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2019 DIGILAW 404 (ORI)

Trilochan Khora v. State of Orissa

2019-06-17

S.K.SAHOO

body2019
JUDGMENT : S. K. SAHOO, J. 1. This is an application under section 482 of the Code of Criminal Procedure filed by the petitioner Trilochan Khora to quash the impugned order dated 20.08.2018 passed by the learned Special Judge, Koraput, Jeypore in T.R. Case No.16 of 2018 in which the petition filed by the petitioner under section 91 of Cr.P.C. praying to direct the investigating officer for consideration of the C.C.T.V. footage installed in front of the house of the petitioner was rejected on the ground that the document or thing necessary or desirable for the defence of the accused cannot be entertained at the stage of instigation. 2. As it appears Boriguma P.S. Case No.68 of 2018 was instituted on 07.04.2018 on the first information report submitted by Karunakar Dharua, Sub-Inspector of Police of Boriguma police station on the accusation that on that day at about 5.30 a.m. the petitioner along with co-accused persons were carrying commercial quantity of ganja to the tune of 927.400 kgs. in a truck bearing registration no. CG-04-JB-4699 on NH 26 road near Petrol Pump, Jayantigiri which was seized. The petitioner was arrested on the spot. On such F.I.R., a case under sections 20(b)(ii)(C)/29 of the N.D.P.S. Act was registered. 3. During investigation of the case, a petition was filed by the petitioner under section 91 of Cr.P.C. for a direction to the investigating officer to consider the C.C.T.V. footage installed in front of the house of the petitioner. It is stated in the petition that on the date of occurrence i.e. on 07.04.2018 the petitioner was in his house till 8.30 a.m. which would be clear from the close circuit camera which was installed in front of the house of the petitioner situated in Down Street (Harijan Street) of village Umuri and therefore, the case of the prosecution that at about 5.30 a.m. on that day the petitioner was carrying contraband ganja in a truck and arrested at the spot is a fabricated story. 4. On such petition, the prosecution filed its objection and the learned Special Judge, Koraput, Jeypore considering the submission made by the learned counsel for the respective parties and taking into account the provision under section 91 of Cr.P.C. and the ratio laid down by the Hon'ble Supreme Court in the case of State of Orissa -Vrs.- Debendra Nath Padhi, (2005) 30 OCR 177, rejected the petition. In the said decision, the Hon'ble Court held as follows:- "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. 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." 5. In case of Manohar Lal Sharma -Vrs.- Principal Secretary, (2014) AIR SC 666, it is held that in the criminal justice system, the investigation of an offence is the domain of the police. Section 91 presupposes that when the document is not produced, process may be initiated to compel production thereof." 5. In case of Manohar Lal Sharma -Vrs.- Principal Secretary, (2014) AIR SC 666, it is held that in the criminal justice system, the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The Courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the Court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the Court may intervene to protect the personal and/or property rights of the citizens. 6. In this case, the plea which has been taken in the petition filed under section 91 of Cr.P.C. by the petitioner is basically relates to plea of alibi. Law is well settled that the accused has to prove such plea by adducing cogent and satisfactory evidence at the stage of trial and such a plea must be proved with absolute certainty so as to completely exclude the presence of the person concerned at the time when and the place where the incident took place. The accused cannot insist the prosecuting agency to collect materials for him to prove such plea. 7. It is stated at the bar that in the meantime, the investigation has been completed and charge sheet has already been submitted. 8. The accused cannot insist the prosecuting agency to collect materials for him to prove such plea. 7. It is stated at the bar that in the meantime, the investigation has been completed and charge sheet has already been submitted. 8. Since the petitioner would get ample opportunity to adduce evidence in support the plea of alibi if taken during the stage of trial and the learned trial Court is expected to consider the same in accordance with law and there is lack of material to doubt the bonafide conduct of investigating officer in investigating the case, I find no illegality or impropriety in the impugned order passed by the learned Special Judge, Koraput, Jeypore. 9. Therefore, I am not inclined to invoke my inherent power to interfere with the impugned order. Accordingly, the CRLMC application being devoid of merits, stands dismissed.