State v. Fariyad), under Section
Case Details
Court No. - 88 Case :- APPLICATION U/S 482 No. - 20101 of 2022 Applicant :- Sartaj Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Mohd. Afzal Counsel for Opposite Party :- G.A.,Rajeev Chaddha Hon'ble Ajai Tyagi,J. This application under Section 482 Cr.P.C. is moved in connection with Session Trial No.425 of 2020 (State Vs. Fariyad), under Section 498A, 304B of IPC and Section 3 and 4 Dowry Prohibition Act, Police Station- Pilkhuwa, District- Hapur with the following prayer:
Legal Reasoning
"(a) Quash the order dated 26.05.2022 passed by Additional District and Session Judge, POCSO Act II, Hapur in Session Trial No.425 of 2020 (State Vs. Fariyad), under Section 498A, 304B of IPC and Section 3/4 Dowry Prohibition Act, Police Station- Pilkhuwa, District- Hapur arising out of Case Crime No.261 of 2019. (b) Allow the application No.11 kha, dated 13.12.2021 of the applicant-first informant and further be pleased to direct the trial court to summon the original documents mentioned in the application no.11 kha." Heard learned counsel for the applicant, learned counsel for opposite party No.3 and learned AGA for the State as well as perused the record.
Legal Reasoning
Learned counsel for the applicant submitted that in the aforesaid case an application No.11 kha was moved by applicant in court below for seeking production of documents, which was rejected by impugned order dated 26.05.2022 by Additional District and Sessions Judge (POCSO Act) II. Learned counsel for the applicant submitted that charge sheet was submitted by investigating officer on 11.10.2020 under Section 498A, 304B IPC and Section 3 and 4 D.P. Act and in charge sheet it was mentioned that investigation is pending against the co-accused Smt. Bhuri, Rafuddin and Tabassum. Cognizance was taken on charge sheet on 15.10.2020. It is next submitted that after submission of charge sheet, on 04.11.2020 informant gave an application with affidavits of some of the witnesses in the office of superintendent of police, Hapur but no receiving was given to informant then the aforesaid application and affidavits were sent through speed post but no action was taken on those application and affidavits After that, informant filed an application under Section 156(3) Cr.P.C. bearing application No.1591 of 2020 for monitoring the investigation. Learned counsel for the applicant further submitted that aforesaid application along with affidavits and application u/s 156(3) Cr.P.C. are relevant and necessary to arrive at just decision of the case. Hence, application No.11 kha was given by informant in trial court for summoning the aforesaid documents as provided under Section 91 Cr.P.C. but this application was rejected by the trial court by way of impugned order without any just and proper reasoning. Learned counsel for the applicant attracted the attention of this Court towards last paragraph of the impugned order and submitted that it is held by trial court that it is not justifiable to summon the aforesaid documents at this stage. Learned counsel for the applicant submitted that application No.11 kha has been moved at the proper stage of the trial and there is no harm if these documents come on record and no prejudice shall be caused to the accused if these documents become part of the record. Learned counsel for the applicant submitted that Section 91 Cr.P.C. provides that if Court considers that any document is necessary or desirable for the purpose of enquiry or trial, it may summon the document from the person in whose possession such document is believed to be. The application and affidavits will not cause any prejudice to the accused if they come on record. Hence, trial court did not apply judicial mind and passed impugned order rejecting the application No.11 kha, which is liable to be quashed. Learned counsel for the applicant relied on the judgement of High Court of Haryana and Punjab in case of Amit Sukhija Vs. Pritpal Singh decided on 24.08.2022 in CRM-M-10937 of 2020 and submitted that in this judgement reference of Apex Court case T. Nagappa Vs. Y.R. Muralidhar, 2008(3) RCR (Criminal) 926 has been given and it is held that the matter would be adjudicated during the trial and not at the stage of deciding of an application u/s 91 of Cr.P.C. The learned trial court has not held in impugned order that the production of documents was irrelevant or not essential for the just decision of the case. Per contra, learned counsel for the opposite party No.3 submitted that in this matter charge sheet was submitted by I.O. against opposite party No. 3 on 11.10.2020 and cognizance is taken by court on 15.10.2020. After the cognizance order application and some affidavits are said to be given in the office of Superintendent of Police, Hapur by the informant. It is admitted by informant that no receiving of document was given to him and documents were later on sent by speed post. Learned counsel for opposite party No.3 contended that no status of service of speed post is produced by informant, hence, it cannot be said that these documents were received in the office of S.P. It is next contended that after filing of charge sheet, an application u/s 156(3) Cr.P.C. was moved by informant to monitor investigation against some persons which was rejected by the court for non-prosecution because informant did not appear in the court after filing the application. It is next submitted by learned counsel for opposite party No.3 that closure report was filed by I.O. regarding the persons against whom investigation was pending and this closure report is not challenged by informant. Now in order to change the statements of witnesses, given to I.O. u/s 161 Cr,P.C., the application No.11 kha is moved by informant as is evident from paragraph 2 of the application. Lastly, it is contended by learned counsel for the opposite party No.3 that as far as production of application u/s 156(3) Cr.P.C. is concerned, the trial court has not denied or refused the aforesaid application to come on record but held that informant may obtain certified copy of this application and file on record. Hence, the application u/s 482 Cr.P.C. is liable to be rejected. It is transpired from the record and arguments of both the parties that in this matter charge sheet was submitted by I.O. against opposite party No.3 on 11.10.2020, on which cognizance was taken by the court on 15.10.2020. It is stated in paragraph 2 of application as annexure No.2 that on submission of charge sheet by I.O. it has come to the knowledge of the informant that I.O. has written the statements of informant and his son u/s 161 Cr.P.C. by his own will and no such statements were given by them to I.O. Due to this reason on 4.11.2020 an application and some affidavits of different persons were given in the office of S.P., Hapur and since no receiving was given to informant, he sent these documents by speed post also on the same day. At the stage of evidence during trial the aforesaid application No.11 kha was moved by informant with the aid of Section 91 Cr.P.C. Section 91 Cr.P.C. reads as 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 proceeding under this Code by or before such Court or 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. The purpose of this provision is to summon any person to produce the document in his power and possession if necessary or desirable for just decision of the case. In the matter in hand, the application and affidavits, sought to be produced, could not be made part of the investigation with regard to opposite party No.3 as they were said to be given in the office of S.P. after submission of the charge sheet and with regard to the persons against whom the investigation was pending these documents were not made part of the case diary as held by learned court below in the impugned order. Although, it is argued before this Court that no prejudice shall be caused if these documents come on record but it is not told by applicant as to how these documents are necessary or desirable rather it appears that the aforementioned affidavits contain different version of statements recorded by I.O. under Section 161 Cr.P.C. as contended by learned counsel for opposite party No.3. The facts of the case cited by applicant Amit Shukhaji (Supra) will not apply to the facts of this case because here facts are different. Hence, the essentiality of these documents is not established by informant-applicant. With regard to the application u/s 156 (3) Cr.P.C., learned trial court has not refused the aforesaid application to be filed on record but it is stated that if informant desires he can obtain certified copy of the application and file it on record. Learned trial court was justified in giving this finding because the application u/s 156(3) Cr.P.C. is part of record of the court and is a public document. Informant may very well obtain the certified copy of this application and file it on record as held in impugned order. On the basis of above discussion, this Court is of the opinion that there is no illegality in the impugned order and there is no force in this application, which is liable to be rejected. Accordingly, the application u/s 482 is hereby rejected. Order Date :- 19.10.2022 Ashutosh Pandey Digitally signed by ASHUTOSH PANDEY Date: 2022.10.20 15:13:20 IST Reason: Location: High Court of Judicature at Allahabad