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2016 DIGILAW 2025 (GUJ)

SAMSUDDIN DADABHAI JAKHRA v. STATE OF GUJARAT

2016-09-08

S.G.SHAH

body2016
JUDGMENT : S.G. SHAH, J. 1. Rule. Learned APP waives service of notice of rule on behalf of respondent – State. 2. Heard learned senior counsel Mr. Yogesh Lakhani for learned advocate Mr. Jay M. Thakkar for the petitioners and learned APP Mr. K.P. Raval for the respondent – State. Perused the record. 3. The petitioners herein are accused before the Sessions Court of Una in Sessions Case No. 5 of 2013, who are facing charges under Sections 302, 143, 147, 148, 149, 120B, 504 and 506(II) of the Indian Penal Code read with Section 25(1) of the Arms Act, so also Section 135 of the Bombay Police Act pursuant to Una Police Station I – C.R. No. 110 of 2012 dated 29.01.2005. In FIR itself, it is disclosed that offence has been committed by as many as 16 persons amongst which, names of 9 persons were disclosed in the FIR contending that there are 7 persons, who can be identified. Amongst those 9 persons whose names are disclosed in the FIR, present petitioner No.1 is shown as accused No.1 whereas petitioner No.2 as accused No.2 and petitioner No.3 as accused No. 8 in the FIR; though their numbers as an accused in the charge sheet are different being accused Nos. 7, 6 and 8 respectively. Therefore, it becomes clear that the complainant is not aware about all the accused and naturally some of the accused are to be identified and disclosed by the investigating agency after investigation. Whereas charge sheet is filed against 13 accused and when one accused is shown as minor in column 2 of the charge sheet and two other accused are shown as additional accused against whom investigation was pending till date of filing of charge sheet No. 199 of 2012 on 25.10.2012. 2. Whereas charge sheet is filed against 13 accused and when one accused is shown as minor in column 2 of the charge sheet and two other accused are shown as additional accused against whom investigation was pending till date of filing of charge sheet No. 199 of 2012 on 25.10.2012. 2. The case and defence of the present petitioners is regarding their physical absence at the place and time of incident for which FIR and charge sheet is filed and, therefore, present petitioners as well as accused No. 13 as per charge sheet namely Ismail @ Rahim Dadabhai has preferred an application at Exhibit 151 before the Sessions Court on 20.01.2016 contending that pursuant to their defence, which may be called as alibi, the investigation officer has inquired about their presence at different places like hospital and hotels in Surat and collected several evidence; details of which is listed in para 6 of the application, wherein there is list of many as 30 (Sr. Nos. 2 to 31 in the list) documentary evidence and information regarding statements recorded by the police during such investigation, and thereby requested the Sessions Court to direct the investigating agency to produce all such documentary evidence before the Court and to provide its copies both to the public prosecutor and petitioner – accused. Such application is preferred under Section 91 of the Code of Criminal Procedure. Therefore, basically this application is only for production of certain documents and other evidence collected by the investigating agency during investigation. When application is preferred under Section 91 of the Code of Criminal Procedure it would be appropriate to recollect the text of such section which reads as 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, or the Bankers' Books Evidence Act, 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.” 2.1 The bare reading of such section makes it clear that the trial Court has got ample powers and jurisdiction to issue summons or written order to such person in whose possession or power such documents is believed to be and require him to attend and produce it, or to only produce it at the time and place said in the summons or order. Sub Section (2) of Section 91 makes it clear that any person required in this section merely to produce documents or other things or 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. Therefore, basically the application at Exhibit 151 is not for a witness summons, so as to examine the witness, to prove any fact in favour of the accused, but it is merely an application for production of certain documents. Therefore, only requirement to pass an order under Section 91 is limited to the satisfaction of the Court to ascertain that whether the production of such documents or thing is necessary or desirable for the purpose of any investigation or inquiry, trial or other proceedings under Code by or before such Court. Thereby when there is no prayer to call any witness to be examined, the only prayer in the application is to direct the investigating officer to produce the documents which are listed in para 6 of the application. Thereby when there is no prayer to call any witness to be examined, the only prayer in the application is to direct the investigating officer to produce the documents which are listed in para 6 of the application. 3.1 Therefore, to ascertain that whether such documents are necessary or desirable for the purpose of trial, if we verify the list it becomes clear that those documents are regarding physical presence of present petitioner before all such other institutions like hospital and hotels, details of which is disclosed in such list with date and reason for presence at such place i.e. for treatment of family member. Thereby if petitioner or any of their family member is admitted in hospital at Surat and if during such hospitalization if petitioners or their family members had stayed in Surat either in the hospital or hotel, details of which is collected by the Investigating Officer then all such documentary evidence are certainly necessary and desirable to ascertain and find out the truth during trial. Similarly, statement of doctors and hotel supervisor, if recorded during such investigation then those statements are also very much relevant, necessary and desirable though that may be in favour of the accused. 4. The law is well settled, whereby it is quite clear that the investigating agency has not to act as a litigant but it has to act as an independent agency to find out the truth and to help the Court to arrive at the truth. In simple words, it is quite clear and obvious that function and duties of the investigating agency is not limited or restricted for the purpose to secure and confirm the conviction of the accused, but to find out the truth and place the truth before the Court which has to determine that whether accused has committed any offence or not. It would be different story if there is no material available with the prosecution regarding defence of the accused. In that case, burden is upon the petitioners – accused to prove their presence at other place, i.e. defence of alibi. 5. It would be different story if there is no material available with the prosecution regarding defence of the accused. In that case, burden is upon the petitioners – accused to prove their presence at other place, i.e. defence of alibi. 5. However, when investigating agency has to find out the involvement petitioners – accused investigated certain issues and gathered certain material either in the form of statement of concerned persons or in the form of documentary evidence to ascertain certain facts, then those evidence and statements are certainly desirable and necessary for the purpose of trial. Though such evidence may not be form part of the charge sheet as evidence by the prosecution, when accused ask to produce it to prove his innocence he has right to call for production of such evidence which he needs to be proved in accordance with law. At the same time accused is also taking risk in as much as once such evidence is produced and proved against him, he would have no option and excuse but to admit it. 5.1 Therefore, there is no reason for the trial Court to deny the request of production of such documents by the impugned order when petitioner have prayed for it. The prayer is only for production and such documents are yet to be proved by the accused in due course. 6. If we peruse the impugned order dated 29.06.2016 below exhibit 151 certainly though there is no request for examining any witness for proving any such documents by the present petitioners – accused, the trial Court has recorded in para 5 of the order that burden to prove alibi rests upon the accused and, therefore accused cannot press to examine any witness as a witness of prosecution and on such ground application has been rejected. 7. Suffice to record and it is confirmed by the learned senior counsel for the petitioners that they have never prayed for examining any witness to prove their defence of alibi but application at Exhibit 151 is only for the limited purpose i.e. for production of documentary evidence which are already within the possession and control of the investing officer, so as to enable the accused to prove those documents to prove their defence of alibi. Therefore, petitioner are aware that mere production of such documents may not prove their case of alibi and after production of such documents, they have to prove it in accordance with law and, therefore, the reasoning of the Sessions Court for rejecting such application has resulted into material irregularity, which results into illegality. 8. The other reason assigned by the Sessions Court for rejecting such application is to the effect when the Investigating officer has not accepted the defence of alibi during investigation, such defence is not permissible and thereby when investigating officer has deemed it fit not to include those statements and evidence in charge sheet, now there cannot be an order to produce it on record, which is otherwise in favour of the accused. Here also the Sessions Court has committed grave error and it is nothing but lack of basic concept of jurisprudence that the function of the investigating agency and the Court is to find out the truth and nothing but the truth and that neither Investigating agency nor public prosecutor or even the Court are meant only for convicting the accused as and when charge sheet is filed against someone. It is really surprising to record that even when such concept is quite clear, the criminal trial has been dragged in deciding such application at Exhibit 151 almost for 6 months and more than 100 pages have been produced before the Court in the form of written arguments of both the sides. 9. One more fact is quite necessary to recollect here that before filing of such application at Exhibit 151 before the Sessions Court, one of the accused, who is though petitioner in such application at Exhibit 151 and not petitioner in this revision petition, namely Ismail @ Rahim Dadabhai has, in fact, preferred one Special Criminal Application No.990 of 2015 for similar direction. Wherein on 17.12.2015, the Co-Ordinate bench of this Court has passed following order; “It is true that an accused can put forward the plea of alibi in his defence. It is also true that the police owes a duty to look into such plea and investigate in that regard. The status of the case today is that charge-sheet has been filed and the trial is pending before the Sessions Court. The offence is one of murder. It is also true that the police owes a duty to look into such plea and investigate in that regard. The status of the case today is that charge-sheet has been filed and the trial is pending before the Sessions Court. The offence is one of murder. I may only say that if the petitioner is dissatisfied with the investigation carried out by the Investigating Officer, it would be open for him to pray for further investigation in accordance with law, or at best, in the course of the trial, he may request the trial Court under Section 91 of the Code of Criminal Procedure, 1973, to ask the police officer concerned to produce the relevant materials so far as the alibi part is concerned. It would also be open for the petitioner to substantiate his case of alibi before the trial Court by leading cogent and convincing evidence in that regard. It would also be open for him to examine defence witnesses, if any, for making good his case of alibi.” 10. Thereby though now facts are very much clear before the trial Court that petitioners are entitled to request the trial Court, under Section 91 of the Code to ask the police officer concerned to produce the relevant material so far as alibi part is concerned and that thereafter it would be open for the accused to substantiate their case of alibi before the trial Court by leading cogent and convincing evidence by examining the defence witness, if any. When public prosecution has filed a reply at exhibit 168, instead of quating entire para of above order only one line is disclosed before the trial Court and thereby practically the Sessions Court has instead of referring entire order even from internet dragged itself as per the submissions by the public prosecutor which resulted into irregularity which amounts to illegality and, therefore, there is no option but to interfere in such impugned order in this revisional jurisdiction since the impugned judgment has resulted into grave injustice to the petitioner. 11. Learned APP Mr. Raval has supported the impugned order relying upon the reply and written arguments by the public prosecutor before the trial Court. 11. Learned APP Mr. Raval has supported the impugned order relying upon the reply and written arguments by the public prosecutor before the trial Court. However, in view of what is disclosed herein above, I do not see any substance in such submissions, since all such submissions are very well on record I do not wish to reproduce the same when the Sessions Court has failed to appreciate the issue in its proper perception as disclosed herein above. 12. Reference to few decision would be relevant at this stage:- (1) Judgment and order dated 28.07.2016 in Criminal Revision Application No. 379 of 2016 between Chintan Rajnikant Patel vs. State of Gujarat, wherein this Court has observed as under: - “The trial Court has failed to realize that providing all relevant documents, based upon which FIR is filed, is basic requirement of criminal jurisprudence, but in some cases, when accused comes forward with a specific averment that there are other certain documents, may be in the form of statement of the complainant and some witnesses by other police station and if at all any of such statements is throwing light on the issue to arrive at any specific conclusion and to find out the truth, such other evidence is to be considered and treated as an evidence by the accused and in that case, it would be necessary to extend all reasonable opportunity to the accused to adduce his evidence irrespective of any other issue regarding reliance being placed by the prosecution upon such evidence or not. It seems that the trial Court has simply denied to provide some documents only on the ground that when the complainant and prosecution have not relied upon such statements, they are not required to be provided to the accused. Therefore, even at the cost of repetition, let it be made clear that if some documents are not relied upon by the prosecution, then they may not form part of the charge-sheet, but the accused has got absolute right to call upon such statement and to refer it as his defense. However, in such cases, it cannot be ignored that production of any such document itself would not or may not be sufficient evidence in favour of the accused, but in a given set of circumstances, he has to prove it in accordance with law. However, in such cases, it cannot be ignored that production of any such document itself would not or may not be sufficient evidence in favour of the accused, but in a given set of circumstances, he has to prove it in accordance with law. For the purpose, therefore, if any such statement is relevant and made by either the complainant or any witness named in the charge-sheet, then to avoid to recall such witness after production of such statement, generally it would be desirable and appropriate, both for the accused and also for the Court to call for such documents on record so that the complainant and witness may be able to depose at one go on all such issues during their cross-examination. So far as contradiction of witness in the box with his previous statement is concerned, there also law is well settled that witness can be contradicted only if his previous statement is available on record and only after affording him opportunity to refer such statement. Therefore, even time for calling such statement to be produced on record is certainly before recording of evidence of such witness and not restricted to the stage where accused is called upon to prove his case. However, as already stated hereinabove, the production itself may not be sufficient and if necessary, accused may have to call upon some witness to prove such statements, which are otherwise not signed by the person in whose name such statements are recorded and, therefore, in absence of proper, cogent and reliable evidence regarding proof of any such previous statements, those statements may not be considered as evidence, but as aforesaid, if there is any other previous statement of any person, then calling upon such statement to be produced on record, cannot be denied. When any such document/statement can be called upon by different means including witness summons for production of document or search order to find out certain documents and thereby, if any such documents are brought on record, then their copies are required to be given to both the sides or at least they are entitled to such copies and, therefore, only because the petitioner has asked for copies of certain documents, it cannot be said that his request can be thrown out for the simple reason that otherwise the petitioner can pray for witness summons to produce such document on record.” (2) 2014 (3) GLR 2739 between State of Gujarat vs. Fulesh @ Fulo Amthabhai Desai and others, wherein this Court has taken care of an many as 15 previous judgments on the subject and gist of such judgments are summarized in para 15 of such reported case and over-all scrutiny of all such citations makes it clear that there is no rule of thumb to hold that the accused has no right whatsoever to call for the production of certain documents and information either to disprove the prosecution case or to prove his innocence. Some of the citations referred by the petitioner is practically relating to the production of documents at pre-trial stage i.e., before framing charges; whereas in case on hand, when the trial has not only started, but several witnesses are examined, it cannot be said that to challenge the veracity of the witnesses or to prove certain facts which are otherwise connected with such witnesses, but not disclosed or produced with the charge-sheet by the investigating agency, such documents cannot be allowed to be called for and produced on record at the behest of the accused. 13. It cannot be ignored that some of the judgments disclosed in such reported case were cited before the Sessions Court, but the Sessions Court has failed to appreciate those judgment. 14. In view of above, revision application is allowed. Thereby the impugned order is quashed and set aside, which results into allowing application at exhibit 151, thereby, the investigating and prosecuting agency shall produce all documents as prayed for in application at Exhibit 151 on record of the Court, whereby copy of such documents would be required to be provided to the accused also. Thereby the impugned order is quashed and set aside, which results into allowing application at exhibit 151, thereby, the investigating and prosecuting agency shall produce all documents as prayed for in application at Exhibit 151 on record of the Court, whereby copy of such documents would be required to be provided to the accused also. However, such production only should not be treated as proof of content of such documents and thereby petitioner accused has to prove the same in accordance with law. Thus, production of such documents would be treated as production only of documents in defense by the accused and thereby, in given set of circumstances it could be used against the accused also. Interim relief shall stand vacated. Rule is made absolute to the aforesaid extent. (Rule is made absolute)