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2019 DIGILAW 839 (RAJ)

Shanker Lal v. State, Through PP

2019-03-13

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the impugned order dated 04.09.2018 passed by learned Special Judge, Special Court, Prevention of Children from Sexual Offence Act, 2012 and Children Rights Protection Commission Act, 2005 No.2, Udaipur in Special Sessions Case NO.236/2018 titled as State of Rajasthan Vs. Shanker & Ors. whereby the learned trial court has declined to summon the documents pertaining to admission of the prosecutrix from the concerned government school and accordingly, rejected the application under Section 91 of the Cr.P.C. filed by the petitioner. 2. The trial for the offences under Sections 363, 376 and 120- B IPC read with Section 3/4 & 17 of the POCSO Act is going on against the petitioner. 3. The limited question to be adjudicated by this Court in the present case is that the accused - petitioner moved an application under Section 91 Cr.P.C. seeking to take on record the document pertaining the date of birth of the prosecutrix at the time of her initial admission in the school in which her date of birth was mentioned as 15.07.1997, and thus, she would have been 18 years of age at the time of the alleged incident. 4. Counsel for the petitioner and counsel for the respondent both have relied upon the Full Bench judgment of the Hon'ble Apex Court in the matter of State of Orissa Vs. Debendra Nath Padhi , (2005) AIR SC 359 / 2005 1 SCC 568 . 5. Counsel for the petitioner has relied upon para 26, 27 and 28 of the said judgment which reads as under : "26. Reliance on behalf of the accused was placed on some observations made in the case of Om Prakash Sharma vs. CBI, Delhi , (2000) 5 SCC 679 . In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra's case (supra). In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra's case (supra). The contentions based on Satish Mehra's case have been noticed in para 4 as under: "The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. , (1996) 9 SCC 766 laying emphasis on the fact the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State , (1999) 49 DRJ 202 . Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings. 27. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19. 28. We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry." 6. Counsel for the complainant, however, has relied upon para 23 of the said judgment which reads as under : "23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided." 7. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided." 7. After hearing the counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, , this Court finds that the precedent law absolutely applies in favour of the petitioner in this case insofar as Section 91 Cr.P.C. is concerned, the Hon'ble Apex Court in the aforementioned judgment held that width of the powers of that Section was unlimited but there were inbuilt inherent limitations which would normally be taken as a limitation upon the learned trial court to not to entertain any application under Section 91 Cr.P.C. moved from the accused side. However, the Hon'ble Apex court itself has clearly held that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time. The Hon'ble Apex Court has further held in para 29 of the said judgment that the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited so as to prevent abuse of the process of law and to secure the ends of justice. 8. The Hon'ble Apex Court in the aforementioned judgment has further laid down that the jurisdiction under Section 91 Cr.P.C. when invoked by accused, the necessity and desirability would have to be seen by the Court in the context of the purpose - investigation, inquiry, trial or other proceedings under the Code. The jurisprudence laid down by the Apex Court, thus, is amply clear that in normal course, the provision of Section 91 Cr.P.C. comes with inherent inbuilt limitation for the Court to take any fresh document on record. However, if this Court to prevent abuse of process of law and to secure the ends of justice finds that there is necessity and desirability of the document at this stage and it is likely to have affect on the sustainability of the case, then it should be called for. 9. However, if this Court to prevent abuse of process of law and to secure the ends of justice finds that there is necessity and desirability of the document at this stage and it is likely to have affect on the sustainability of the case, then it should be called for. 9. This Court is of the opinion that the trial is going on under the law of Prevention of Children from Sexual Offences Act, 2012 and that the petitioner is of tender age of 20 years, whereas the girl is said to be of 19 years. This Court finds that at the time of the incident, as per the document to be brought on record, the complainant would have become major and thus, the sustainability of the POCSO trial could be judged by the trial court without prejudice to the rights of either of the parties. 10. In the overall circumstances and taking into consideration the fact that the age of the petitioner/ boy being 20 years and girl being 19 years, and also looking to the fact that where the trial is under the POCSO Act and the age proof of the girl as sought would clearly reflect that at the time when the alleged incident took place, she had attained the age of majority, this Court, while following the precedent law laid down by the Full Bench of the Hon'ble Apex Court in Debendra Nath Padhi's case (supra), deems it appropriate to quash the impugned order dated 04.09.2018 passed by learned Special Judge, Special Court, Prevention of Children from Sexual Offence Act, 2012 and Children Rights Protection Commission Act, 2005 No.2, Udaipur in Special Sessions Case NO.236/2018 titled as State of Rajasthan Vs. Shanker & Ors.. 11. Consequently, the present misc. petition is allowed, and while quashing and setting aside the impugned order dated 04.09.2018 passed by the learned court below, the application preferred by the petitioner under Section 91 Cr.P.C. is allowed. Stay application No.3368/2018 stands disposed of accordingly.