Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 1358 (AP)

Telugu Jyothi v. State of Andhra Pradesh

2024-09-25

V.R.K.KRUPA SAGAR

body2024
ORDER : 1. These Criminal Revision Cases filed under Sections 397 and 401 of Code of Criminal Procedure (Cr.P.C.) impugning the common order dated 04.04.2024 in Crl. M.P. Nos. 382, 383 and 426 of 2024 in S.C. No. 1 of 2021 of the learned Special Court for Trial of Criminal Cases relating to Elected M.Ps and M.L.As. of the State of Andhra Pradesh, Vijayawada. 2. Heard arguments of Sri Venkateswara Rao Gudapati, the learned counsel appearing on behalf of Sri G. Venkata Sailendra for revision petitioner and Sri O. Manohar Reddy, the learned Senior Counsel and Sri P.Uma Maheswararao, the learned counsel appearing on behalf of Sri Varun Byreddy, the learned counsel for respondent Nos. 2 and 6 and Sri Sandeep, the learned Assistant Public Prosecutor for respondent No. 1/State. 3. Learned counsel for revision petitioner cited: 1. Sheela Devi Vs. State of U.P. 2018 SCC Online All 3772 2. Rekha Murarka Vs. State of West Bengal, Crl. Appeal No. 1727 of 2019 3. Varsha Garg Vs. State of Madhya Pradesh, 2022 SCC Online SC 986 4. Mina Lalita Baruwa Vs. State of Orrissa, (2013) 16 SCC 173 5. Zahira Habibulla H. Sheikh Vs. State of Gujarat, (2004) 4 SCC 158 6. Dinesh Vs. The State Through Narona Police Station, Crl. Pet. No. 200181 of 2021 7. Madhusudan Shukla Vs. State of U.P. Application under Section 482 No. 12409 of 2022 4. Learned counsel for respondent/accused cited: 1. Sedam Govindu Vs. ........1958 (1) ALT 154 2. Girish Kumar Sunela Vs. Central Bureau of Investigation, (2017) 14 SCC 809 3. Satyajit Banerjee Vs. State of West Bengal, (2005) 1 SCC 115 4. Seethuraman Vs. Rajamanickam, (2009) 5 SCC 153 Learned Assistant Public Prosecutor for respondent/State cited: Satbir Singh Vs. State of Haryana, 2023 INSC 786 5. The brief facts of the case are: (i) Accused No. 1 to 14 have been facing trial in S.C. No. 1 of 2021 before the Special Court for Trial of Criminal Cases relating to Elected M.Ps and M.L.As, Vijayawada for various offences including the offence under section 302 IPC for the alleged murder of Sri Besta Sai Eswarudu on 15.03.2014 . During trial, his daughter testified as PW-31 and his wife testified as PW-32. During trial, his daughter testified as PW-31 and his wife testified as PW-32. Subsequent to their evidence, it was on 18.01.2024, the petitioner/PW-31 had received a voice call record from unknown WhatsApp Number “+1(224) 294-3021” to Mobile No. 9440425000 and after playing the same, she heard the conversation and identified that the said conversation was between A1 and A5. It contained discussion concerning the conspiracy and killing of the deceased father of the petitioner, and also the plans to influence the witnesses. (ii) PW-31 believed this to be a crucial evidence to prove the guilt of the accused. So, she approached the Additional Public Prosecutor concerned and applied to all the superior police officers for production of this evidence in the court but found no positive response from them. (iii) In such circumstances, she herself filed petitions before the trial court for reception of the evidence, for re-opening the case and recalling her as a witness. Initially, trial court refused to entertain them on the premise that in a State held prosecution a witness had no legal competence to make such prayers. (iv) Aggrieved by that, the petitioner/PW-31 filed a Criminal Petition No. 1368 of 2024 before this court under Section 482 of Cr.P.C to direct the Special Court to receive the recall and reopen petitions under Section 311 of Cr.P.C in S.C. No. 1 of 2021. Considering the facts and circumstances of the case, a learned Judge of this Court disposed of Criminal Petition No. 1368 of 2024 on 18.03.2024 by directing the Special Court to decide the petitions filed under Section 311 Cr.P.C and not to deliver the judgment in S.C. No. 1 of 2021 till the disposal of the petitions filed under Section 311 Cr.P.C. (v) Thereafter, the Special Court entertained Crl. M.P. Nos. 382 and 383 of 2024 seeking recall of petitioner/PW-31 and to reopen the cases filed on 19.03.2024 and Crl. M.P. No. 426 of 2024 to receive the additional documents i.e. Section 65B Certificate and original mobile phone, bearing I.M.E.I. No. 356129102712905 and 356130102712903, Samsung galaxy A50 model, black colour of the petitioner and other petition. 6. M.P. Nos. 382 and 383 of 2024 seeking recall of petitioner/PW-31 and to reopen the cases filed on 19.03.2024 and Crl. M.P. No. 426 of 2024 to receive the additional documents i.e. Section 65B Certificate and original mobile phone, bearing I.M.E.I. No. 356129102712905 and 356130102712903, Samsung galaxy A50 model, black colour of the petitioner and other petition. 6. The learned Special Court by common order dated 04.04.2024 dismissed the said petitions recording various reasons: (a) It observed the lack of details of the devices, inability of the petitioner to recognize the alleged voices, unable to say who originally recorded the alleged conversation and when was it recorded and the mode of recording it. (b) It held that the proposed evidence is hear-say in nature and inadmissible. (c) It then went on to record various things that occurred in connection with this matter finding fault with the conduct of the petitioner and her ineligibility in filing such petitions. (d) It recorded that PW-31 failed even to implead the State as one of the respondents in the petitions which in its view cannot be countenanced. (e) It recorded that PW-31 was never permitted by the court to assist the prosecution. PW-32 was granted permission to engage a counsel and assist the prosecution. On behalf of PW-31 advocates appeared even without vakalats. 7. Petitioner filed the present revisions against the order of the Special Court dated 04.04.2024 in Crl. M.P. Nos. 426, 383, 382 of 2024 mentioning the following grounds: (i) The order passed by the Special Court is perverse, contrary to law and without jurisdiction. (ii) The Special Court failed to consider the evidence when the new material evidence was brought by the petitioner and also failed to follow the procedure contemplated under Cr.P.C. (iii) The Special Court erred in dismissing the petitions on the ground that petitioner is a third party. (iv) The Special Court had exceeded its jurisdiction by deciding the matter on assumptions and presumptions on its own. Court does not have expertise on the technical aspects and it should have sent it for investigation as the material has been first time brought before the Special Court. (iv) The Special Court had exceeded its jurisdiction by deciding the matter on assumptions and presumptions on its own. Court does not have expertise on the technical aspects and it should have sent it for investigation as the material has been first time brought before the Special Court. (v) The Special Court on the basis of the evidence brought before it dismissed the petitions without any investigation or enquiry and without reading the contents of the affidavit filed by the petitioner and decided the said issues without trial which is arbitrary and contrary to the provisions of Cr.P.C. (vi) The Special Court mentioned that the petitioner has failed to identify the voice of accused No. 1 and accused No. 5 without any basis which is contrary to the evidence. (vii) The Special Court ought to have seen the importance of the evidence brought before it and it is the duty of the Court to send it to the investigating department or should have conducted trail and ought to have come to the just decision for proper adjudication of the trial. (viii) The Special Court decided the petitions without any enquiry and based on the affidavit and counter which is illegal and unsustainable. (ix) The Special Court erred in dismissing the applications on the ground that the State was not made as party. (x) The Special Court dismissed the petition that was filed under Section 65B of the Indian Evidence Act, 1872 contrary to law. 8. The revisional jurisdiction of this court is invoked to evaluate the correctness, legality or propriety of the impugned orders. Therefore, the following points fall for consideration: 1. Whether the impugned orders are incorrect, illegal or suffer from any impropriety? 2. Whether the impugned orders are interlocutory orders or intermediatory orders? POINT NO. 1: From the material presented before this court and the arguments submitted on both sides, it could be seen that this is a case where the daughter of a deceased in a murder case stands on one side and the State and the accused stand on the other side. The orders of the learned trial Judge in dismissing the applications runs into 46 pages where it addressed the facts, the principles of law and the conduct of the proceedings and certain misrepresentations stated to have been made on behalf of the daughter of the deceased. 9. The orders of the learned trial Judge in dismissing the applications runs into 46 pages where it addressed the facts, the principles of law and the conduct of the proceedings and certain misrepresentations stated to have been made on behalf of the daughter of the deceased. 9. The entire controversy revolves around a piece of evidence that was requested to be received and brought on record as substantive evidence. The evidence that was sought to be brought on record is a conversation between two individuals which according to the revision petitioner was a conversation between A1 and A5 and the purport of the conversation would show certain facts indicating conspiracy for committing murder of her father and to influence or harm the witnesses in the case at hand under trial. The relevance of such evidence was never in question. The entire controversy revolved around the nature and quality of the proposed evidence and as to whether what was sought to be adduced was an admissible piece of evidence or not. It is undisputed that the proposed evidence reached the revision petitioner and none else. It is also undisputed that she had notified about that evidence available with her to the State. Before the learned trial court, the contention raised by the State was that on examination of such evidence, the prosecution was of the considered view that what was called as important material was not primary evidence and the revision petitioner was unable to furnish the date on which the voice recording occurred, the details as to who recorded such conversation and where it was recorded and which device was used for recording such conversation and there were also no details as to who sent such voice recording and to which mobile that was sent and who transmitted that voice recording into that pen drive. Thus, in its opinion it was not primary evidence and it lacked all the normal details that are required for presenting it as substantive evidence in a court of law. 10. Thus, in its opinion it was not primary evidence and it lacked all the normal details that are required for presenting it as substantive evidence in a court of law. 10. That aspect of the matter was argued on both sides before the learned trial court and the learned trial Judge had dealt with it carefully and at great length and finally held that the proposed evidence is not primary evidence and it may be called as secondary evidence or hearsay evidence and therefore it could not be received and could not be permitted to be adduced as substantive evidence. In the process of dealing with the facts and contentions, the learned trial Judge had also furnished other reasons to exclude this evidence. Much of the debate between the parties both at the trial court as well as here hinges on those aspects, namely: (i) The revision petitioner who testified as PW-31 was not the one who was permitted to assist the prosecution and it was PW-32, the wife of the deceased who was permitted to assist the prosecution but she did not choose to move any such applications. (ii) Advocates appeared and argued on behalf of the petitioner without filing any vakalats. (iii) In the earlier proceedings before the Hon’ble High Court, incorrect facts were submitted with reference to the stage of the case and production of certificate under Section 65B of Indian Evidence Act. (iv) In terms of section 225 Cr.P.C. it was the exclusive privilege of the State prosecutor to conduct the prosecution and the petitions for reception of evidence was made without making the State a party to the proceedings. 11. Learned trial court further considered as to whether the evidence proposed would be useful for reaching any just conclusion of the case pending before it. While dealing with that aspect of the matter, it made reference to various aspects and felt completely suspicious about the identity of the persons between whom the alleged conversation took place. It was in such circumstances, it refused to accept the evidence. 12. The orders impugned are not bereft of reasons. It indicates application of mind and the learned trial Judge was alive and conscious to the nature of the case under trial and the nature of the evidence that was proposed to be adduced in evidence before the court. It was in such circumstances, it refused to accept the evidence. 12. The orders impugned are not bereft of reasons. It indicates application of mind and the learned trial Judge was alive and conscious to the nature of the case under trial and the nature of the evidence that was proposed to be adduced in evidence before the court. In Sedem Govindu’s case, a Division Bench of this court stated that trial courts must always see that inadmissible evidence should never be brought on record. It was further held that allowing hearsay evidence to become part of the evidence is highly irregular. Even in Zahira Habibulla H. Sheikh’s case, the Hon’ble Supreme Court of India was pleased to state that admissibility of material is one thing and what is its worth is another thing. The efficacy, reliability and acceptability for consideration of a fact from evidence is a different matter and what should always be considered at the threshold was the question of admissibility of the proposed evidence. 13. The observations of the learned trial Judge that what was proposed was inadmissible. It is that point that has to be answered by the revision petitioner. The grounds urged in the revision do not say how that observation of the trial court was incorrect. Perhaps, it is for that reason, a slightly different contention is raised in the written grounds urged in these revisions. In these revisions, it is stated that the trial court ought to have received the evidence and ought to have sent it for investigation. Be it noted that as of now, the entire trial proceedings were over before the learned trial court and it was about to pronounce the judgment and it was at that stage, a learned Judge of this court by an order dated 18.03.2024 in Crl. Pet. No. 1368 of 2024 instructed the trial court not to deliver the judgment till the applications pending before the said court were disposed of. Now in the revision petition, the revision petitioner aspires for further investigation. That was never the case presented before the court below. The learned trial court and the State never thought of going for any further investigation at that stage of the case. Now in the revision petition, the revision petitioner aspires for further investigation. That was never the case presented before the court below. The learned trial court and the State never thought of going for any further investigation at that stage of the case. In fact, no serious arguments were raised before this court as to why at this stage, State or the trial court should take a decision to have the case further investigated. 14. The order impugned was passed by the competent court in duly constituted proceedings and the order is endowed with full reasons on facts and law and there is perversity in the impugned orders. This court sitting in revision cannot substitute its views on the reception of evidence. This court finds no error or impropriety or irregularity or illegality in the orders impugned. Hence, point No. 1 is answered against the revision petitioner. 15. POINT NO. 2: It is relevant to notice that on everything and anything that happened at a trial one could not prefer a revision. The revisional jurisdiction is circumscribed by the statute itself. Section 397 Cr.P.C. to the extent relevant reads as below: (1)............... (2) The power of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) ............... If the impugned orders are interlocutory orders these revisions cannot be maintained. However, the learned counsel for petitioner in these revisions strongly contended that the orders impugned are intermediary orders and not interlocutory orders and therefore these revisions are maintainable. In support, the following ruling is cited: (a) Sheela Devi Vs. State of U.P. 2018 SCC Online All 3772. That was a case where a learned Judge of the Hon’ble Allahabad High Court held that an order of a trial court rejecting an application filed under Section 311 Cr.P.C. for recalling a witness is an intermediate order and revision is maintainable. (b) With due regard to the above enunciation of law, it is to be seen that the law settled through precedent holds a totally different view. A learned Judge of this court in M. Koteswara Reddy Vs. State of A.P. 2020 (1) ALT (Crl) 167 (AP) held that orders passed by the trial court refusing to call the documents, rejecting the application under Section 311 Cr.P.C. are all pure and simple interlocutory orders. A learned Judge of this court in M. Koteswara Reddy Vs. State of A.P. 2020 (1) ALT (Crl) 167 (AP) held that orders passed by the trial court refusing to call the documents, rejecting the application under Section 311 Cr.P.C. are all pure and simple interlocutory orders. Such orders do not decide anything finally and do not terminate the proceedings of the main case once for all. Therefore revisions under Section 397(1) Cr.P.C. against such orders are not maintainable. (c) In addition to the above, the learned counsel for respondent/accused cited to the same affect the ruling of the Hon’ble Supreme Court of India in Sethuram Vs. Rajamanickam, (2009) 5 SCC 153 . In view of the law as referred above it is to be recorded that the impugned orders have not resulted in termination of the proceedings in the main case and they are not intermediate orders but they are interlocutory orders. Therefore, these revisions are not maintainable. Hence, point No. 2 is answered against the petitioner in these revisions. 16. The arguments advanced on both sides include: (a) The locus-standi of PW-31 in praying the court reliefs such as production of additional evidence, recalling a witness in a sessions trial where prosecution is held by the State and the purport of section 225 of Cr.P.C. which mandates that the prosecution shall be conducted by the Public Prosecutor and none else. (b) About the propriety or impropriety of PW-31 in making various factual allegations which are stated to be against the true facts on record. (c) About counsels appearing on behalf of PW-31 without holding vakalats. 17. In the light of the view that is taken by this court in answering point No. 1 and 2, this court is of the opinion that there is no further need to render its opinion on the above referred aspects. 18. In the result, all the Criminal Revision Cases are dismissed. Consequently, common order dated 04.04.2024 in Crl. M.P. Nos. 382 of 2024, 383 of 2024 and 426 of 2024 stands confirmed.