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2020 DIGILAW 122 (GAU)

Tarh Tanio v. State Of A. P.

2020-02-04

KALYAN RAI SURANA

body2020
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. M. Pertin, learned Senior Advocate assisted by Mr. K. Dabi, learned counsel for the petitioner. Also heard Mr. J. Tsering, learned Additional Public Prosecutor for the State of Arunachal Pradesh. 2. In the affidavit of service filed on 02.09.2019 by the petitioner, it has been stated that the respondent No. 6 had died on 24.12.2017. Accordingly, the name of T. Tayeng, the deceased respondent No. 6 is struck off.None appears on call for respondent No. 5, and 8. 3. This application under Sections 397 and 401, read with Section 482 Cr.P.C. has been filed for setting aside and quashing of the order dated 31.01.2018 passed by the Learned Sessions Judge, West Sessions Division, Yupia in Sessions Case No. 27/2017(YPA), corresponding to Sagalee P. S Case No. 4/2016 under Sections 305/34 I.P.C., thereby discharging the accused, namely, Shri Kara Abo Taga (respondent No. 7) and Shri Gollo Mangha (respondent No. 8). 4. The learned senior counsel for the petitioner, has extensively referred to the documents annexed to this application and materialsavailable in the LCR called for from the learned trial Court. It is submitted that the petitioner s minor daughter had committed suicide upon being physically and mentally harassed by the respondent Nos. 7 and 8. Accordingly, an FIR was lodged against the said 2(two) respondents. After investigation, the I.O. had filed charge sheet against the respondent Nos. 7 and 8. It is submitted that as per column 10 of the charge-sheet, the I.O. had seized, amongst others, a personal diary of the deceased, 3 (three) mobile handsets and 1 (one) ligature material (i.e. a silk scarf). A brief story of the case was appended to the charge sheet, referring to the same, it is submitted that the I.O. had mentioned therein that on requisition, the call detail report (CDR for short) of the mobile numbers of the accused as well as the deceased victim for the period from 01.12.2015 to 02.03.2016 was received and that as per the CDR analysis, the accused persons were in frequent contact with the deceased victim and the last call was traced on 02.03.2016 at 8:38:40 hours. After taking custody of the dead body, an inquest was made and the body was then dispatched for post mortem examination. After taking custody of the dead body, an inquest was made and the body was then dispatched for post mortem examination. It is submitted that although the post mortem report is available in the LCR, but there is no mention of it in the charge-sheet submitted by the I.O. under Section 173 Cr.P.C. 5. It is submitted that notwithstanding reference to the statements of various witnesses recorded by the I.O. under Section 161 Cr.P.C., the learned Sessions Judge, Yupia had recorded in the impugned order dated 31.08.2018 as follows: "The Investigating Officer of the case has not annexed the CDR of the mobile phones that were seized. Nor the contents of any SMS have been furnished. In the charge-sheet also the IO has not mentioned about any incriminating evidence or writing left by the deceased against any of the accused persons. The personal Diary of the deceased is also not annexed. The evidence adduced by the IO of the case is not sufficient for framing charge against any of the accused persons. Therefore, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the prosecution and the defence in this behalf with the citations so placed, this Court considers that there is not sufficient ground for proceeding against the accused persons, therefore the accused persons Kara Abo Taga and Gollo Mangha are hereby discharged U/S 227 Cr.P.C." 6. Accordingly, it is submitted that merely because the I.O. of the case did not annex the incriminating materials seized in course of investigation, the learned trial Court, instead of directing the I.O./Officer-in-Charge of Sagalee P.S. to produce the evidence mentioned in the charge- sheet, deemed it fit to hold that there was no sufficient materials for proceeding against the accused persons and therefore, both the accused were discharged under Section 227 Cr.P.C. Accordingly, the said order in impugned in this petition. 7. Per contra, the learned Additional Public Prosecutor (APP for short) for the State has made his submissions in support of the impugned order. It is submitted that vide order dated 01.06.2017, the learned trial Court had allowed a petition filed by the petitioner under Section 301(2) Cr.P.C., thereby allowing him to assist the Public Prosecutor (PP for short). 7. Per contra, the learned Additional Public Prosecutor (APP for short) for the State has made his submissions in support of the impugned order. It is submitted that vide order dated 01.06.2017, the learned trial Court had allowed a petition filed by the petitioner under Section 301(2) Cr.P.C., thereby allowing him to assist the Public Prosecutor (PP for short). It is submitted that at the stage of consideration of charges on 31.01.2018, the petitioner took a risk of absenting himself before the learned trial Court and his engaged counsel was also not present. Accordingly, it is submitted that as the petitioner did not take adequate care by remaining vigilant at the stage of consideration of charges, as such, the petitioner cannot be permitted to take advantage of his lapse, because had the petitioner been present, he could have assisted the PP in the matter. Hence, it is submitted that there is no infirmity in the impugned order and, as such, this Court was not required to examine what ought to have been done by the trial Court, but this Court should confine its adjudication only as to the correctness of the order challenged. In this connection, it is submitted that the power of the Revision Court is limited to the extent of finding out if the order impugned herein was sustainable or not. 8. It is seen that while the appellate Court has the power and jurisdiction to take further evidence by invoking C., but there is no provision in the Cr.P.C. by which a revisional Court can issue a direction for taking additional evidence. However, this question does not even arise in this case in hand. In the considered opinion of the Court, after completion of investigation, the I.O. has to file a report before the Court, as per the requirement of Section 173 Cr.P.C. If no sufficient materials are found against the accused, the police may file a final form or final report, but if some materials are found against the accused, a charge- sheet is filed before the Court. The police have no discretion of not forwarding to the Court the seized materials, or other documents of which reference is made in the charge- sheet. After the charge- sheet is submitted before the Court, it forms the case material before the learned Court. The police have no discretion of not forwarding to the Court the seized materials, or other documents of which reference is made in the charge- sheet. After the charge- sheet is submitted before the Court, it forms the case material before the learned Court. Therefore, if the trial Court finds that the material evidence, which has been mentioned in the charge- sheet is not available before the Court, the trial Court would certainly have unfettered power and jurisdiction to call upon the police to produce such material for the consideration of the Court. In the considered opinion of the Court, the exercise of power by the learned trial Court to get all materials, mentioned in the charge- sheet cannot be confused with distinct power of the Court to direct further investigation or to take additional evidence on record. An order to the police to submit materials mentioned in charge- sheet would be like an administrative order by which the Court merely wants that the charge- sheet, complete in all aspects, is made available before it. 9. The Court is also of the considered opinion that if a learned Court starts discharging accused merely because the police has committed a dereliction of duty by withholding evidence from the Court, despite reference of such evidence in the case diary and/or the charge- sheet, it would lead to failure of criminal justice mechanism in the State. The trial Court is not dependent solely on the police to conduct trial. It is no longer res integra that Court is not powerless to issue directions to the police for re-investigation if interest of justice demands so. If one needs any authority on such legal proposition that the Magistrate can order investigation under Section 173(8) Cr.P.C., the case of Vinubhai Haribhai Malaviya Vs. It is no longer res integra that Court is not powerless to issue directions to the police for re-investigation if interest of justice demands so. If one needs any authority on such legal proposition that the Magistrate can order investigation under Section 173(8) Cr.P.C., the case of Vinubhai Haribhai Malaviya Vs. State of Gujarat,2009 AIR SC 5233: (2019) Supreme Today(SC) 1148 , where as the Full Bench of the Supreme Court of India has in no uncertain terms had held to the effect that when Section 156(3) states that a Magistrate empowered under Section 190 may order such an investigation, such Magistrate may also order further investigation under Section 173(8), with regard being had to the definition of investigation contain in Section 2(h) of the Cr.P.C. In light of such ratio, this Court is of the considered opinion that there would be no infirmity if the learned trial Court passes a direction upon the police to produce evidence the reference of which is made in the chargesheet. Let us take an example to test this proposition - one accused is apprehended after committing murder and the post- mortem had been conducted on the dead body, but before the post mortem report is available, the police submits a charge-sheet. The question posed is whether the trial Court is powerless to call for the post mortem report. In this regard, the Court is of the opinion that a trial Court is not powerless to call for the post mortem report even if there is no mention of such report in the charge-sheet, as such, it cannot be accepted that in the present case in hand, the trial Court had no power to call for production of evidence mentioned in the charge- sheet. 10. In the present case in hand, the two accused have been discharged by the learned trial Court for lack of evidence because the I.O. did not produce the personal diary of the deceased and CDR analysis, which disclosed that the accused persons had last contacted the deceased on the night she committed suicide. 10. In the present case in hand, the two accused have been discharged by the learned trial Court for lack of evidence because the I.O. did not produce the personal diary of the deceased and CDR analysis, which disclosed that the accused persons had last contacted the deceased on the night she committed suicide. By omitting to exercise power vested in it to call for the production of evidence mentioned in the charge- sheet, this Court is of the considered opinion that the learned Sessions Judge concerned has committed jurisdictional error, and under such circumstances, this revisional Court is not powerless to ensure complete justice by holding that the trial Court ought to have called for the evidence which was mentioned in the charge- sheet. 11. It is reiterated at the cost of repetition that in the present case in hand, a perusal of the charge sheet shows that, amongst others, a personal diary of the deceased victim was seized and that the police had also obtained CDR in respect of mobile handsets of the two accused and the deceased victim and the CDR analysis was done, as such, it was definitely within the power of the learned trial Court to direct the I.O. to produce the materials mentioned in the charge- sheet. However, the present case in had the learned trial Court had not insisted in the production of those materials, and based on lack of evidence, the respondents No. 7 and 8, who were the accused, were discharged, which is certainly not in the interest of complete justice. 12. In the further opinion of the Court, apart from directing production of evidence, the learned trial Court could have even gone a step ahead to seek explanation from the police why the evidence mentioned in the charge-sheet was withheld from the consideration of the Court, or such situation could also have been brought to the notice of the Superintendent of Police of the District. 13. As regards the submissions made by the learned APP for the State by which it was highlighted that the petitioner was granted an opportunity to assist the PP, but he remained absent at the stage of consideration of charge, this Court is of the considered opinion that a trial Court is not dependent on the submissions made either by the prosecution or by the learned counsel for the defence. It is well settled that the trial Court is not a postman. Under the criminal justice delivery system prevailing in the Country, several safeguards and provisions has been provided under the Criminal Procedure Code for the trial Court to do complete justice. An order to direct the police to furnish evidence mentioned in the charge- sheet does not fall within the mischief of irregular proceeding as envisaged under Chapter XXXV of the Cr.P.C. In the present case in hand, when a minor girl had committed suicide and two persons are accused in the charge-sheet of harassing the victim, leading to her suicide, the least that is expected from the learned trial Court is that it would peruse the materials forming a part of the charge-sheet and then pass appropriate orders. 14. In view of the discussions above, having held that the learned trial Court ought to have directed the police to produce materials mentioned in the charge-sheet, this Court is of the considered opinion that this is a fit case to invoke inherent powers of the Court under Section 482 Cr.P.C. read with Section 397 and 401 Cr.P.C. to ensure complete justice. Resultantly, the impugned order dated 31.01.2018, passed by the learned Sessions Judge, West Sessions Division, Yupia in Sessions Case No. 27/2017 (YPA), corresponding to Sagalee P.S. Case No. 4/2016, thereby discharging the accused, i.e. the respondent Nos. 7 and 8 herein is held to be not sustainable and, as such, the same is hereby set aside and quashed and this revision stands allowed. The proceedings of Sessions Case No. 27/2017 (YPA) is restored to file of the Court of the learned Sessions Judge, West Sessions Division, Yupia, who is directed to proceed with the matter afresh from the stage of consideration of charges. Needless to mention that the said learned Court shall now take steps to call upon the police to produce all such evidence and/or materials of which reference is made in the charge- sheet. 15. Let the LCR be expeditiously returned together with a copy of this order. 16. The petitioner is directed to appear before the learned trial Court on 28.02.2020 and seek further instructions from the said learned Court. 17. 15. Let the LCR be expeditiously returned together with a copy of this order. 16. The petitioner is directed to appear before the learned trial Court on 28.02.2020 and seek further instructions from the said learned Court. 17. A copy of this judgment and order may also be provided to the learned APP for the State to apprise the Director General of Police that along with the charge- sheet in Sagalee P.S. Case No. 4/2016, the materials mentioned in the charge- sheet were not forwarded to the Court along with the charge- sheet. It is hoped that the Police administration shall place a mechanism in place by which such an error is not repeated again because such lapses also erode public faith in the in criminal justice delivery system.