Investigating officer can not remove statements of neighbour from case diary at the time of filing of chargesheet

 Now on coming to the merits of the present case, it appears that in the case of death of Smt. Meenesh wife of accused-petitioner, on information of Ramveer Singh, a merg report was lodged at No. 08/2009. During inquiry, statements of neighbouring witnesses Baijnath Singh, Roop Singh and Vinod Singh were recorded. After merg inquiry, the FIR was lodged and in investigation the statements of the above mentioned witnesses were recorded. But, after investigation, by removing the statements of these three above witnesses, the charge-sheet was filed against the accused for offence under Section306 of IPC. In trial, the Trial Judge on the basis of charge-sheet and the prosecution evidence enclosed therewith, framed charges against the accused. During trial, the Trial Judge recorded statements of prosecution witnesses. Most of the ocular witnesses did not support the prosecution version. At that juncture, one of the witnesses, namely, Baijnath Singh who was a neighbour and an eye-witness of the incident filed an application under Section 91 of Cr.P.C. before the Trial Court which after hearing the parties was rejected. Being aggrieved by the said order rejecting his application under Section 91 of Cr.P.C., said witness Baijnath Singh filed a petition under Section 482 of Cr.P.C. being Misc. Cri. Case No. 1430/2012 which was allowed by this Court under the order impugned directing the Trial Court for summoning the case diary of the crime and taking the statements of the above three witnesses on record. True it is, in view of the provisions contemplated in Section 301 of Cr.P.C., the said witness Baijnath Singh was not complainant and so he was not having any right to participate independently in criminal trial against the accused but when the Investigating Agency itself while submitting charge-sheet papers keeps mum and adopts method of pick and choose in filing the documents alongwith the charge-sheet before the Court and when an application is made to a Court under Section 91 of Cr.P.C., at that juncture, obviously the Court is bound to consider whether there is a prima facie case for supposing that the statements are relevant and the same are likely to have a bearing on the case. It was in this context, when the application was rejected by the Trial Court and the Trial Court did not focus any attention on the question whether the statements sought to be summoned by the petitioner/respondent No. 2 had any relevancy in the case, the petitioner/respondent No. 2 approached this Court under Section 482 of Cr.P.C. Keeping in view the fact that the Courts exist for dispensation of justice and not for its denial for technical reasons when law and justice otherwise demand, this Court interfered under its inherent powers vested under Section 482 of Cr.P.C. and directed the Trial Court to look into the statements and proceed in accordance with law.1

ILR[2013]MP1770, 2013(3)MPHT479; 2013 crlj (NOC)657 M.P

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Misc. Criminal Case No. 7212/2012

Decided On: 17.05.2013

Appellants: Babburaja
Vs.
Respondent: State of M.P. and Another

Hon'ble Judges/Coram:G.D. Saxena, J.

Criminal - Reviewing of order - Code of Criminal Procedure, 1973 (Cr.P.C.) - Whether order passed by Court was liable to be reviewed or not - Held, necessity or desirability would had to be seen with reference to stage when a prayer was made for production - If any document was necessary or desirable for defence of accused, question of invoking Section 91 of Cr.P.C. at initial stage of framing of a charge would not arise since defence of accused was not relevant at that stage - When Section refers to investigation, inquiry, trial or other proceedings - Petition dismissed.

1. Having been aggrieved by the directions issued vide order dated 1-8-12 in Misc. Cri. Case No. 1430/2012 (Baijnath Singh Vs. State of M.P. and another), which are reproduced below, the petitioner has knocked the doors of this Court with a request for exercising powers under Section 482 of Cr.P.C. to secure the ends of justice:--

Consequently, the impugned order dated 11-11-11 is quashed. The petition stands hereby allowed. The application filed on behalf of petitioner under Section 91 of Cr.P.C. is also allowed (which apparently by mistake or typographical error is mentioned the words 'on behalf of the accused-petitioner', whereas it was filed by the interested party in trial against the accused-respondent No. 2, herein). It is directed that the learned Trial Court shall summon the statements mentioned in the application filed by the petitioner through the Investigating Agency and thereafter proceed with the matter in accordance with law, without being influenced by any of the observations made during the course of this order.

In the present petition before this Court, the petitioner prays for the reliefs as following:--

It is, therefore, most humbly prayed that the petition filed by the petitioner may kindly be allowed and order dated 1-8-2012 passed by this Hon'ble Court in M. Cri. C. No. 1430/2012 may kindly be reviewed and heard on merits by giving opportunity to the petitioner.

2. On perusal of the record of Misc. Cri. Case No. 1430/2012, it appears that on 1st August, 2012, after having heard the learned Counsel for petitioner/interested party as well as learned Public Prosecutor appeared on behalf of the respondent No. 1/State, admittedly without issuing notice to respondent No. 2-accused, this Court passed the order which is called in question.

3. Learned Counsel for the petitioner vehemently argued that the respondent No. 2 has no locus standi to participate by way of petition under Section 301of Cr.P.C. in trial against the accused and also by moving previous petition before this Court. He has no locus standi to file the petition under Section 91of Cr.P.C. for calling the statements of the witnesses stated to have been recorded in investigation but not filed with the charge-sheet by the I.O. under Section 174, Cr.P.C. It is further submitted that no such petition was filed with consent of the prosecutor before the Trial Court. In these circumstances, the learned Trial Court has not committed any mistake in rejecting the prayer of the respondent No. 2, which ultimately was allowed by this Court in a petition so preferred, hence, this petition.

4. The learned Public Prosecutor appearing for the respondent No. 1-State, as well as learned Counsel appearing for the respondent No. 2/accused, on the other hand, submitted that although the Inquiry Officer at earlier point of time, at the time of inquiry into merg, recorded the statements of Baijnath Singh Guraia, Roop Singh and Vinod, but during investigation concluded that there was inimical terms of these witnesses with the accused and so their statements are not relevant. On this ground, the statements of those witnesses were kept aside from the investigation and the charge-sheet on the available evidence as collected for offence punishable under Section 306 of IPC was filed. Consequently, the Trial Court framed the charges on the basis of material available by the I.O. It is submitted that in compliance of the order of this Court in a petition, the statements of the aforesaid witnesses were taken on record which disclosed prima facie offence against the accused under Section 302/34 of IPC. Under which circumstances, the charge for the alleged offence is framed against the petitioner/accused vide impugned order. On these grounds, it is prayed for dismissal of the petition.

5. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent No. 1-State as well as learned Counsel appearing for the respondent No. 2, at sufficient length. Also perused the proceedings of case diary written by the Investigating Officer/Inquiry Officer of the merg and examined the relevant provisions of law.

6. At this juncture, it would be useful to reproduce Sections 91 and 302 of Cr.P.C., which read as is under:--

91. Summons to produce document or other thing.--(1) Whenever any Court or any officer-in-charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this Code by or before such Court or such officer, such Court may issue a summons or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it or to produce it at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed--

(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or Telegraph Authority.

301. Appearance by Public Prosecutors.--(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

7. A bare perusal of the provisions as contained in Section 91 of Cr.P.C. makes it clear that whenever the Court considers that a production of any document is necessary or desirable for the purposes of any trial, the Court may issue direction for its production before the Court in trial. The Court should find out the truth which appears either from record or from other sources and it should not act as per the choice of the Prosecutor or accused. In such cases, the Prosecutors are expected to act independently without affecting the investigation. If some evidence is collected during investigation and is relevant for the purposes of the enquiry, trial or other proceeding before the Court and if the Investigating Agency purposefully does not like to disclose the same before the Court while submitting charge-sheet and keeps the same in case diary, in that condition, it is duty of the prosecution to make a request to bring all other evidence though collected but not produced before the Trial Court for consideration, for fair justice. Simultaneously, provisions contemplated in Section 301(2) of Cr.P.C. clearly indicated that if in such case any private person instructs a pleader to prosecute any person, the pleader so instructed may assist the Public Prosecutor and with permission of the Court may submit written arguments after evidence is closed in the case.

8. Now on coming to the merits of the present case, it appears that in the case of death of Smt. Meenesh wife of accused-petitioner, on information of Ramveer Singh, a merg report was lodged at No. 08/2009. During inquiry, statements of neighbouring witnesses Baijnath Singh, Roop Singh and Vinod Singh were recorded. After merg inquiry, the FIR was lodged and in investigation the statements of the above mentioned witnesses were recorded. But, after investigation, by removing the statements of these three above witnesses, the charge-sheet was filed against the accused for offence under Section306 of IPC. In trial, the Trial Judge on the basis of charge-sheet and the prosecution evidence enclosed therewith, framed charges against the accused. During trial, the Trial Judge recorded statements of prosecution witnesses. Most of the ocular witnesses did not support the prosecution version. At that juncture, one of the witnesses, namely, Baijnath Singh who was a neighbour and an eye-witness of the incident filed an application under Section 91 of Cr.P.C. before the Trial Court which after hearing the parties was rejected. Being aggrieved by the said order rejecting his application under Section 91 of Cr.P.C., said witness Baijnath Singh filed a petition under Section 482 of Cr.P.C. being Misc. Cri. Case No. 1430/2012 which was allowed by this Court under the order impugned directing the Trial Court for summoning the case diary of the crime and taking the statements of the above three witnesses on record. True it is, in view of the provisions contemplated in Section 301 of Cr.P.C., the said witness Baijnath Singh was not complainant and so he was not having any right to participate independently in criminal trial against the accused but when the Investigating Agency itself while submitting charge-sheet papers keeps mum and adopts method of pick and choose in filing the documents alongwith the charge-sheet before the Court and when an application is made to a Court under Section 91 of Cr.P.C., at that juncture, obviously the Court is bound to consider whether there is a prima facie case for supposing that the statements are relevant and the same are likely to have a bearing on the case. It was in this context, when the application was rejected by the Trial Court and the Trial Court did not focus any attention on the question whether the statements sought to be summoned by the petitioner/respondent No. 2 had any relevancy in the case, the petitioner/respondent No. 2 approached this Court under Section 482 of Cr.P.C. Keeping in view the fact that the Courts exist for dispensation of justice and not for its denial for technical reasons when law and justice otherwise demand, this Court interfered under its inherent powers vested under Section 482 of Cr.P.C. and directed the Trial Court to look into the statements and proceed in accordance with law. A reference may be made to the decision in the case of State of Punjab Vs. Davinder Pal Singh Bhullar, MANU/SC/1476/2011 : AIR 2012 SC 364, wherein the Hon'ble Apex Court observed as follows:--

31. The inherent power under Section 482, Cr.P.C. is intended to prevent the abuse of the process of the Court and to secure the ends of justice. Such power cannot be exercised to do something which is expressly barred under the Cr.P.C. If any consideration of the facts by way of review is not permissible under the Cr.P.C. and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there are no such changed circumstances, and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362, Cr.P.C. [See: Simrikhia Vs. Dolley Mukherjee and Chhabi Mukherjee and another,MANU/SC/0440/1990 : (1990) 2 SCC 437 : AIR 1990 SC 1605].

32. The inherent power of the Court under Section 482, Cr.P.C. is saved only where an order has been passed by the Criminal Court which is required to be set aside to secure the ends of justice or where the proceeding pending before a Court, amounts to abuse of the process of Court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a Criminal Court or where a power is exercised by the Court under the Cr.P.C. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. [Vide: Kurukshetra University and another Vs. State of Haryana and another, MANU/SC/0102/1977 : AIR 1977 SC 2229; and State of W.B. and others Vs. Sujit Kumar Rana, MANU/SC/0049/2004 : (2004) 4 SCC 129 : AIR 2004 SC 1851].

33. The power under Section 482, Cr.P.C. cannot be resorted to if there is a specific provision in the Cr.P.C. for the redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of the Cr.P.C. Such powers can be exercised to secure the ends of justice and to prevent the abuse of the process of Court. However, such expressions do not confer unlimited/unfettered jurisdiction on the High Court as the 'ends of justice' and 'abuse of the process of the Court' have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the Courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in course of administration of justice as provided in the legal maxim "quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest". However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the Court, could be in the interest of justice as the statutory provision is not intended to by-pass the procedure prescribed. [Vide: Lalit Mohan Mondal and others Vs. Benoyendra Nath Chatterjee, MANU/SC/0173/1981 : AIR 1982 SC 785; Rameshchandra Nandlal Parikh Vs. State of Gujarat and another, MANU/SC/2289/2006 : AIR 2006 SC 915; Central Bureau of Investigation Vs. Ravi Shankar Srivastava, IAS and another, MANU/SC/8405/2006 : AIR 2006 SC 2872; Inder Mohan Goswami and another Vs. State of Uttaranchal and others,MANU/SC/7999/2007 : AIR 2008 SC 251; and Pankaj Kumar Vs. State of Maharashtra and others, MANU/SC/7818/2008 : AIR 2008 SC 3077].

9. Every trial must be a fair trial and fair trial is the theme song of provisions of Criminal Procedure Code. The concept of fair trial cannot vary from case to case, accused to accused and person to person. It has to be a consistent concept applicable to all cases. In fact, detailed procedure laid down by Cr.P.C. takes care of ensuring fair trial to the accused. Thus, a trial according to Cr.P.C. has to be considered a fair trial. It is only if provisions of Cr.P.C. are not followed, one can say that the trial is not fair trial. An important facet of fair trial is that trial must conclude within a reasonable time and it must not be fair only to the accused but must be fair to the society, to the victim and to the witnesses. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code".

10. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. Therefore, when the section talks of the document being necessary and desirable, it is implicit that necessity and desirability of such document is to be examined by the Trial Court considering the stage when such a prayer for summoning and production is made. In view of the aforesaid discussions, this Court does not find any error committed in passing the impugned order. The petition is accordingly dismissed. Of course the petitioner/accused shall have a legal right to defend and prove his innocence by leading cogent and reliable evidence at subsequent stage of defence in the trial which may be considered by the Trial Court in proper perspective and the case shall be decided in accordance with law.

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