Prakash Narayan Pandey S/o Late Dwarika Prasad Pandey Aged About 63 Years R/o Near v. 1 - Anantram Mishra S/o Late Vishu Prasad Mishra Aged About 70 Years R/o
Case Details
1 2025:CGHC:6046 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 2154 of 2024 Prakash Narayan Pandey S/o Late Dwarika Prasad Pandey Aged About 63 Years R/o Near Rambhatha Church, Raigarh, District- Raigarh, Chhattisgarh. ... Petitioner versus 1 - Anantram Mishra S/o Late Vishu Prasad Mishra Aged About 70 Years R/o Ashok Nagar Bilaspur, Police Station- Sarkanda District- Bilaspur Chhattisgarh. 2 - Praveen Mishra S/o Anant Ram Mishra Aged About 37 Years R/o Ashok Nagar Bilaspur, Police Station- Sarkanda District- Bilaspur Chhattisgarh. 3 - Vimal Mishra S/o Anant Ram Mishra Aged About 35 Years R/o Ashok Nagar Bilaspur, Police Station- Sarkanda District- Bilaspur Chhattisgarh. 4 - Smt. Shraddha Pathak W/o Sandeep Pathak Aged About 38 Years R/o N. N. O. Block- C, Flat No. 304, Amlidih Raipur, Police Station- Rajendra Nagar District- Raipur Chhattisgarh. 5 - Smt. Pratima Tiwari W/o Alok Tiwari Aged About 41 Years R/o Shanti Nagar Sakri, Police Station- Sakri, District- Bilaspur Chhattisgarh. 6 - Smt. Urvashi Mishra W/o Anant Ram Mishra Aged About 61 Years R/o Ashok Nagar Bilaspur, Police Station- Sarkanda, District- Bilaspur Chhattisgarh. 7 - State Of Chhattisgarh Through Station House Officer, Police Station- Kawardha, District- Kabirdham Chhattisgarh. ---- Respondents 2 (Cause title is taken from the CIS) ___________________________________________________________
Legal Reasoning
For Petitioner : Mr. Rajeev Kumar Dubey, Advocate For Respondents No.1 to 6 : Mr. Shakti Raj Sinha, Advocate For State-Respondent No.7 : Mr. Karan Bahrani, P.L. ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Order on Board 03/02/2025 1. The present petition has been preferred by the petitioner under Section 528 of the BNSS Act, 2023 being aggrieved by the impugned order dated 10.07.2024 (Annexure A/1 Colly) passed by the learned Additional Sessions Judge (FTC), Kawarda, District Kabirdham (C.G.) in Sessions Case No.01/2023, whereby an application under Sections 91 and 309 of the Code of Criminal Procedure, 1973 preferred by the applicant/complainant has been rejected. 2. Brief facts of this case are that the complainant Prakash Narayan Pandey solemnized marriage of his daughter/deceased-Surya Pandey with accused Praveen Mishra on 06.07.2018 according to social rites and rituals. At the time of marriage, the accused got angry after seeing Apache motorcycle which was given in dowry and he started to say that he had already demanded Royal Thunder World Honda motorcycle in dowry. The complainant and the prominent persons of the society requested 3 then the accused calmed down. But after the marriage, the accused and his family members started to torture the deceased by abusing and assaulting for demand of dowry. After the birth of a girl child, the torture being given to the deceased by the accused and his family members increased. Further, due to which the deceased-Surya Pandey committed suicide by hanging in her house at Kawardha on 14.06.2022. 3. The complainant lodged written complainant to the police, but Police Station Kawardha lodged just only merg intimation No. 56/2022, but did not register FIR against the accused persons. Then the complainant preferred written complaint a to Superintendent of Police, District - Kabirdham (C.G.) on 20.06.2022, but this time also FIR was not registered. Thereafter, the complainant filed WPCR/543/2022 before this Hon'ble Court on 28.06.2022 and the case was listed for 01.07.2022. When the police came to know that WPCR/543/2022 was listed on 01.07.2022, one day before on 30.06.2022, the police of Police Station Kawardha called the complainant and said him to write afresh complaint. Thereafter, registered FIR bearing Crime No.483/2022 for the offence punishable under Section 304-B, 34 of IPC against the accused persons. The complainant withdrew the WPCR/543/2022 on 01.07.2022 because of the police registered the FIR. 4. The charge-sheet was filed against the accused persons/non- 4 applicants No.1 to 6 and Criminal Case No. 4339/2022 was registered by the learned Chief Judicial Magistrate, Kawardha, District Kabirdham (C.G.). It was triable by Sessions Judge, therefore, it was committed and presently the case is pending before the learned Additional Session Judge (F.T.C.), Kawardha, District Kabirdham (C.G.) as Sessions Case No.01/2023 for trial. 5. On 10.07.2024, the complainant filed an application under Section 91 and 309 of CrPC to produce a document first the complainant filed a complaint on 20.06.2020 which was sent by the registered post with acknowledgment and the call detail of seized mobile of deceased at the place of incident {Realme Company mobile handset mobile No.8103609897} and for grant of stay of proceeding of the learned trial Court for examination of the complainant and other material witnesses till disposal of this application, but learned Additional Sessions Judge (F.T.C.), Kawardha, District Kabirdham (C.G.) rejected the application under Sections 91 and 309 of CrPC filed by the applicant/complainant. Hence, this petition. 6. Learned counsel for the petitioner contended that the learned Additional Sessions Judge (F.T.C.), Kawardha, District Kabirdham (C.G.) failed to appreciate the entire facts and circumstances to consider the application under Sections 91 and 309 of CrPC for grant of stay of proceeding of the learned trial Court for examination of the complainant and other material 5 witnesses. He further contended that a reportable judgment dated 12.02.2024 passed by the Hon'ble Supreme Court in Criminal Appeal No. 86/2024 arising out of SLP Criminal No. 3146/2021, the Hon'ble Supreme Court relied upon the legal preposition by the court in the case of Odisha Vs. Devendranath Padhi, 2005 Vol.1 SCC 568 in which the 3-judges bench of the Court has held as under :- "25. 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". 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 6 production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof." 7. Looking to the above mentioned facts and grounds and in view 7 of the order of the Hon'ble Supreme Court, the application under Sections 91 and 309 of CrPC filed by the applicant/complainant before the learned trial Court may kindly be allowed. It is, therefore, most humbly and respectfully prayed that this Court may kindly be pleased to allow this application and further be pleased to quash/set-aside Annexure A-1 Colly., in the interest of justice. 8. On the other hand, learned counsel for the respondents oppose the submission of learned counsel for the petitioner would submit that trial Court has rightly dismissed the application of petitioner filed under Sections 91 and 309 of CrPC, which does not call for any interference. 9. I have heard learned counsel for the respective parties and perused the impugned order passed by the trial Court and other material available on record with utmost circumspection. 10. Considering the facts of the case, submission made by the learned counsel for the petitioner and from perusal of the impugned order, it is evident that after taking into consideration, the learned trial Court has rejected the application under Section 91 & 309 of CrPC filed by the complainant on the ground that, “on perusal of Sections 91 and 309 of CrPC under the application submitted by the applicant, it is seen that the relief sought by the applicant in the said application, in a way, the 8 earlier application submitted in respect of the same relief has been rejected by the said court on the basis of merits and against the said order, a petition has been filed before the High Court of Chhattisgarh, Bilaspur, the same is pending. In the case, the applicant had submitted an application for additional investigation with the intention of summoning the documents which were requested to be summoned under Section 91 of CrPC, which has been rejected. In the light of the above facts, there appears to be no proper basis for considering the application submitted by the applicant.” 11. Further considering the fact that the date of incident is 14.06.2022, with the flux of time as 2 ½ years have been passed, it is not possible to make available the call details desired by the petitioner. 12. Now with respect to the prayer under Section 91 of CrPC for producing the letter dated 20.06.2022 addressed to the Superintendent of Police, District - Kabirdham (C.G.) to register the FIR against the accused persons and to read in evidence at the time of marshaling of evidence during declaration of judgment, this Court is of the considered opinion that the said prayer of the petitioner is appears to be genuine and the same is allowed and the trial Court is directed to call the aforesaid letter dated 20.06.2022 from the Superintendent of Police, District - Kabirdham (C.G.) and mark as a document. 9 13. With the aforesaid direction, the instant petition is partly allowed
Decision
and disposed of. Sd/- (Arvind Kumar Verma) Judge Vasant