Bombay High Court
Satyanarayana Rani vs National Investigation Agency And Anr on 10 July, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:28835-DB
1/36 APEAL 18-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.18 OF 2022
WITH
CRIMINAL APPEAL NO.459 OF 2023
Satyanarayana Rani .. Appellant
Versus
National Investigation Agency and Ors .. Respondents
...
Mr.Yug Mohit Chaudhry for the Appellant.
Smt.Aruna Pai a/w Mr. Sandeep Sadawarte for respondent NIA
Dr. A.A. Takalkar, APP for the State.
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 10th JULY, 2024
ORDER (PER BHARATI DANGRE J.):-
1 The two appeals listed before us are filed by the appellant Satyanarayana Rani, aged 72 years, who was arraigned as an accused in F.I.R. No. RC-02 of 2019, registered by the National Investigation Agency (NIA) on 25/06/2019, which culminated into filing of charge-sheet under Section 173 of Code of Criminal Procedure, 1973, before the Special Judge, under the National Investigating Agency Act, 2008, as against 8 arrested and 8 wanted accused.
The final report/charge sheet No.4/2019, filed on 4/12/2019 invoked section 120B, 121, 121A, 147, 148, 149, 302, 353, 427 and 34 of IPC, Sections 3, 4, and 5 of the Explosives Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:10 ::: 2/36 APEAL 18-22.doc Substance Act, Sections 16,17,18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 (for short 'UAPA') The appellant is charge-sheeted as accused no.2, having been arrested on 11/06/2019, by Purada Police Station, District Gadchiroli. At the time of filing of charge-sheet, he was lodged at Mumbai Central Prison, Arthur Road. However at present, by an order passed by this Court on 15/07/2022, he is enlarged on bail.
2 Criminal Appeal No. 18 of 2022 is filed, by the appellant, being aggrieved by the order passed by the Special Judge, NIA on 20/08/2021 rejecting his application for discharge filed under Section 227 of the Code of Criminal Procedure, 1973, whereas Appeal No. 459 of 2023, is filed for quashing and setting aside the order dated 25/08/2022, passed by the Special Judge on Exhibit 129, in the NIA Special Case No. 6 of 2019, thereby allowing the application filed by the prosecution and permitting production of photocopies of the statements of witnesses and other additional evidence to be taken on record.
We have heard the counter arguments advanced by the learned counsel Dr. Chaudhry representing the appellant in both the appeals and Ms. Aruna Pai, learned counsel for the NIA.
3 A landmine blast on a small culvert/bridge, near Jambulkeda village, on Kurkheda to Purada road, Gadchiroli, on 1/05/2019, resulted in death of 15 Police personnel and one civilian driver, and this incident resulted in registration of C.R. No. 19 of 2019, invoking Section 302, 353, 143, 147, 148, 149, 120B and 427 of IPC, along with the relevant provisions of the Arms Act, 1959, Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:10 ::: 3/36 APEAL 18-22.doc Explosives Act, 1884, Maharashtra Police Act, 1951, and Section 16, 18, 20, and 23 of Unlawful Activity (Prevention) Act, 1967.
The crime was registered against the members of the banned organization Communist Party of India (Maoist), against various named persons and other 90 to 100 Naxals in green, black colour uniform armed with weapons.
During the course of investigation, the accused No.1 Narmadaakka, the present appellant (A-2) along with 6 other accused were arrested by the State Police.
The investigation of the subject C.R. was carried out by NIA, in pursuance to order dated 24/06/2019, passed by the Ministry of Home Affairs, Maharashtra State, as the investigation was transferred to NIA and the case was re-registered as RC-02/2019/ NIA/Mum on 25/06/2019, and the further investigation was carry out.
4 During investigation it is revealed that accused No.1 Narmadaakka along with the other accused persons including the present appellant, being arraigned as accused no.2, were either members and/or supporters of the Communist Party of India (Maoist), which was a strong believer that the Indian State is being run by collaboration of imperialists, comprador bourgeoisie and feudal lords. Their eventual objective was to establish a "Jantana Sarkar" i.e. 'people's government' via revolution, supported by commitment of protracted armed struggle to undermine and to seize power from the State. Investigation reveal that the CPI (Maoist) was founded on 21/09/2004, with the merger of Communist Party of India (Marxist-Leninist) People's War (People's War Group), and the Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:10 ::: 4/36 APEAL 18-22.doc Maoist Communist Centre of India (MCC).
The Government of India banned the CPI (Maoist) under the Unlawful Activities (Prevention) Act, 1967, by categorizing it as a terrorist organisation on 22/06/2009, as a result the Communist Party of India with all its formations and front organisations, Maoist Communist Centre (MCC), all its formations and front organisations are also banned under the Act of 1967, being designated as 'terrorist organisations'.
5 The investigation revealed that the CPI(Maoist) was working in a systematic manner and comprised of committees at different levels, with Central Military Commission (CMC) being its armed body created to attack the Government forces and the central technical committee is assigned the responsibility of procuring weapons and making IED from explosives procured from government armed forces and there is also a publication division of CPI (Maoist).
The investigation established that the arrested accused Narmadakka accused no.1 and Satyanarayana Rani accused no.2 are the members of Dandakaranya Special Zonal Committee (DKSZC) of CPI (M).
On the investigation being completed, the charge-sheet was filed, which is placed before us.
6 The charge-sheet has compiled the material collected during investigation and the relevant extracts thereof are reproduced by us to reflect upon the strategies adopted by the banned organisation CPI (Maoist) and the role attributed to the appellant:-
Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:10 ::: 5/36 APEAL 18-22.doc "17.5 During the course of investigation, it is revealed that the banned organisation CIP (Maoist) and its members do not believe in peaceful talk and focuses on capturing political power through protracted armed struggle based on guerrilla warfare. For the said purpose they have attacked and killed many government security forces from time to time and looted their weapons, ammunition, walkie-talkie etc. They also attacked and looted explosives and acquired materials required to prepare Improvised Explosive Device (IED). During such ambush, the Naxal members of CPI (Maoist) also get killed. During one such incident on 23 rd April, 2018, 40 naxal members killing by security forces due to which the CPI (Maoist) wanted to take revenge from the Government of India.
17.6 During the course of investigation, it is established that the arrested accused Narmada Akka (A-1) and Sathyanarayan Rani (A-2), both member of Dandkaranya Special Zonal Committee (DKSZC) of CPI (M) and other naxals and the office bearers of CPI (Maoist) held a meeting in the last week of July 2018 and planned to attack the security forces at Aarewada Jungle area in Gatta (J) with approximately 300 naxal members from various groups to take revenge of killing of 40 naxals. The said meeting was headed by Sonu Dada (WA-1), Narmadakka (A-1) and participated by Sathyanarayana Rani (A-2), DKSZCM/incharge of Dandkaranay Publication team/incharge Prabhat Editorial team all Divisional Committee (DVC) Secretary and Divisional Committee Members of Gadchiroli namely Girdhar, DVC Coy-10, Rupesh, DVC Coy-10, Laxman, DVC Coy-10, Ramko, DVC, Gatta LOS, Vilas Kolha, DVC, Tipagarh dalam, Surjannakka, DVC-Kasansur, Suklala Parchake, DVC- Chadgaon dalam, Dinkar (WA-3), DVC-Korchi Dalam, Yashwant Boga, Tipagarh ACS (Area Committee Secretary), Rakesh Achla, ACS-Chaadgaon, Sandip Vadde, ACS-Kasansur, Ranjit Lakda, DVC PL No.3, Satish (WA-2), CYPC (Coy) Platoon Commander-) Coy-4, Jayya Buri Padda- CYPC-Coy-4. During this meeting it was conspired and planned to use cooker bombs for killing the police party.
17.7 During the course of investigation, it is also revealed that, in pursuance of said conspiracy , a training camp was arranged in third week of July 2018. One surrendered Naxal alongwith i) Satish (WA-2), ii) Suraj Narot, r/o Battehur, Jadapapda, iii) Bapur Gadde, r/o South Gadchiroli, iv) Durgesh (WA-4), v) Bandu Gota, r/o Gorgutaa, Gatta (Jambia), vi) Mahesh @ Shivaji Raoji Gota, r/o Regadi Gutta, SPS Kasansur, vii) Gokul Madavi, DVC, Commander Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:10 ::: 6/36 APEAL 18-22.doc Coy-4 attended 2 days training regarding preparation of IED/bomb, booby trap, remote connection, mine planning etc in Kahapur Jungle at Abuj Maad area. Naxal Mangtu, (r/o Andhra Pradesh) & Aaytu, (r/o Baster) were instructor of said training. 17.9 After training, in pursuance of the said conspiracy, it was designed to use cooker-bomb. But the said operation was withdrawn due to overflow of Paralkotta river, due to heavy rain. Though, the said naxals of CPI (Maoist) could not succeed in their plan, as in two separate firing incidents cooker bomb and other explosive items got seized from the naxals, they continued their endeavour to take revenge and waited for suitable opportunity. 17.10 During the course of investigation, it is also revealed, that the said naxals of CPI (Maoist) did not want the electoral method of forming the government and in fact directed the villagers not to participate in the General Elections of 2019 to be held in the area. However, in spite of said ban called by the naxals, elections took place peacefully in Gadchiroli area with the support of general public, due to which the said naxals of CPI (Maoist) got more annoyed and decided to take revenge.
17.12 During the course of investigation it is revealed that in pursuance of the above conspiracy hatched by the banned organization CPI (Maoist) and the members/ supporters of the said organization, a decision was taken to burn some vehicles at some place and when the police persons will move towards the place of incidence in order to carry out investigation or maintain the law and order, kill the said police persons by explosion of IED planted enroute in order to take revenge with the Government of India. 17.13 It is further revealed that the arrested accused persons Narmada Akka (A-1) & Satyanarayana Rani (A-2) through wanted accused persons of Korchi Dalam, Tipagad Dalam and Company-4 including wanted accused Sonu Dada (WA-1), Satish (WA-2), Dinkar (WA-3), Durgesh (WA-4), Mangesh (WA-5), Prakash (WA-6), Anil (WA-7), Kishan (WA-8) and other naxals of the said banned organization CPI (Maoist) operating in the Gadchiroli region decided to execute the above plan in coordination with arrested accused persons Dilip Hidami (A-3), Somsay Madavi (A-5), Kisan Hidami (A-6), Sukharu Gota (A-7), Parasram Tulavi (A-4), Kailash Ramchandani (A-8) and wanted accused persons Satish (WA-2), Durgesh (WA-4), Mangesh (WA-5), Prakash (WA-6), Anil (WA-7), Kishan (WA-8), who ar part of larger conspiracy and supporters of Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:10 ::: 7/36 APEAL 18-22.doc CPI (Maoist)."
7 Perusal of the Charge-sheet would reveal that the accused persons including the present appellant, the members/supporters of banned organisation, have conspired to destabilise and overthrow the Government of India and the accused Narmadaakka, Satyanarayana Rani and Sonu Dada, the middle level cadre members of CPI (Maoist), in furtherance of direction of their senior cadre members, are accused of indulging in the activity of killing police personnel, in co-ordination with military wing of CPI (Maoist).
In 65 FIRs, Narmadaakka (A-1), is named along with her other naxal associates and the Government had even declared an award for giving information about Narmadaakka, Sonu Dada (WA-
1).
Sanction has been granted to prosecute the accused persons under Section 45 (1) of the Unlawful Activities (Prevention) Act, 1967, and also under Section 7 of the Explosives Substances Act, 1908 and Section 197 of the Code of Criminal Procedure from the competent authorities.
The first charge-sheet was filed on 4/12/2019, whereas on carrying out further investigation, a supplementary charge-sheet also came to be filed on 24/09/2020.
8 The case of the appellant as presented before us through Dr. Chaudhry is to the effect that, from the material collected during investigation, he is not named in the FIR, but he came to be arrested in Hyderabad on 11/06/2019. Upon his arrest, on 19/06/2019, the Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 8/36 APEAL 18-22.doc house in which he along with his wife (Narmadaakka accused no.1) were residing in Hyderabad was searched and various electronic items and an amount of Rs. 10.32 lacs in cash were seized.
The first Charge-sheet was filed on 4/12/2019, and on 7/12/2020, the DIG, NIA granted approval for invocation of MCOCA.
Confessional statement of co-accused, was recorded under Section 18 of the MCOCA, but according to Dr. Chaudhry, even this confession do not attribute any role to the appellant and he is not even named.
Further, even in the supplementary charge-sheet filed in September, 2020, according to Dr. Chaudhry, neither his name has surfaced nor any document is included, which would incriminate him and therefore, he has assertively canvassed before us that in absence of any material, in the charge-sheets, an application for discharge was preferred, but it was rejected on 20/08/2021, and therefore Criminal Appeal No. 18 of 2022 is filed.
9 Dr. Chaudhry has submitted that, in absence of any material, pointing out to the participation of the appellant in the act connected to the IED blast dated 1/05/2019, as even going by the case of the prosecution, the appellant was not involved in planning, procurement, planting, monitoring of vehicles or execution of IED blast in any way, nor any single activity is attributed to him, in being a part of the conspiracy meeting held in July, 2018, admittedly the conspiracy was abandoned, but the learned Special Judge has relied upon the following circumstances to reject his application for Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 9/36 APEAL 18-22.doc discharge;
"i) That the Appellant attended a meeting in July 2018 meeting in Musparshi-Tekkametta-kuddur forest area wherein a decision was taken to kill security forces in Aarewade Jungle by using IED in order to avenge killing of 40 naxals on 23/4/2018.
ii) That the Appellant and his wife were in the possession of Rs.
10.32 Lakhs despite having no source of income.
iii) That the Appellant was an active member of the Dandakaranya Special Zonal Committee and a member of the banned organisation CPIM.
iv) That the Appellant was involved in collecting funds for CPIM and disbursing them to the various dalams."
In addition, according to him, the learned Judge has also relied on the following material/documents in the charge-sheet, while he rejected his application for discharge;
"i) Statement u/s 161 of KW7 to show the Appellant's participation in the July 2018 conspiracy meeting.
ii) Confessional Statement u/s 18 MCOCA of Accused no.9 to show the Appellant's participation in the July 2018 conspiracy meeting.
iii) House search and seizure panchnama dated 19/06/2019 to show the seizure of Rs. 10.32 Lakhs from the Appellant's house."
Dr. Chaudhary would submit that when neither KW 7 nor any other witness has named the appellant and since nothing incriminating has been recovered from him, the impugned order refusing his discharge is perverse and without application of mind.
10 The legal principles applicable in regard to application filed under Section 227 of Cr.P.C, seeking discharge by an accused, are by this time well settled, through various authoritative pronouncements.
Ashish
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The foremost principle, which is well accepted while deciding such an application is about the probative value of the material not to be gone into, at the time of framing of the charge and the material brought on record by the prosecution has to be accepted as true. There must exists some material for entertaining a strong suspicion, which can form the basis for drawing of the charge and refusal to discharge the accused.
It is trite position in law, that the Judge has to merely sift the evidence placed before him in order to find out whether or not, there exist sufficient ground for proceeding and this evidence would consist of the statements recorded by the police or the documents produced before a Court. The Court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the Court, however this would not entitle the Court to make a roving inquiry into its pros and cons. It is also equally well settled that the defence of the accused is not to be looked into at the stage, when the accused seek discharge under Section 227 of the Code, which contemplate that the record of the case 'is to be perused', which is understood to cover the documents and evidence if any, produced by the prosecution. The Code of Criminal Procedure do not give any right to the accused to produce any document at the stage of framing of the charge, and the submission of the accused is to be confined to the material produced by the police.
Section 227 of the Code makes it evidently clear that if, upon consideration of the record of the case and the documents submitted therein, and after hearing the submissions advanced on behalf of the accused, and the prosecution, there is no sufficient Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 11/36 APEAL 18-22.doc ground for proceeding against the accused, he shall be discharged by recording reasons in doing so. However, if after such consideration and hearing, the Judge is of the opinion that there is a ground for presuming that the accused has committed the offence, he shall frame the charge. The sufficiency of grounds would take within its fold, the nature of evidence collated by the police or the documents produced before the Court, which ex-facie disclose that there are suspicious circumstances against the accused, so as to frame charge against him.
11 In order to arrive at such a decision, it is not open for the Court to enter into pros and cons of the matter, or into weighing and balancing the evidence and appreciating the probabilities, which the Court may undertake once the trial commence.
In one of the recent pronouncement by the Hon'ble Apex Court in case of State of Rajasthan vs. Ashok Kumar Kashyap (2021) 11 SCC 191, their Lordships of the Apex Court with approval referred to its earlier decisions and observed thus:
"9. While considering the legality of the impugned judgment and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to. 9.1 In the case of P. Vijayan (Supra), this Court had an occasion to consider Section 227 of the Code of Criminal Procedure. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the Accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the Accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 12/36 APEAL 18-22.doc that there is sufficient ground to proceed, he will frame a charge under Section 228 of Code of Criminal Procedure, if not, he will discharge the Accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 9.2 In the recent decision of this Court in the case of M.R. Hiremath (supra), one of us (Justice D.Y. Chandrachud) speaking for the Bench has observed and held in paragraph 25 as under:
25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 Code of Criminal Procedure. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, MANU/SC/001/2014 : (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held : (SCC pp. 721-22, para29)
29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and no whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the Court has to come to the conclusion that the Accused has committed the offence. The law does not permit a mini trial at this stage."
12 Recording that at the stage of framing of charge, it has to be seen whether a prima facie case is made out, and from the facts of the case, considering the material on record including the transcript Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 13/36 APEAL 18-22.doc of the conversion between complainant and accused and the learned Special Judge, having found that there exist prima facie case under Section 7 of the Prevention of Corruption Act, and the charge was framed, it was held that the High Court had erred in considering whether on the basis of the material on record, accused is likely to be convicted under Section 7 of the PC Act or not.
The judgment of the High Court discharging the accused on being found to be unsustainable was set aside.
13 In the wake of the well settled position in law, when we have flicked through the order passed below Exhibit 57, an application seeking discharge, the learned Special Judge, has referred to the material in the charge-sheet, which disclose that after the arrest of appellant on 11/06/2019, on 19/06/2019, his house with his wife, accused no.1, was searched and various electronic items and cash amount of Rs. 10.32 lakhs were seized.
Connecting this seizure, to the accusation that the appellant along with the co-accused was part of larger conspiracy, which resulted into a terrorist act, coupled with the evidence collected during investigation, that the appellant had participated in a meeting, where a conspiracy was hatched in the month of July, 2018 under the leadership of accused no.1 and wanted accused Satish, to ambush the security forces and revenge the killing of 40 naxals, the evidence justified framing of charge.
The claim of the appellant that he has not been named by any witness nor any incriminating material is seized at his instance, and no role was attributed to him in either planning or execution of Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 14/36 APEAL 18-22.doc landmine blast, and the allegations of attending the meeting was in July 2018, is of no consequence, since no act was committed pursuant to this alleged conspiracy was rejected while refusing discharge and the impugned order is based on the accusation of conspiracy hatched, resulting into a terrorist act as the appellant is charged for being one of the conspirator and supporter of CPI (M), a banned organisation.
14 Responding to the serious objection that the confessional statement of the co-accused does not name the applicant being member of the conspiracy, Ms. Pai for NIA had pointed out to us the strategy of CPI (M), to use nick names/assigned names, and according to her in the confessional statement of the co-accused, he has been named in the charge-sheet as 'Satyanarayana Rani', @ Kiran @ KiranKumar @ Sudhakar.
Heavily relying upon the confessional statement, which reveal that the appellant had attended the meeting held in the month of July 2018 in the area of Musparshi-Tekkametta-Kuddur forest area, she would submit that, this statement is indicative that the appellant, and accused no.1 Narmadaakka and others had seconded the proposals given by Sonu Dada to take revenge of Kasansur Boriya encounter and to recruit new Naxals, so as to cause maximum loss to the police party and in the said meeting, it was conspired to cause harm to the police party by IED blasting.
She also invited our attention to the statement of KW-7, which lend support to the case of prosecution, along with the confessional statement of accused Salim @ Dinkar @ Shivaram Gota.
Ashish
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15 In light of the rival contentions advanced, we have
perused the order impugned, refusing the discharge to the appellant.
Dealing with an argument that as per confessional statement of the co-accused and the statement of KW-7, the act alleged to be committed in light of the conspiracy, stood withdrawn on account of overflow of Paralkotta river, and it was abandoned and therefore there is no evidence, since the conspiracy was not given effect to, we notice that the learned Judge has failed to accept the submission by recording that the mere fact that the act conspired was not given effect to, at that relevant time, did not wipe out the effect of the conspiracy, as subsequently the conspiracy is given effect to, through a different act.
16 The charge-sheet has accused the appellant along with accused no.1 Narmadaakka along with another accused, WA-1, being involved in collecting funds for a banned organisation CPI(M) as well as the distribution of the said funds to various dalams/Naxal companies/Naxals for their activities. In this activity, it is alleged that arrested accused Narmadaakka(A-1), Satayanarayana Rani, present appellant received funds out of which Rs. 10.32 lakhs were seized on 19/06/2019, which were originated from the proceeds of terrorist activity of CPI (M) and its members.
The charge-sheet further reveal as under :-
"18.3 That during investigation, it is also revealed that the arrested accused Nirmala Kumari Uppuganti @ Narmadaakka @ Alluri Usharani (A-1) and other arrested as well as wanted accused persons are members of Organized Crime Syndicate. They are involved in naxal activities in various States of India including Maharashtra. This organized crime syndicate is also indulging in the commission of Organized crime for themselves and for their Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 16/36 APEAL 18-22.doc Organized Crime Syndicate to promote Insurgency and for other advantages.
18.4 That during investigation it is revealed that being a member of Organized Crime Syndicate, arrested and wanted accused persons have committed series of serious crimes with the intent to spread fear psychosis and terror in the minds of people. 18.5 That during investigation it is revealed that member of the Organized Crime Syndicate i.e. members of the Communist Party of India (Maoist) conspired to take revenge of the killing of 40 Naxalites by security persons in an ambush on 23.04.2018 as well as to destabilise and out throw the Government formed as per Indian Constitution, by taking arms in hand."
The charge-sheet also allege that in furtherance of the conspiracy, which was hatched to take revenge of the killing of 40 Naxalite by arranging an ambush, a team of Naxal with support of people from Lawari Village damaged 27 vehicles of Amar Infrastructure Company parked at Village Dadapur, Gadchiroli in the early morning hours of 01/05/2019, and in furtherance of the conspiracy, they planted an IED on Kurkheda- Purada Road resulting in death of police personnel, while they were on their way from Kurkheda Police Station to Purada Police Station to attend official duty.
17 Though the appellant is alleged to be a participant in the conspiracy held in July, 2018, and this is evident from the confessional statement of Salim @ Shiva @ Shivram @ Dinkar Gota, who has thrown light on the activities of the CPI(M) and he has mentioned Kiran Kumar, the present appellant as the member of DKSZCM and he refers to a meeting held under the Chairmanship of SZC Narmadaakka @ Didi to revenge the attack on Naxals and this witness has specifically stated that he would be in a position to identify all the persons present in the meeting.
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Though, the outcome of the meeting could not be achieved at the relevant time, the investigation has revealed that in pursuance of the conspiracy a training camp was arranged in third week of July, 2018 and one Satish (WA-2), and Durgesh (WA-4) along with other named persons attended two days training regarding preparation of IED/bomb, booby trap, remote connection, mine planting etc in Kahapur Jungle, where Abuj Maad and Naxal Mangtu and Aaytu were instructors for the training. Further in pursuance of the said conspiracy, wanted accused Satish attempted to recruit villagers for furtherance of their cause. During the course of the investigation, it is further revealed that in pursuance of the above said conspiracy hatched by the banned organization CPI (Maoist) and the members/ supporters of the said organization, a decision was taken to burn some vehicles at some place and when the police persons will move towards the place of incidence in order to carry out the investigation or maintain the law and order, kill the said police persons by the explosion of IED planted en route in order to take revenge with the Government of India.
18 The confessional statement of Salim @ Shiva @ Shivram, which referred to a meeting held in the month of July, 2018 in Musparshi Jungle area, according to the witness, was attended by Sonu Dada, CCM and Narmadaakka @ Didi and participated by Kiran, DKSZCM/incharge of Dandakaranya Publication team/ incharge of Prabhat Editorial team and all DVC Secretary. KW-7 has thrown light on the strategy of CPI(M) and the structuring of the committee, which operates through several frontal organisations and there is also a reference of DKSZCM i.e. Dandakaranya Special Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 18/36 APEAL 18-22.doc Zonal Committee, which according to the witness was divided across Southern and Northern Gadchiroli. The witness has specifically stated that he can identify all the participants of the meeting, which was held in second week of July, 2018 in form of a special meeting, where Sonu Dada proposed that they should revenge the encounter of Kasansur Boriya, where 40 naxals were killed, and Narmadaakka suggested that they should make efforts to increase naxal manpower by recruiting new militants from villages and they should be trained in weapon handling bomb making etc. He specifically state that Narmadaakka, Kiran, Girdhar, Vilas Kolha and all present DVC members supported the proposal of Sonu Dada and it was decided to take revenge by killing more Police Personnel by planting IED.
19 Coming to another aspect of recovery of the material which was seized from the house of the appellant, in form of electronic devices and data extracted containing naxal literature, including ideology of CPI(M) their structure, accounts, source of funding, expenses, images/video of the naxals, images of encountered naxals, details of cases registered against naxals, newspaper cutting, surrendered and other naxal related issues, books on naxalbari movement, reports of Communist Party of Nepal, China etc and audio files containing speeches of killing of 40 naxals, on the basis of which, the prosecution intent to prove that the appellant is the active member of the banned organisation.
The Special Judge, has consciously observed that possession of this material by itself would not be sufficient to brand its possessor, as a member of banned organisation, but in light of the confessional statement, if this material is to be looked into, the same Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 19/36 APEAL 18-22.doc is sufficient to constitute a strong suspicion that the appellant was a member of the banned terrorist organisation.
At this stage of discharge, when the role of the Judge is to sift the evidence in order to find out whether there is no sufficient ground for proceeding against the accused, and this evidence may be in any form of statements or documents produced before the Court, and if two views are possible, while looking at the material; one giving rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
At this stage, the probative value of the material cannot be gone into and the material brought on record has to be accepted as true, this material entertaining a strong suspicion, which can form the basis for drawing of the charge and refusing discharge of the accused. Since, it is not open for the accused to rely on material by way of defence, in the wake of the confessional statement of the protected accused mentioning Kiran and since prosecution case is, he is none other than the appellant, coupled with the seizure of Rs. 10.32 lakh from his possession and the material, in form of various electronic items, cumulatively it amount to a grave suspicion of his association with the CPI(M), as he was residing in the same house with Narmdaakka, the main accused, we find no infirmity in the order of the learned Judge refusing to discharge him.
20 The counsel for the appellant has also placed reliance upon the decision passed by this Court on 15/07/2022, in Criminal Appeal No.11/2022, while the bail application of the appellant was allowed, after the Special Judge, NIA had rejected the same on 20/08/2021.
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Appreciating the contention of the NIA, Mr. Chaudhry would submit that the version of witness KW-7, mentioning about a person Kiran was specifically referred to, and it was observed by the Division Bench that from the statement of KW-7 and confessional statement of A-9, it cannot be said that Kiran Kumar, who is alleged to have attended the meeting was none other than husband of Narmadaakka or the present appellant.
Our attention is invited by Dr. Chaudhry to the following observation in particular:-
"23 The statement of a witness relied upon by the learned special public prosecutor i.e. KW2 to show that Kiran was the husband of Narmadakka and is the appellant, cannot be read or relied in the present case, inasmuch as, the said statement is not a part of chargesheet / supplementary chargesheet filed in the present NIA case. The said statement is a statement filed in NIA Case No.414 of 2020 and as such, no reliance can be placed on the said statement, which is not part of the chargesheet / supplementary chargesheet, in the present case."
21 According to Dr. Chaudhry, even the Court made reference to a quarterly magazine of CPI (M), which according to Special Public Prosecutor, reflected its ideology, which was seized from the house of the appellant as from the statement of KW-2, Narmadaakka and Kiran were involved in publication wing of CPI(M) in Dandakaranya. In absence of the magazine being produced or it reflecting name of either the appellant, as a publisher or its editor, this material was discarded by the Court while applying the parameter of sub-section (5) of Section 43D of the UAPA.
This order is heavily relied upon by Dr. Chaudhry to submit that the material contain in the charge sheet was considered by the High Court on 15/07/2022, and since prima facie, the Court Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 21/36 APEAL 18-22.doc was not satisfied about the existence of the reasonable grounds for believing that the accusations against him is prima facie true, the appellant was directed to be released on bail. According to Dr. Chaudry, this order has attained finality and when a competent Court has rendered a finding in that regard, by referring to the material in the charge-sheet.
In the light of this eventuality, according to Dr. Chaudhry, discharge could not be refused to the appellant.
22 Ms. Pai, has however invited our attention to the order passed by the Apex Court, when the NIA approached the Apex Court, which refused to interfere with the impugned order.
We are unable to be persuaded by the argument of Dr Chaudhry, since pertinent to note that while considering an application for bail, and specifically in light of sub-section (5) of Section 43D, which cast a duty on the Court to be satisfied but there are reasonable grounds for believing that the accusations against the person is prima facie true or otherwise and worth it to note that at the stage of bail, referring to the totality of material gathered by the investigating agency, qua the appellant accused, the Division Bench was convinced that prima facie there is no involvement of the appellant/accused in the aforesaid offences, but this must be restricted to the aspect of 'prima facie' case.
Apart from this, in paragraph 28 of the order, the Court was also impressed by one more aspect of the matter, being the appellant more than 70 years old and suffering from several ailments with restricted mobility and cerebral cavernoma. Considering his Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 22/36 APEAL 18-22.doc medical condition, which was noted to be of grievous nature as on account of the element, which resulted in a cluster of abnormal blood vessels in the brain leading to tremors, seizures, and severe headaches and hemorrhages, recording that in absence of any criminal antecedents, his incarceration in jail would endanger his life and health and would amount to gross violation of Article 21 of the Constitution of India, and particularly, when the trial would take long time, and taking into account the period already undergone by him, recording that prima facie case has been made out, the bail application was allowed.
Upon this order being challenged in the Apex Court by the NIA, the Apex Court passed the following order:
" Heard Mr. S.V. Raju, the learned Additional Solicitor General appearing for the petitioner. Ms. Payoshi Roy, learned counsel appears for the respondent no.1.
2. The challenge here is to the bail order dated 15.07.2022. At this point of time, without any compelling reason, we see no reason to disturb the bail order particularly noticing that the respondent is now aged about 73 years with restricted mobility and several medical complications, as was noticed in the impugned order by the High Court. Accordingly the Special Leave Petition is dismissed.
4. However, it is made clear that the observation made in the impugned order dated 15.02.2022 in the Criminal appeal No.11/2022 should be understood only for the purpose of the bail that was granted and should not prejudice either the Prosecution or the Defense, in the Trial.
5. Pending application(s), if any, stand closed."
23 From the reading of the above order, the Apex Court has clarified that the observation made in the order dated 15/07/2022, in the Criminal Appeal would be understood to be made only for the Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 23/36 APEAL 18-22.doc purpose of bail and should not prejudice either prosecution or the defence in the trial.
Evidently, it is seen that while dismissing the SLP filed by the NIA, challenging the bail granted to the accused, the most striking factor, which weighed with the Apex Court, is the age of the accused with his restricted mobility, and severe medical complications.
It is trite position of law that dismissal of an SLP, necessarily, do not amount to upholding the findings of the lower court in the impugned order as held on by the Apex Court in case of Kunhayammed and ors vs. State of Kerala and ors (2000) 6 SCC
359. In any case, by offering an clarification in paragraph 4 that the observations in the order dated 15/07/2022, shall be limited to consideration of bail, we are of the opinion that the said observations shall not come out of the way in deciding an Appeal against the order of discharge and therefore, since we found no infirmity in upholding the order refusing discharge to the appellant, and the parameters of grant of bail in parameters in discharge being based on different considerations, we are not impressed by the argument of Dr Chaudhry, that just because a bail has been granted, the appellant also deserve his discharge. As a result of this, Appeal no. 18 of 2022 is dismissed.
24 Coming to the second Appeal, assailing the order dated 25/08/2022, passed on an application filed by the NIA before Special Judge, we have perused the application.
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After filing of the charge-sheet, on 4/12/2019 and the supplementary charge-sheet on 24/09/2020, the NIA filed an application captioned as 'Application For Filing Additional Evidence' wherein it pleaded as under:-
"2 It is humbly submitted that, the case vide Special Case No.414/2020 @ 871/2020, is pending on the file of Hon'ble Special Court, Constituted under NIA Act 2008, Court room No.25, Mumbai. It is further humbly submitted that the concerned IO in that case has filed material evidence in respect of CPI (Maoist) activities. It is further humbly submitted that, there are a few evidence subsisting on record in the abovementioned case are in connection with the present case and the same has bearing in the present case. 3 It is humbly submitted that the certified copies of the statements of the protected witnesses recorded under Section 161 of CrPC & Photo Identification Panchnama, filed in the abovementioned case, are being adduced by the prosecution as additional evidence in the present case. It is further humbly submitted that the prosecution is required to bring the said evidence in the present case which has proof and relevance in respect of the present case, as such it is just and necessary to bring the same on record, in support of prosecution evidence. Hereto attached the copies of the said statements & Photo Identification Panchnama as Annexure-A."
Along with the above application the following documents were annexed:
Sr.No. Description of Statement/Document Pages (from-to) 1 Certified Copy of the Statement of KW-2 1 to 4 dated 07.08.2020, recorded u/s 161 of Cr P recorded in Special Case No. 414/2020 @ 871/2020. (Original Statement has been filed by NIA Mumbai in SPL Case No.414/2020 @ in Chargesheet dated 09.10.2020 at Annexure-A, Serial No.22, Page No.54 to 56) 2 Certified Copy of the Statement of KW-3 5 to 12 dated 16.08.2020, recorded u/s 161 of CrPC in Special Case No.414/2020 @ 871/2020.
Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 25/36 APEAL 18-22.doc (Original Statement has been filed by NIA Mumbai in Spl Case No.414/2020 @ 871/2020 in Chargesheet dated 09.10.2020 at Annexure-A, Serial No.28, Page No.79 to
86) 3 Certified Copy of the 'Photo Identification 13 to 21 Panchnama' dated 17.08.2020 by KW-3 in Special case No.414/2020 @ 871/2020.
(Original Statement has been filed by NIA Mumbai in Spl Case No.414/2020 @ 871/2020 in Chargesheet dated 09.10.2020 at Annexure-B(Vol-I), Serial No.38, Page No.419 to 427).
25 It is this application which is allowed by the learned Special Judge, by the following reasoning:-
"Heard both sides.
2. Present application is filed by the prosecution producing photocopies of statement of witnesses recorded in Special Case no.414 of 2020 @ 871 of 2020 as mentioned in the list annexure-A filed with the application. It is contended in the application that Special Case no.414 of 2020 @ 871 of 2020 is pending in which concerned Exh. 129 in SC 909/20.
Investigation Officer has filed material evidence in respect of CPI (Maoist) activities. The few evidence subsisting on record in the above mentioned case are in connection with the present case. The certified copies of the statement of protected witness recorded u/ s 161 of CrPC and photo identification panchanama are being adduced as an additional evidence in the present case which is just and necessary to bring on record. Learned SPP submitted that the prosecution is permitted to continue further evidence as per section 173(8) of CrPC. Hence, prayed for allowing the prosecution to file the additional evidence as part of original charge-sheet.
3. Learned advocates for the accused no.2 to 7 opposed the application by filing say Exh. 129-A. It is submitted that the documents pertaining to Special Case no.414 of 2020 were sought to be brought on record by the prosecution as an additional document before the Hon'ble Bombay High Court during the arguments of Criminal Appeal No.11 of 2022 preferred by the accused, but, same Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 26/36 APEAL 18-22.doc was not permitted to the prosecution. It is submitted that prosecution has not followed the procedure as contemplated as per section 173 of CrPC and failed to file the said additional evidence along with the charge-sheet or supplementary charge-sheet so prosecution can not be permitted to file additional evidence at such belated stage.
4. Perusal of the documents produced, they are the photocopies of the statement of witnesses recorded as per section 161 of CrPC in Special Case no.414 of 2020 @ 871 of 2020. As per section 173(8) of CrPC prosecution can further investigate the crime and forward the report of such evidence in the form prescribed. It is not the case of the prosecution that the documents produced are evidence as per the further investigation u/s 173(8) of CrPC. Moreover, the documents produced are the photocopies of the statement of witnesses recorded u/s 161 of CrPC in Special Case no.414 of 2020 @ 871 of 2020. Considering the application, say and submissions, I proceed to pass following order:-
Order
1. Application Exh.129 is partly allowed.
2. The prosecution is permitted to produce the documents on record."
26 Dr. Chaudhry, has expressed his serious displeasure about the manner in which the evidence is permitted to be taken on record, as according to him, it is an evidence collected in some other case, in form of statement of protected witnesses recorded under Section 161 and the photo identification panchnama.
Dr. Chaudhry would submit that in absence of any mechanism, apart from filing of supplementary charge-sheet on carrying out further investigation, pursuant to the filing of the charge-sheet, under Section 173 of the Code, the documents could not have been taken on record in form of additional evidence.
27 The appellant face charge under the UAPA, and Section 43 (c) of the said Act, clearly contemplate that the provisions of Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 27/36 APEAL 18-22.doc Criminal Procedure Code shall apply, in so far as they are not inconsistent with the provisions of the Act to all arrests, searches, and seizures. Section 43(D) prescribe the modified application of certain provisions of the Code.
Thus, barring the said exceptions the investigation shall be carried out in accordance with the Code of Criminal Procedure, and it necessarily contemplate submission of final record of the police officer on completion of investigation under Section 173 of the Code of Criminal Procedure.
Though sub-section (2) of Section 173 prescribe submission of a report with the necessary information contained therein as prescribed, sub-section (8) permit further investigation in respect of an offence despite submission of a report under sub-section (2) to the Magistrate and if the officer in-charge of the police station obtain further evidence, oral or documentary, it is open for him to forward to the Magistrate, further report or the reports regarding such evidence in the form prescribed and in such a case the provision of sub-section (2) to (6) shall as far as may be apply such relation to such report or reports as they may apply in relation to report forwarded in subsection (2).
The aforesaid provision is clearly a permission, left in the investigating officer to carry out a further investigation and submit a report/(s) upon its completion, placing the same before the Magistrate in the same manner when the final report is furnished for the first time.
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28 This is the only manner in which the additional evidence
that is collected, whether oral or documentary, shall be placed before the Competent Court to take cognizance, after the charge-sheet is filed. The prosecution after filing of second charge-sheet, preferred an Application (Exh. 129) and this application being filed for filing 'additional evidence'.
The term evidence, as per the Evidence Act, 1872 means and includes (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to the matter of fact under inquiry; such statements are called oral evidence. (ii) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
29 In this connection it is also necessary to refer to the procedure to be carried out by an officer in-charge of police station when he receives an information relating to commission of cognizable offences being prescribed in chapter XII of Code of Criminal Procedure.
Section 157 of the Code prescribe the procedure for investigation and Section 159 is the power of the Magistrate to direct the investigation to hold a preliminary inquiry into, or otherwise to dispose off the case when he receives the report under Section 158. Section 160 is a power of the Police Officer making an investigation to require attendance before himself or any person, who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required.
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Section 161 empower the police officer making an investigation to examine orally any person supposed to be acquainted with the facts and circumstances of the case, and it casts an obligation upon a person to answer truly, all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
It is open for the police officer to reduce into writing any statement made to him in the course of an examination and he shall make separate and true record of the statement of each such person whose statement he records. These statements are also permitted to be recorded by audio-video electronic means.
30 Section 162 of the Code imposes caveat upon the use of such statement recorded during the course of investigation, by providing that the statement need not be signed by the person making it nor shall any such statement or any record, whether in police diary or otherwise, may be used for any purpose, save as provided, in any inquiry or trial in respect of any offence under investigation at the time when such statement is made.
31 From the aforesaid scheme of Chapter XII of the Code of Criminal Procedure, it is evident that once the information received by an officer incharge of the police station is reduced into writing, he shall initiate the investigation into it, and during its investigation, he may examine any person supposed to be acquainted with the facts and circumstances of the case, which he is investigating and the statement of a witness shall be used at an inquiry or trial in respect of an offence under investigation at the time when statement is made i.e. Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 30/36 APEAL 18-22.doc the particular offence under investigation by the investigating officer and this statement shall not be used except with the permission of the Court, by the prosecution to contradict the witness in a manner as provided in Section 145 of the Indian Evidence Act, and when any part of the statement is so used any part thereof may also be used in the re-examination of such witness, but for the purpose only for explaining any matter refer to in its cross-examination.
Since, the term evidence has a definite connotation i.e. either in form of statements, which the Court permits or requires to be made before, it by evidence, in relation to matters of fact and the inquiry i.e. oral evidence or the documents, which are produced on instructions of the Court, the documentary evidence, the question arises, whether the statements recorded under Section 161 of CrPC in another crime under investigation can be introduced or treated as evidence in a case under investigation under the guise of 'additional evidence'.
Admittedly, as per the prosecution, these statements of witnesses are recorded in another Special Case No. 414 of 2020, which is pending before the Special Court constituted under NIA Act, though co-incidentally, the investigation officer in both the cases is the same.
Admittedly, the evidence which is sought to be brought before the Court, is not the one which is collected by the Investigating Agency, in investigation of Special Case No.6 of 2009, where the NIA after conducting investigation has filed charge-sheet as well as supplementary charge-sheet.
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The statements recorded by an investigating officer in yet other C.R. is sought to be introduced in the present case without filing a supplementary charge-sheet and when this was produced, the learned Special Judge accepted it on record, by inferring that it is not the case of the prosecution that the documents are produced as evidence as per further investigation under section 173 (8) of CrPC, but the prosecution is permitted to produce the documents on record.
32 The above procedure adopted is completely unknown to law, as the application was filed for bringing on record additional evidence, but if the learned Judge has allowed it being taken on record merely as documents, and not as evidence, definitely it shall not be permitted to be read in evidence, as unless the additional material collected by the investigating agency once the charge-sheet is filed, come before the Court through a supplementary charge-sheet, it cannot be accepted as evidence on behalf of the prosecution.
Another difficulty and a serious one is, if the statements recorded under Section 161, during investigation of one case are to be construed as evidence in that case, then by virtue of the restriction created under Section 162, which referred to a statement made by any person to a police officer in the course of investigation (of that case), then such statement can be used for the purpose set out in the proviso appended to Section 161 only in that case and not in any other case.
33 In State of Kerala vs. Babu and ors (1999) 4 SCC 621, the question fell for consideration, whether the Court can summon the case diary of a case under Section 91 for the purpose of contradicting the prosecution witness and whether the restriction imposed under sub-section (2) and (3) of Section 172 would apply to Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 32/36 APEAL 18-22.doc the use of such diary.
With reference to Section 145 of the Evidence Act, it was noted that it is a right of a party in trial to use a previous statement of a witness either for the purpose of establishing a contradiction in its evidence or for the purpose of impeaching his credibility. However, this right given to a party in trial under Section 145 of the Evidence Act, is controlled in criminal trials by the provisions made in the Criminal Procedure code.
The question that arose for consideration was clearly formulated as under:-
"(b) Whether the learned Sessions Judge can call for the police diaries of a case which is not under enquiry or trial before him and permit it to be used by the accused for contradicting a witness examined in another case under trial before him.
(c)Whether Section 162 of the CrPC permits the use of statement recorded under Section 161 of the CrPC in any other proceedings other than the enquiry or trial in respect of the offence for which the investigation was conducted."
34 On behalf of the appellant it was canvassed that the case diary sought to summoned being a case diary not of the case which is being tried in the sessions trial under Section 172 of the Code of Criminal Procedure, and hence it is impermissible for the Court to summon the case diary nor could the statements recorded therein be permitted to be used for contradicting a witness, who is being examined in a trial arising out of a totally different case.
On the other hand the respondent contended that any prior statement of a witness can be used for the purpose of contradicting a witness as provided in Section 152 of the Code and Section 145 of the Evidence Act, 1872. It was contended that since Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 33/36 APEAL 18-22.doc the provisions have been enacted for the benefit of accused, a liberal construction should be given to the provisions of Section 172.
35 While testing this argument, by specifically referring to Section 145 of the Evidence Act, Section 161 of the Code, which permit the police officer, investigating a case to examine any person and reduce the statement in writing, paragraph 6 throw light on the said aspect:-
"6 Section 161 of the Code provides that the police officer investigating a case is entitled to examine any person and reduce the statement of such a person in writing. This statement recorded by a police officer under Section 161 even though is a previous statement for the purpose of establishing a contradiction or impeaching the credit of the witness only in the manner provided for in Section 162 of the Code. The use of the previous statement recorded under Section 161 of the Code is controlled by Section 162 of the Code. The proviso which actually controls the use of Section 162 of the Code reads thus:
"Provided that when any witness is called for the prosecution in such enquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 146 of the Indian Evidence Act, 1872 ( 1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination."
The earlier decision in case of Tahsildar Singh v. State of U.P, was also recounted by recording that even in a criminal trial, the previous statement of witness can be used by the accused for the limited purpose mentioned in Section 162, and the object of enacting Section 162, which was set out in Tahsildar Singh, was reproduced with approval:
Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 34/36 APEAL 18-22.doc "It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits to confine it only to contradict the witness in the manner provided under section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused."
36 On a cumulative reading of Section 162 of the Code with Section 145 of the Evidence Act, it is assertively held that an accused in a criminal trial has the right to make use of the previous statement of a witness including a statement recorded by the investigating agency, during the course of an investigation for the purpose of establishing a contradiction, in the evidence of the witness or to discredit the witness. It is held that, so far as the statement made during the course of investigation of a case being tried is concerned, it poses no difficulty because an accused is entitled under Section 207 of the Code for supply of the copies of the documents referred to in the Section, which include the previous statement recorded under sub-section (3) of Section 161 of the Code. However, he does not have a right as a matter of course in regard to other previous statements; more so, in regard to the statement recorded by the Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 35/36 APEAL 18-22.doc Investigating Agency in a case other than the one that is being tried by the Court.
In paragraph no.11, following conclusion was drawn while referring to the judgment of the High Court, which had held that a statement recorded by an investigating officer in any case which was under investigation, being a statement made under Section 161 of the Code can be used in evidence. It would be apposite to reproduce the relevant observation:
" There can be no quarrel with this approach of the High Court in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial. This is because, as seen from the observations of this Court in the case of Tahsildar Singh (supra), the very object of enactment of Section 161 of the Code and Section 145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witness. This right has not been taken away by Section 172 of the Code and, as noticed above, there is no prohibition in regard to this right of the accused either under the Code or under the Evidence Act. But the question for consideration is, how does the accused exercise this right with reference to a previous statement of a witness made in another case which is recorded by the investigating officer in that case under the provisions of Section 161 of the Code. In our opinion, this right certainly does not flow under Section 172 of the Code nor is the accused entitled to these previous statements under Section 207 of the Code. But, this does not mean that the accused is denied of his limited benefit of using the said previous statements recorded during the course of another investigation."
37 Holding that language of Section 91 is wider than language of Section 172, it was held that a case diary of another case not pertaining to the trial in hand can be summoned, if the court trying the case considers that production of such case diary is necessary or desirable for the purpose of the trial under Section 91 of Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 ::: 36/36 APEAL 18-22.doc the Code, for this reason the appeal filed is dismissed though the impugned order was confirmed for different reason indicated in the judgment.
38 In the light of the above, since the impugned order allowing the application filed by the prosecution for taking additional evidence on record is not legally sustainable, the same is quashed and set aside. As a result, Criminal Appeal No. 459 of 2023 is allowed, by discarding the documents, which were permitted to be placed on record at the request of the prosecution.
(MANJUSHA DESHPANDE,J) (BHARATI DANGRE, J.) Ashish ::: Uploaded on - 23/07/2024 ::: Downloaded on - 25/07/2024 16:09:11 :::