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Gujarat High Court · body

2019 DIGILAW 43 (GUJ)

NAEEM ARIF RAMODIA v. STATE OF GUJARAT

2019-01-22

K.M.THAKER, V.P.PATEL

body2019
JUDGMENT V.P. PATEL, J. 1. In this Appeal, the controversy involved is whether present applicant (accused before the trial court) has right to production of document / register by the witness, who is under cross-examination at the instance of accused defence and whether the order by trial court, whereby the trial court reject the application is incorrect and the demand of the accused, is permissible. 2. The Appellant / Original Accused has filed this Appeal under Section 21 of the National Investigation Agency Act, 2008 (hereinafter referred to as "the Act") against the order dated 13.11.2018 on Application below Exh.55 in Special Case No. 2 of 2017 passed by the learned Special Judge (NIA), Ahmedabad. In this Appeal, the Appellant has claimed the main relief as under: "The Hon Court may be pleased to quash and set aside the impugned judgment and order dated 13.11.2018 passed by the learned Special Judge (NIA), Ahmedabad on Application Exh.55 in Special Case No.2 of 2017 and further be pleased to grant the application Exh.55 as prayed for, in the interest of justice;" 3. Facts of the Case: The facts of the case briefly summarized are that the Appellant was arrested in connection with the FIR lodged at ATS Police Station, Gujarat at Ahmedabad bearing No. I-CR No. 1/2017 for the offences punishable under Sections 120B, 120A and 125 of the Indian Penal Code, Sections 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 as well as under Section 5 of the Explosive Substances Act on 26.2.2017. Thereafter on 8.6.2017, the National Investigating Agency (hereinafter referred to as "the NIA") had taken over the investigation from ATS Police Station, Ahmedabad and submitted a fresh FIR before the Special Court on the same set of allegations of ATS FIR, which was registered as FIR No. RC-09/2017 NIA on 25.5.2017. 4. After completion of the investigation, the NIA has filed the charge sheet before the Special Court. The same is registered as NIA Special Case No. 2/2017. The charge was framed by the leaned Special Judge and the trial has been commenced. The learned Special Judge has started to examine PW-7 at Exh.53. During the cross-examination of the witness, the defence Advocate filed an Application Exh. 55 stating the witness is required to produce the relevant register maintained by the witness. The charge was framed by the leaned Special Judge and the trial has been commenced. The learned Special Judge has started to examine PW-7 at Exh.53. During the cross-examination of the witness, the defence Advocate filed an Application Exh. 55 stating the witness is required to produce the relevant register maintained by the witness. The same application was rejected by the learned Special Judge on 13.11.2018. 5. The present Criminal Appeal is filed against the impugned order of the learned Special Judge, NIA, Ahmedabad, on the grounds stated in the memo of Appeal. 6. Submissions of Learned Advocate for the Appellant: It is argued by the learned Advocate for the Appellant Ms. Shilpa R. Shah that the learned Judge has committed an error in rejecting the Application Exh.55 filed by the Appellant and that the register is necessary to testify the credibility of the witness. That as per Section 146 of the Evidence Act, 1872 (hereinafter referred to as "the Evidence Act") it is a right of the defence to cross-examine the witness to testify his veracity and to shake the credibility during trial. It is a matter of right of the accused and the same is not considered by the learned Special Judge. It is also argued that the learned Special Judge has committed grave error in appreciating Section 155 of the Evidence Act. Learned Advocate for the Appellant argued that Section 155 of the Evidence Act is wrongly interpreted. It is also argued that if the register is not allowed to be produced on record, the same will lead to gross miscarriage of justice and also hamper the Appellant's defence. Learned Advocate Ms. Shah therefore prayed to set aside the order passed by the learned Special Judge and direct the witness to produce the register maintained by the witness. 7. Learned Advocate Shri Kshitij Amin for learned Assistant Solicitor General Shri Devang Vyas for Respondent No.2- National Investigating Agency has argued that the order passed by the learned Special Judge is legal, correct and proper in the eye of law and no infirmity is found in the said order. The learned Special Judge has rightly appreciated Sections 145, 155 and Sections 5 and 11 of the Evidence Act. That the prosecution witness under examination is the panch witness for the discovery panchnama of the Motorcycle. The learned Special Judge has rightly appreciated Sections 145, 155 and Sections 5 and 11 of the Evidence Act. That the prosecution witness under examination is the panch witness for the discovery panchnama of the Motorcycle. That there is no connection to the panch witness and the register maintained by the witness during the course of his mobile business and requested to dismiss the present Criminal Appeal. 8. Merits of the case: We have heard learned Advocates for the parties, read the Appeal memo and perused the order passed by the learned Special Judge as well as the deposition of the witness. 9. While examining the PW-7 in NIA Application No.2/2017 at Exh.53, the controversy is raised during the cross-examination of the defence. In paragraph 9, it is stated by the witness as under: "At that time, I was at my shop. I do not know as to who called from SOG office, but I visit SOG office to submit statement on account of my mobile business. Therefore, they have my phone number. I do business of new mobiles. I maintain a register of new mobile numbers. If SOG office checks my register, it makes note thereof. If require, I will produce the said register in the court. I do not regularly visit SOG office for showing the register but if they call for the same, I have to go to show the same. I have not gone to SOG office to show any of my registers in 2018. I once went to SOG office to show register in 2017. At present, I do not remember as to on which date and in which month I went there in 2017." 10. It is not in dispute that PW-7 is examined as a panch witness of the panchnama under Section 27 of the Evidence Act. 11. The article / thing which is recovered at the instance of Section 27 - panchnama is the Motorcycle. 12. The Investigating Officer has seized the Motorcycle by preparing the panchnama under Section 27 of the Evidence Act. 13. As per Section 5 of the Evidence Act, the evidence may be given of facts in issue and the relevant facts. 11. The article / thing which is recovered at the instance of Section 27 - panchnama is the Motorcycle. 12. The Investigating Officer has seized the Motorcycle by preparing the panchnama under Section 27 of the Evidence Act. 13. As per Section 5 of the Evidence Act, the evidence may be given of facts in issue and the relevant facts. Section 5 of the Evidence Act reads thus; "Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others." From cogent reading of Sections 5 of the Evidence Act, it is clear that the evidence may be given not only related to the fact in issue but it should also be relevant under the provisions of the Act. 14. Here in this case, the register which is asked for production from the witness is maintained by the witness in the course of his business. The entries made in the register regarding accounts are regularly kept in course of business are relevant under Section 34 of the Evidence Act if it is referred to a matter into which the court has to inquire. Section 34 of the Evidence Act reads as under: "[Entries in books of account, including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability." The witness under examination is a panch witness with regard to recovery of a Motorcycle and the register asked to be produced by the defence is not a fact in issue in the case. Not only that, but it is an irrelevant evidence. 15. Further, under Sections 53 to 55 of the Evidence Act, it is provided; "Character when relevant" Sections 52 and 55 pertains to the civil cases whereas Sections 53 and 54 are applicable to the criminal case, but it is related to the accused's character and not the character of the witness much less of panch witness. Here, in this case, the issue is regarding the character of panch witness. Therefore Sections 52 to 55 are equally not applicable. 16. Here, in this case, the issue is regarding the character of panch witness. Therefore Sections 52 to 55 are equally not applicable. 16. Considering the factual aspects and in view of the legal provisions involved in the case and the ratio laid down by the Hon'ble Supreme Court, the register asked for production is irrelevant and not related to the fact in issue. Therefore, direction to produce said document is not necessary and said decision by trial court does not affect or hurt right of the accused. 17. The learned Advocate for the Appellant Ms. Shilpa R. Shah has relied upon Section 146 of the Evidence Act and argued that the registered is required to test the veracity of the witness. It would be the case of the Appellant that the said panch witness is under the influence of the SOG office. The witness has to submit the register as regards the business of mobile to the SOG office and the initial complaint was registered by the ATS Police Station, Gujarat at Ahmedabad. 18. Both the offices are different. There is no foundation and basis in the evidence of said witness and there is no material also which justifies the demand for production of said document which contain record of the sale of mobile phones and those details are not fact in issue. 19. The learned trial court has observe and held that: "5. On careful perusal of the provisions of Sec. 155 of the Act, it becomes very much clear that sub-section (1) of Sec.155 enables the parties to give independent testimony as to the character of a witness in order to indicate that he is unworthy of belief by the Court. The section indicates four ways in which the credit of a witness may be impeached. Out of the four ways, for the matter, the sub-clause (1) i.e. the evidence of persons that the witness is unworthy of credit, is relevant for the matter. The sub-clause (1) has an explanation which is a re-echo of Sec. 153. The witnesses deposing to character can be asked in cross examination to give reasons for their opinion. They are not liable to be contradicted in those reasons, but, if they are false, they can be charged with giving false evidence. The sub-clause (1) has an explanation which is a re-echo of Sec. 153. The witnesses deposing to character can be asked in cross examination to give reasons for their opinion. They are not liable to be contradicted in those reasons, but, if they are false, they can be charged with giving false evidence. For contradicting the witness of his character, the party has the knowledge of the witness which believes him to be unworthy of credit. In the instant case, nothing is brought on record by the defence to show that their knowledge of the witness, renders him unworthy of credit. The other sub-provision is not relevant to the present matter. 6. It is also well settled principle that this section should be strictly construed and narrowly interpreted, otherwise Courts would have to investigate, on most imperfect materials, questions which have no bearing upon the matter really in contest. 7. In view of the settled principle laid down by the Hon'ble High Court and Hon'ble Supreme Court, it is very difficult in absence of any cogent and convincing material on record, to ask the witness to produce the Register containing record of sale of mobile phone. 8. Moreover, the PW-7 Hitesh Pravinbhai Pandya, is the witness to prove the discovery of the motorcycle shown by one of the accused Naeem and during the cross examination of such witness, upon the question being asked by the defence, the reference of the Register has been brought on record. It is required to be noted here that while deciding the matter, the Court has to also consider as to whether the evidence is required to be given on facts in issue or relevant facts. On perusing Sec.5 of the Act, it is crystal clear that the production of the Register cannot be considered as evidence which is required to be brought on record. Not only that, the production of the Register will not fall under the provisions contained in Sec.11 of the Act which deals with the facts not otherwise become relevant." There is no reason to believe that the witness is influenced by the investigating agency. Therefore, the said document cannot of relevance or assistance to the veracity of the witness. 20. Considering the factual aspects of the case, it appears that the learned Special Judge is right and justified in the decision to reject the application. Therefore, the said document cannot of relevance or assistance to the veracity of the witness. 20. Considering the factual aspects of the case, it appears that the learned Special Judge is right and justified in the decision to reject the application. The learned court has rightly observed and concluded that Section 155 of the Evidence Act is applicable. 21. We do not see any error in the decision of the court and in the order passed by the learned trial court. There is no reason or basis or justification to accept and entertain and allow the Appeal. The Appeal fails and deserves to be rejected. 22. The Appellant has filed this Appeal under Section 21 of the NIA Act. Sub Sections (1) and (3) of the NIA Act reads as under "(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court." Considering the provisions of Section 21 of the NIA Act, the Appeal is maintainable from any judgment, sentence or order, not being an interlocutory order. The order under challenge is passed by the learned Special Judge by exercising the power under Section 91 and / or Section 311 of the Code of Criminal Procedure for production of the document. Such order can be said to be interlocutory order. This court relied upon the judgment of the Hon'ble Supreme Court delivered in case of Sethuraman v. Rajamanickam reported in, (2009) 5 SCC 153 , wherein the Hon'ble Apex Court in paragraph 5 has observed as under: "5. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C, were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable." Considering the facts and circumstances of the case and the law point involved in the case as well as the ratio laid down by the Hon'ble Supreme Court in the above referred cases, we are of the opinion that the learned Special Judge has rightly rejected the application and there is no infirmity found in the order passed by the learned Special Judge in the order below Exh.55 in NIA Special Case No. 2 of 2017 dated 13.11.2018. The Appellant is not succeeded in the Appeal. Hence, it is required to be dismissed. Accordingly we dismiss the Appeal. Notice is discharged.