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2019 DIGILAW 2365 (RAJ)

Ajit Singh v. State

2019-09-04

PUSHPENDRA SINGH BHATI

body2019
ORDER : Pushpendra Singh Bhati, J. 1. Petitioner has preferred the present misc. petition under Section 482 of Cr.P.C. claiming the following relief:- "It is, therefore, prayed that this criminal misc. petition may kindly be allowed and the order dated 26.07.2019 passed by learned Additional Session Judge, Gharsana and the order dated 20.11.2018 passed by learned Judicial Magistrate Gharsana, may kindly be declared illegal, and may kindly be quashed and set aside and the police authorities, may kindly be directed to submit the statements as prayed in the application filed U/s 91 Cr.P.C." 2. Brief facts of this case, as noticed by this Court, are that the complainant respondent No. 2 filed a complaint under Section 154 of Cr.P.C. before the S.P. Sri Ganganagar which culminated into FIR bearing No. 463/2015 being registered at Police Station Gharsana for the offences under Sections 420, 467, 468, 471 and 120-B of IPC. 3. The bone of contention in the present matter is that the petitioner moved an application on 15.07.2017 under Section 91 of Cr.P.C. for summoning the statements of the petitioner which was taken by the then investigating officer Gopi Ram. Learned court below has dismissed the application and the said dismissal order was affirmed by the learned Revisional Court on 26.07.2019. 4. Learned counsel for the petitioner submits that on a bare reading of the impugned order, it is clear that the statement recorded under Section 161 of Cr.P.C. of Daljeet Singh, Anil Kumar and Pankaj Belana are being sought whereas learned court below has denied the same on the ground that the allegations made regarding the statement in question about threatening being used by the investigating officer to get them signed, is incorrect, as the petitioner never complained against such statement being forcibly retracted. 5. Learned counsel for the petitioner further submits that once it is an admitted position that statement of Daljeet Singh, Anil Kumar and Pankaj Belana under Section 161 of Cr.P.C. were taken then the respondents were duty bound to provide a copy of the same to the petitioner even if the same were not produced alongwith charge-sheet. 6. Learned counsel for the petitioner has relied upon the judgment rendered by this Hon'ble Court in Jagnandan Singh Vs. State of Rajasthan reported in 2008 (1) Cr.L.R. (Raj. 8. 6. Learned counsel for the petitioner has relied upon the judgment rendered by this Hon'ble Court in Jagnandan Singh Vs. State of Rajasthan reported in 2008 (1) Cr.L.R. (Raj. 8. The said judgment reads as under:- "This revision petition is preferred to challenge the order dated 4.10.2007 whereby learned Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases, Sriganganagar rejecting the application preferred on behalf of the petitioner as per provisions of Section 91 Cr.P.C. The contention of counsel for the petitioner that by order impugned a denial is made to supply the copies of the documents recorded under Section 161 Cr.P.C. during investigation and that is in violation of the law laid down by this Court in the case of Bhika Ram v. State of Rajasthan 1998 RCC 570) and Bheru Singh & Ors. v. State of Rajasthan, 2003(2) RCC 909). I have perused the order impugned and also heard counsel for the parties. The petitioner by the application claimed to supply the copies of the statements recorded under Section 161 Cr.P.C. while making investigation. The denial to supply was made by the order impugned on the count that the prosecution was not relying on those statements. This Court in the case of Bhika Ram (supra) while dealing with the same issue held that "it is conceivable that the one or more of these persons who were examined under Section 161, Cr.P.C. but who are not proposed to be cited as prosecution witnesses might be the persons acquainted with the facts and circumstances of the case and their statements may be relevant for the purpose of deciding the question whether the accused is guilty or is innocent. In such cases, if a material witness is with held by the prosecution a question may arise whether adverse inference should be drawn against the prosecution for withholding a material witness. The trial Court may, therefore, direct the prosecution to produce the copies of the statements of those persons who appear to be acquainted with the facts and circumstances of the case or, in other words, who appear to be the material witnesses but have not been cited as prosecution witnesses". The same position was reiterated by this Court in the case of Bheru Singh (supra) in following terms:- "8. The same position was reiterated by this Court in the case of Bheru Singh (supra) in following terms:- "8. So far as supplying of copy of statement recorded under Section 161 Cr.P.C. is concerned, no doubt the police is bound to place before the Court all relevant evidence which enables the court to decide the matter and thus, as a rule the accused are entitled to copies of the statements recorded under Section 161 Cr.P.C. For that case of Devender Kaur Vs. State of Rajasthan of this Court reported in RLR 1990 (2) 629 may be referred to. 9. Not only this, the prosecution should also supply those statements recorded under section 161 Cr.P.C. on which they have not placed reliance, but have been demanded by the accused. For that case of Pradeep Kumar and ors. Vs. State of Rajasthan reported in 1994 (3) Crimes 859 may be referred to. In other words, the accused are entitled to those statements recorded under Section 161 Cr.P.C. which have not been filed with the charge-sheet. It may further be mentioned here that recording statements under Section 161 Cr.P.C. and simply enquiring some facts from the witnesses are of two different nature." In view of the law laid down by this Court in the cases of Bheru Singh and Bhika Ram (supra) it is quite clear that an accused is entitled to get copies of those statements recorded under Section 161 Cr.P.C. may those have been filed with the charge sheet or not. In view of whatever discussed above, this revision petition deserves acceptance, therefore, the same is allowed. The order dated 4.10.2007 passed by Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases, Sriganganagar is quashed and the learned Special Judge is directed to consider the application preferred by the petitioner afresh in light of the law discussed above." 7. Learned Public Prosecutor however, is not in a position to refute that the statement in question are not available in the record of the respondents. 8. Learned counsel for the complainant opposes the submission made on behalf of the petitioner. 9. Learned Public Prosecutor however, is not in a position to refute that the statement in question are not available in the record of the respondents. 8. Learned counsel for the complainant opposes the submission made on behalf of the petitioner. 9. After hearing learned counsel for the parties and going through the record of the case, this Court finds that the learned court below erred in law in refusing to summon the statements of the petitioners as well as of Daljeet Singh, Anil Kumar and Pankaj Belana as recorded by the investigating officer, only on the ground that the part pertaining to forcible recording of the statements was not corroborated by any kind of complaint being made by these persons. The precedent law as cited above absolutely applies in the present circumstances and thus, it is a fit case where the powers under Section 91 of Cr.P.C. ought to have been exercised by the learned court below by calling for the statement rendered under Section 161 of Cr.P.C. by Daljeet Singh, Anil Kumar and Pankaj Belana. 10. In light of the aforesaid observations and the precedent law cited above, the present misc. petition is allowed and the order dated 26.07.2019 passed by learned Additional Session Judge, Gharsana and the order dated 20.11.2018 passed by learned Judicial Magistrate Gharsana are quashed and set aside and the respondents are directed to submit the statement as prayed in the application under Section 91 of Cr.P.C.