted that during trial, the petitioners/accused filed the application before the Court-below under section 91 of Cr.P.C. seeking direction to file all the documents collected during investigation as well as the statement of the prosecutrix dated 23rd April, 2011 recorded earlier by the I.O., which were necessary to prove the innocence of the accused before the Court, but their prayer was rejected by the learned trial Judge and the charges have been framed, hence, this revision. 4. Per contra, the learned Panel Lawyer appearing for the respondent/State opposed the contention of the petitioners and by supporting the impugned order passed by the trial Judge contended that the order has been passed after due consideration on the documents filed alongwith the charge-sheet and after hearing the counsel for both the sides. Accordingly, it is prayed that the revision may be dismissed. 5. Heard the learned counsel appearing on behalf of the petitioners/accused as well as the learned Panel Lawyer for the respondent/State. Also perused the petition and all the documents available with case diary. 6. At this juncture, it would be useful to reproduce section 91 Cr.P.C, which reads as is under:- 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 Bankers’ 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. 7. In the case of State of Orissa Vs. Debendra Nath Padhi ( AIR 2005 SC 359 ) = 2004 AIR SCW 6813, the Hon. Apex Court held:- “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 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. 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 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. 27. In so far as section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial Court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us herein before. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of sections 227 and 228 in Chapter 18 and sections 239 and 240 in Chapter 19.” 8. On reading of section 162 of Cr.P.C. and section 145 of the Evidence Act and bearing in mind the object of the said sections, it is clear that an accused in a criminal trial has the right to make use of the previous statement of a witness including the statements recorded by the Investigating agency during the course of an investigation for the purpose of establishing a contradiction in the evidence of a witness or to discredit the witness. But the question for consideration is, how does the accused exercise this right with reference to a previous statement of a witness which is recorded by the I.O. in that case ?. This right, certainly does not flow from section 162 of Cr.P.C. read with section 145 of the Evidence Act nor does it flow from section 172 of Cr.P.C., nor is the accused is entitled to these previous statements under section 207 of the Code. But the accused cannot be denied of his limited benefit of using the said previous statements given during the course of another investigation. The answer to this question lies in section 91(1) of Cr. P.C. The language of section 91 of the Code is much wider than the language of sections 172, 161 and 162 of Cr.P.C. If that be so and if the Court comes to the conclusion that production of such document is necessary or desirable, then the Court is entitled to summon the document under section 91 of the Code. 9. It is well-settled law that the case diary maintained under section 172 of Cr.P.C. is a document as contemplated under section 91(1) of Cr.P.C. If the Court comes to the conclusion that production of such a document is necessary or desirable, then the Court is entitled to summon the document under section 91 of the Code for the purpose of using the statements made in the diary for contradicting a witness. 10. 10. Now coming to the factual aspects of the present case, it appears that in the course of inquiry on the report lodged by the father of victim about missing of the prosecutrix, after her recovery from petitioner-accused Shriram, her statement was recorded on 23rd April 2011 and thereafter missing inquiry was closed. Later on, under section 156(3) of Cr.P.C., the F.I.R. was lodged and investigation was conducted. In the charge-sheet papers filed before the criminal Court, the statements recorded by the Inquiry Officer with respect to inquiry of missing person were not filed and the copy of the statement of victim was not delivered to the accused. When the victim is called by the prosecution in the trial Court and her statement is to be reduced into writing, her statement recorded by the inquiry-officer/investigation to prove his defence for purpose of contradiction/omission may be used by the accused. Other statements of witnesses under section 233 (3) of Cr.P.C. recorded by the Inquiry Officer may be called by the accused at the time of defence. 11. In view of the aforesaid dictum laid down by the Apex Court, there is no embargo for the Court to summon the documents and the statement made before the police by the prosecutrix, at earlier point of time, if the Court trying the case considers that production of such documents are necessary and desirable for the purpose of trial, in exercise of its power under section 91 of Cr.P.C. 12. In this view of the matter, in the opinion of this Court, the previous documents pertaining to the trial in hand could be directed to be filed by the Investing Agency under section 91 of the Code. 13. As the case is at the initial stage, no harm or prejudice will be caused to the prosecution, if the said documents are called for. Thus, by considering the matter from any angle, I am of the view that the said documents are necessary for the purposes of proper adjudication of the matter and to arrive at just and proper conclusion in the trial. The aforesaid aspect of the matter is not considered by the trial Court in proper perspective, while rejecting the application filed on behalf of the accused-petitioners herein. The aforesaid aspect of the matter is not considered by the trial Court in proper perspective, while rejecting the application filed on behalf of the accused-petitioners herein. Absolutely, no proper reasons are assigned by the trial Court to conclude as to how the documents to be called for are irrelevant for the purpose of deciding this case. Under such circumstances, this Court is of the considered opinion that the trial Court has erred in rejecting the application filed on behalf of the accused-petitioners under section 91 of Cr.P.C. 14. Consequently, the orders in question are liable to be quashed. Hence, the following order is made. 15. Revision is allowed. The impugned orders dated 16th and 21st February, 2012 are set aside. The application filed on behalf of the accused-petitioners under section 91 of Cr.P.C. is allowed. It is directed that the learned trial Court shall summon the documents mentioned in the application filed by the petitioners through the Investigating Agency and thereafter proceed with the matter in accordance with law, without being influenced by any of the observations made during the course of this order.