Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 41 (ALL)

Ramdhari v. State of U. P.

2019-01-04

SIDDHARTH

body2019
JUDGMENT : SIDDHARTH, J. 1. Heard Sri Krishna Dutt Tiwari, learned Counsel for the applicants, learned AGA for the State and Sri Mukesh Kumar Pandey, learned Counsel for the opposite party No.2. 2. This application has been filed under Section 482 Cr.P.C. praying for quashing the order dated 24.7.2018 passed by Additional District Judge/Fast Track Court No.1, Kushi Nagar at Padrauna in S.T. No. 456 of 2005 (State Vs. Ramayan @ Alkha and others), arising out of Case Crime No. 196 of 2001, under Section 396 I.P.C., Police Station Kotwali Padrauna, District Kushi Nagar. 3. Brief facts of the case are that the opposite party No.2 lodged the first information report alleging that on 22.5.2001 at 4:30 a.m., eight unknown persons entered his house and caused injuries to his brother and father. The Investigating Officer investigated the case and submitted the charge-sheet against the applicants under Section 396 IPC. The trial court, after committal, registered S.T. No. 456 of 2005 and framed charges on 16.10.2008 under Section 396 I.P.C. and thereafter, the statements of ten prosecution witnesses were recorded. The applicants filed an application dated 05.11.2018 under Sections 233 (3) and 311 Cr.P.C. before the trial court praying that they may be permitted to file a video C.D. and PW-1, Kashi Das and P.W-6, Parsu Ram may be recalled for cross-examination regarding answer to certain questions framed in the application. Learned trial court has rejected the aforesaid application by its order dated 24.7.2018 stating that PW-1 and PW-6 have already been cross-examined by the defence in detail and they are not required to be recalled. Regarding C.D. produced alongwith application, the court has recorded the finding that it has been filed at the advance stage of trial. There is no certificate of being genuine C.D. The incident regarding which trial is proceeding, is related to the year 2001 and C.D. is alleged to have been received by the accuseds-applicants on 17.11.2017. Only for the purpose of delaying the trial, it has been filed, which is not required to be accepted. The stage of 313 Cr.P.C. is yet to come and, therefore, the prayer of the applicants cannot be accepted at the present stage. 4. The learned counsel for the applicants has relied upon the judgment in the case of Shekhar Tewari Vs. The stage of 313 Cr.P.C. is yet to come and, therefore, the prayer of the applicants cannot be accepted at the present stage. 4. The learned counsel for the applicants has relied upon the judgment in the case of Shekhar Tewari Vs. State of U.P. and another, 2011 (72) ACC 761, and has argued that the object of Section 311 Cr.P.C. is to bring on record, the evidence not only from the point of view of accuseds and the prosecution, but from the point of view of order of society, fair trial is paramount consideration. He has placed reliance upon paragraph Nos. 13, 14 and 15 of the aforesaid judgment and regarding his argument that the C.D. produced by the applicants was required to be taken on record. He has relied upon paragraph Nos. 21, 22 and 23:- “13. Section 311 of the Code, which is extracted below: 311. Power to summon material witness, or examine person present-Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 14. The scope of Section 311 of the Code has been discussed by the Hon'ble Supreme Court in the case of Hanuman Ram v. State of Rajasthan and Ors. MANU/SC/8107/2008 : (2008)15 SCC 652 , in which the case of Mishrilal v. State of M.P. has been considered. In that very case the Hon'ble Supreme Court has held that once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. 15. In that very case the Hon'ble Supreme Court has held that once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. 15. By discussing the scope of Section 311 of the Code the Hon'ble Supreme Court held that there is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. “21. In the light of the aforesaid facts and circumstances of the case as well as law laid down as above, I am of the view that fair trial is a paramount consideration and the case must be tried fairly after collecting all the relevant evidence for a just decision. Though there is a direction of the Hon'ble Supreme Court to expedite the trial, but it does not mean to ignore the material evidence, which is necessary for just decision. After enactment of the Information Technology Act, 2000 all the documents including electronic records are included under the definition of Evidence Act. No doubt, there is contrary statements of P.W. 10 and D.W. 11. D.W. 11 has identified her as the same lady, who was interviewed by him. It is the duty of the court to get all relevant evidence for the purpose of the fair trial. I am of the view that after testing her voice as well as her photographs by the laboratory, which is permissible under the Indian Evidence Act, there would be more relevant evidence for a decision of learned trial Judge. The ground of delay, which is exceptional clause, is not so much important to consider it as to ignore the relevant evidence. 22. Under Section 165 of the Indian Evidence Act, the Judges have ample powers to order for production of documents or things in order to discover or to obtain proper proof of relevant facts. 23. The ground of delay, which is exceptional clause, is not so much important to consider it as to ignore the relevant evidence. 22. Under Section 165 of the Indian Evidence Act, the Judges have ample powers to order for production of documents or things in order to discover or to obtain proper proof of relevant facts. 23. The provision of Section 165 of Indian Evidence Act is extracted below: 165-Judge's Power to put questions or order production.-The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or things; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 -131, both inclusive if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall be dispense with primary evidence of any document, except in the cases hereinbefore excepted”. 5. Learned AGA for the State and learned counsel for opposite party No.2 have submitted that the applicants have not been able to prove, who has made the alleged video C.D. of the incident nor any certificate as per Section 65 B of the Evidence Act has been proved. Regarding recall of witnesses, it has been submitted that they have already been extensively examined. 6. Learned counsel for the opposite party No.2 has placed reliance on the Apex Court's judgment in the case of State of Haryana Vs. Ram Mehar and other Etc. Etc., Criminal Appeal Nos. 805 – 806 of 2016, and has placed reliance upon paragraph No.9:- “9. 6. Learned counsel for the opposite party No.2 has placed reliance on the Apex Court's judgment in the case of State of Haryana Vs. Ram Mehar and other Etc. Etc., Criminal Appeal Nos. 805 – 806 of 2016, and has placed reliance upon paragraph No.9:- “9. Nothing has been explained as to what are the left out questions and how the questions already put to the said witnesses created inroad into the defence of the said accused. In para 3 of the application, it is stated that the manner and circumstances as to how the incident took place and further the questions pertaining to weapons used and the injuries to the said witnesses and to others are certain other questions, which are to be put to them. A perusal of the statements of the aforesaid four witnesses clearly reveal that they have been cross examined at length and there is nothing that defence counsel faltered by not putting relevant questions to them. Putting it differently it is not a case of giving walk over by the defence to the prosecution witnesses by not properly conducting the cross examination. It is rightly argued by learned PP that if the present application is allowed then there will be no end of moving such applications and who knows that another changed defence counsel may come up with similar sort of application stating that the previous defence counsel inadvertently could not put material questions. It may be recalled that the present applicants are in custody but that does not mean that they cannot move the application to delay the trial which has already been delayed considerably. The defence has already availed numerous opportunities. This Court in order to ensure the fair trial allowed the successive applications moved by the defence to examine the witnesses to support their respective pleas. An old adage of a fair trial to accused does not mean that this principle is to be applied in favour of accused alone but this concept will take in its fold the fairness of trial to the victim as well as to the society. The court being neutral agency is expected to be fair to both the parties and its duty is also to ensure that the process of law is not abused by either of them for extraneous reasons. The court being neutral agency is expected to be fair to both the parties and its duty is also to ensure that the process of law is not abused by either of them for extraneous reasons. The speedy trial is essence of justice but such like applications like the present one should not come in the way of delivery of doing complete and expeditious justice to both the parties.” 7. Before considering the rival submission, a look at Section 65 (B) of the Evidence Act is necessary: “Section 65B in The Indian Evidence Act, 1872 1[65B. Admissibility of electronic records.— (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:— (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether— (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,— (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.” 8. The Apex court in the case of Anvar P.V. Vs. P.K. Basheer and other (2015) 1 SCC (Cri.) 24, has held that under Section 65 (B) (4) of the Evidence At, if if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It has been further held in Anvar P.V. (Supra) that the evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Special law will always prevail over the general law. It appears, the court omitted to take note of Section 59 and 65A dealing with the admissibility of electronic record. Special law will always prevail over the general law. It appears, the court omitted to take note of Section 59 and 65A dealing with the admissibility of electronic record. Section 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Section 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case, (2005) 11 SCC 600 , does not lays down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. 9. Regarding the rejection of the prayer of the applicants under Section 311 Cr.P.C., it is found that the court below has recorded the finding that the questions sought to be put to the PW-1 and PW-6 have been stated in the application, but what is the basis of asking such questions from them has not been mentioned in the application. The Apex Court in the case of State of Haryana (Supra) has held in paragraph No. 38 as follows:- “At this juncture, we think it apt to state that the exercise of power Under Section 311 Code of Criminal Procedure can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance.” 10. After considering the ration of the judgment of the Apex Court in the preset case, it is found that PW-1 and PW-6 have been extensively cross-examined by the defence and the court below has recorded a clear finding that the defence has all relevant questions form the witnesses at this stage and therefore, no ground for their recall is made out. 11. The exercise of power under Section 311 Cr.P.C. is exercised only to find out the truth and not to fill in lacuna in the prosecution case. The vide discretionary power under Section 311 Cr.P.C. is to be exercised judicially and not arbitrarily. Only when the court is satisfied in every respect that it is essential to examine the witness to arrive at just decision of the case, it should recall the witnesses. Exigency of situation, fair play and good sense should be the safeguard. 12. In view of the above consideration, no interference is called for in the impugned order dated 24.7.2018 passed by the court below. 13. The application is accordingly dismissed. 14. However, it is open for the applicants to move application, complying with the provisions of Section 65-B (4) of the Evidence Act at the state of their defence, regarding the C.D. produced.