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2014 DIGILAW 879 (RAJ)

Asharam @ Ashumal v. State of Rajasthan

2014-04-09

VIJAY BISHNOI

body2014
JUDGMENT 1. - This Criminal Misc. Petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 5.3.2014 passed by the Sessions Judge, District Jodhpur (for short the Trial Court hereinafter) in Sessions Case No. 152/2013, whereby the application filed by the accused-petitioner under Section 91 Cr.P.C. for summoning the statements of witnesses namely Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena recorded under Section 161 Cr.P.C. by the police, has been dismissed. 2. The accused-petitioner is facing trial for the offence punishable under Sections 342, 354-A, 370(4), 376(2)(f), 376(d), 506, 509, 120 I.P.C. and Sections 5(f)/6, 5(g)/6 and Section 7/8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and Section 23 of Juvenile Justice Act, 2000. He has moved an application before the Trial Court and demanded that the statements recorded by the police under Section 161 Cr.P.C. of the witnesses namely Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena be summoned. The said application has been dismissed by the Trial Court vide impugned order, therefore, the petitioner has filed this Criminal Misc. Petition while claiming the following reliefs:- (i) The application filed under Section 91 Cr.P.C. by the petitioner may be allowed and the order dated 5.3.2014 may be set aside. (ii) That the Investigation Agency may be directed to produce 161 Cr.P.C. statements of Smt. Geeta, Miss Manju, Miss Shilpa and Miss Reena and supply copy of them to the petitioner. (iii) Any other appropriate order or direction which may be deemed just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner. 3. Learned Counsel for the petitioner has submitted that the petitioner is facing trial for serious offences and, therefore, the statements recorded by the police under Section 161 Cr.P.C. of Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena are required to be summoned by the Court so that the accused-petitioner may have a proper opportunity to prepare his defence. It is contended that the application filed by the petitioner for summoning the statements of above named witnesses has wrongly been rejected by the Trial Court without giving any cogent reasons. Manju, Varsha Rastogi, Shilpa and Reena are required to be summoned by the Court so that the accused-petitioner may have a proper opportunity to prepare his defence. It is contended that the application filed by the petitioner for summoning the statements of above named witnesses has wrongly been rejected by the Trial Court without giving any cogent reasons. The learned Counsel for the petitioner has argued that the accused person has right to defend his life and personal liberty and in order to defend, it is imperative that all the evidence, which are required to defend, should be examined by the Court. It is contended by the learned Counsel for the petitioner that the statements recorded by the police under Section 161 Cr.P.C. of Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena are necessary and desirable for the purpose of trial, however, the Trial Court has rejected the said application without considering the necessity and desirability of the said statements 4. The learned Counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court in State of Kerala v. Babu & Ors., AIR 1999 SC 2161 ; V.K. Sasikala v. State Rep. By Superintendent of Police, 2013 Crl.L.J. 177 and of this Court in Shiv Ram & Anr. v. The State of Rajasthan, 1991(1) WLN 143 ; Chatra v. State of Rajasthan, 1999(3) WLC 642 ; Neelesh Jain v. State of Rajasthan, 2006(2) WLC 214 ; Jaikam Khan v. State of Rajasthan, 2009(1) RLW Raj. 376 and Atul Kumar Dixit v. State of Rajasthan, 2013(1) RLW Raj. 39 and has argued that the right of fair trial cannot be denied to the accused and his right for putting his defence during the trial cannot be curtailed. It is also contended by the learned Counsel for the petitioner that the statements recorded by the police of the above named witnesses during the investigation are required to be summoned in the interest of justice. The learned Counsel for the petitioner has, therefore, prayed that the impugned order passed by the Trial Court may kindly be quashed and set aside and the relief prayed for in this Criminal Misc. Petition may kindly be granted. 5. Per contra, Mr. Rajesh Panwar, learned Additional Advocate General appearing on behalf of the State and Mr. The learned Counsel for the petitioner has, therefore, prayed that the impugned order passed by the Trial Court may kindly be quashed and set aside and the relief prayed for in this Criminal Misc. Petition may kindly be granted. 5. Per contra, Mr. Rajesh Panwar, learned Additional Advocate General appearing on behalf of the State and Mr. P.C. Solanki, learned Counsel for the complainant have argued that the Trial Court has not committed any error in rejecting the application filed on behalf of the accused-petitioner for summoning the statements of Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena recorded by the police under Section 161 Cr.P.C. It is contended that the petitioner has failed to satisfy the Trial Court that the production of the statements of above named witnesses is necessary and desirable for the purpose of trial and, therefore, the Trial Court has not committed any error in rejecting the application filed by the petitioner. It is also contended by learned Counsel for the respondent State and complainant that the statements recorded by the police under Section 161 Cr.P.C. of Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena have not been relied upon by prosecution while filing the charge-sheet against the accused and, therefore, the request of the petitioner for summoning the said statements is not liable to be entertained. The learned Counsel for the respondents have further argued that the application filed by the petitioner for summoning of the documents is vague and it does not give any reason that why the statements of above named witnesses are required for the defence and, therefore, the Trial Court has not committed any illegality in rejecting the same. 6. Heard learned Counsel for rival parties and perused the impugned order as well as the material placed on record. 7. While dismissing the application filed by the accused-petitioner, the learned Trial Court after taking into consideration the various decisions of this Court has held that the Court can order for supplying copies of statements of those witnesses, whose statements have been recorded by the police, but the names of those persons have not been included in the list of witnesses, if the Court feels that those persons are material witnesses and they can be examined as per the provisions of Section 311 Cr.P.C. and 165 of Evidence Act. In such cases, the copies of the statements of such witnesses recorded under Section 161 Cr.P.C. can be supplied to the accused persons so that the accused may think over for producing the said persons in defence or may request the Court to take adverse inference against the prosecution for withholding the material witnesses. The learned Trial Court has further observed that in the present case the evidence of prosecution is to be started and first of all the prosecution has to produce his evidence on which it relies and at this stage, it cannot be decided that the persons whose statements were recorded by the police under Section 161 Cr.P.C. but not mentioned as witnesses by prosecution are material witnesses and they are required to be examined during the trial. The learned Trial Court has further observed that whether the persons whose statements were recorded by the police during the course of investigation but not relied while filing charge-sheet, are material witnesses or not can only be considered after completion of the prosecution evidence. After observing this, the learned Trial Court has rejected the application of the petitioner at that stage, however, kept it open for the accused-petitioner to move fresh application after completion of prosecution evidence, if it so required and if any such application is preferred, the same will be decided in accordance with law after hearing the parties. 8. After going through the impugned order, this Court is of the opinion that the learned Trial Court has not committed any illegality in rejecting the application filed by the petitioner for summoning the statements of Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena recorded by the police under Section 161 Cr.P.C. during the course of investigation because at present the prosecution has not relied upon those statements while filing charge sheet against the petitioner. Whether those witnesses are material witnesses or not or whether the prosecution has withheld the evidence of the said witnesses with ulterior motives, are the questions which can only be taken into consideration by the Trial Court after completion of the evidence of the prosecution. 9. Apart from that the accused petitioner has filed the application under Section 91 Cr.P.C. for summoning statements of those witnesses recorded under Section 161 Cr.P.C. on which the prosecution has not placed any reliance while filing charge sheet against the accused petitioner. 9. Apart from that the accused petitioner has filed the application under Section 91 Cr.P.C. for summoning statements of those witnesses recorded under Section 161 Cr.P.C. on which the prosecution has not placed any reliance while filing charge sheet against the accused petitioner. Section 91 of the Cr.P.C. reads as under : "91. Summons to produce document or other thing - (l) 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 of 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." Section 91 empowers the Court to summon any document or thing which it deems "necessary or desirable" for the purpose of any inquiry or trial. If an accused requests the Court for summoning of some documents, he or she has to demonstrate before the Court that summoning of those documents is necessary or desirable for just decision of the case. It is for the Court to consider any objection raised by the prosecution about the summoning of the those documents and if the Court finds that the applicants have failed to demonstrate the necessity or desirability for summoning of the said documents, it should reject the application. While deciding the said request made on behalf of the accused, the Court must perform the balancing act between the interest of the individual and of the society. 10. While deciding the said request made on behalf of the accused, the Court must perform the balancing act between the interest of the individual and of the society. 10. From bare reading of the application filed on behalf of the petitioner, it is clear that the petitioner has failed to state that why the statements of witnesses namely Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena recorded by the police under Section 161 Cr.P.C. during investigation are necessary and desirable for the just decision of the case. The application filed by the petitioner before the Trial Court is reproduced hereunder:VARNACULAR MATTER OMMITED 11. The aforesaid application merely states a fact that during the course of investigation, the police has recorded statements of Smt. Geeta, Ms. Manju, Varsha Rastogi, Shilpa and Reena under Section 161 Cr.P.C. and they should be summoned. In the application, it has nowhere been stated that for what purpose, the petitioner wants to summon the statements of those witnesses. 12. It is for the defence to clearly state the reasons for summoning the documents. The defence has to demonstrate the issues, which they want to raise or they want to create, while seeking summoning of the documents. It is for the accused-persons to make out a strong case for summoning of those documents, however, from bare reading of the application filed by the petitioners, there is no hesitation in holding that the application is vague and the petitioners have clearly failed to demonstrate before the Trial Court that the documents sought to be summoned are "necessary or desirable" for the trial. 13. In view of the aforesaid discussions, this Court does not find any illegality in the impugned order. Hence, the instant Criminal Misc. Petition filed by the petitioners under Section 482 Cr.P.C. is dismissed.Stay petition also stands dismissed.Application allowed. *******