Delhi District Court
State vs . on 14 December, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.151/10
FIR NO. 161/09
U/S 201/302/364A IPC
PS Prashant Vihar
Unique Case ID No. : 02404R0176252009
State
Vs.
JEEVEK NAGPAL@VEEVEK NAGPAL @SHANKY
14.12.2011
O R D E R:
1. By this order I shall dispose of an application moved on behalf of the accused dated 08.07.2011 (subsequently alleged u/s 91 Cr.PC).
2. It has been submitted in the application that in the present case, electronic evidence in the form of "Call Detail Reports" of mobile phones allegedly of accused and witnesses has been heavily relied upon and it has been stated that police had unfairly withheld the CDR of many important persons/witnesses which are otherwise important for the just decision of the case. It has been further SC No.151/10 Page 1/19 mentioned that CDRs of the mobile phone No.9899902999 of Devender Sharma w.e.f. 18.03.2009 to 28.03.2009, the call details of mobile phone numbers 9818440660 (although incompletely mentioned in the application) and 9910739898 w.e.f. 18.03.2009 to 20.03.2009 and CDRs of mobile phone number 9810222610 of Mahender Kumar Maurya w.e.f. 18.03.2009 to 28.03.2009, are required on behalf of the accused to prove his innocence and to defend him and are essential for cross examination of witnesses and to put his defence effectively and it has been prayed accordingly.
3. The Ld. Special Public Prosecutor filed his written reply to the said application wherein certain preliminary objections were taken to the effect that the application was not signed by the accused and as such, the same cannot be entertained by this court and that the application has been moved solely for the purpose of delaying the trial so as to defeat the very purpose of the trial and that no provision of law has been mentioned in the application by virtue of which the application has been moved and reliefs have been sought. However, in reply on merits, it has been submitted that the case is based on various clinching evidence against accused such as, there was recording of conversation in between accused and PW Devender Sharma and its transcription and the voice of the deceased child wherein the child was found saying to the accused as to what wrong the child has done with the accused and as to why the accused SC No.151/10 Page 2/19 wanted to kill him and that there is recovery of weapon of offence used by the accused and recovery of dead body of the minor child at the instance of the accused and there was last seen evidence also and there was recovery of a car wherein the murder was committed by the accused and there are record of SMS sent by accused on the mobile phone connection of father of the deceased at number 9811092230 and that sample voice of the accused has tallied with the voice recorded in the said conversation between the witness Devender Sharma and accused. It has been further denied that police has withheld the important CDRs, as alleged in the application. It has been further objected that call details of mobile phone connection no. 9899902999 in the name of Devender Sharma have already been relied upon by the prosecution and the remaining call details of the said three telephones are not at all relevant and necessary for the just decision of the case and the accused cannot ask for the call details of the mobile phone connections which have not been relied upon by the prosecution as the prosecution evidence and it has been further objected that Mahender Kumar Maurya is not the witness cited by the prosecution and is a stranger to the prosecution case and thus, the call details of his mobile phone has got no relevancy at all. It has been further objected that at present the prosecution case is at the stage of prosecution evidence which is being adduced by the prosecution to prove its case and the accused SC No.151/10 Page 3/19 can prove his defence on his turn of leading defence evidence, if he desires, as per provisions of Cr.PC only and not prior to that nor the said CDRs are essential for cross examination of the witnesses and it has been prayed that the application may be dismissed.
4. I have heard Ld. Counsel for the accused as well as Ld. Special PP on behalf of the State.
5. It has been submitted on behalf of the accused during the course of arguments that location chart of the said four mobile phones may also be directed to be produced along with the said CDRs and it has been submitted that mentioning a legal provision is not essential in the pleadings as per law of pleadings and it is the sum and substance of the application which is to be seen and it is for the court assisted by counsels for both the parties to search for the provision of law in order to grant or reject the application and in his support, Ld. Defence Counsel has relied upon some judgments of the Hon'ble Superior courts which have been discussed below, with a submission that his application may be treated u/s 91 Cr.PC and he has also informed the court that mobile phone number 9899902999 has been issued by M/s Vodafone and remaining three said mobile phone numbers have been issued by M/s Bharti Airtel Ltd.
6. On the other hand, Ld. Special PP has vehemently argued that SC No.151/10 Page 4/19 the provision of Section 91 Cr.PC cannot be claimed by the accused as a matter of right and it is only at the stage of defence of the accused, as provided u/s 243 r/w Section 247 of the Code of Criminal Procedure (for short "the Code"), that the accused may prove his defence. It has been further vehemently argued on behalf of the prosecution that by way of the present application the accused wants to shoot an arrow in the darkness and there is uncertainty in the submissions of the accused as to what for the said call details are required and Ld. Special PP has also submitted some judgments of the Hon'ble Superior courts which have been discussed below.
7. Section 91 of Cr.PC providing for production of any document or a thing presupposes that the document or thing must be in existence first or capable of being ascertained, then and then only an order with regard to its production or rejection can be passed by any court. In view of the said enacted law, I have conducted a preliminary inquiry, as mentioned in my order dated 25.08.2011, whereby the Nodal Officers of the said two mobile phone companies were summoned in order to know the very existence or otherwise of the said record of the mobile phones and in pursuance of the said order, one Sh. Vishal Gaurav, the Nodal Officer of M/s Bharti Airtel Ltd. informed that he had brought the call detail record of the requisite mobile phone numbers, as mentioned in the application of the accused, and subsequently he also informed that location charts SC No.151/10 Page 5/19 of the said mobile phones of M/s Bharti Airtel Ltd. are also available with the said company and the said company was directed to preserve the said data. Further, Sh. Anuj Bhatia, the Nodal Officer of M/s Vodafone Essar Mobile Services Ltd. submitted that the CDR record of the mobile phone no. 9899902999 is preserved and already on the judicial file of the date 18.03.2009 and record pertaining the date 19.03.2009 up to 23.46.35 hours is also available with the said company and said Mr. Anuj Bhatia also filed his affidavit to that effect that remaining record of the said period is not available with the said company and he was also directed to preserve the said record.
8. The Ld. Special PP has relied upon a judgment of the Hon'ble High Court of Delhi titled Sukhmohinder Singh Sandhu Vs. CBI reported as 2010 (3) JCC 2324 wherein it was held that question of invoking Section 91 at the initial stage of framing of a charge would not arise which is irrelevant at that stage and that Section 91 does not confer any right on the accused to produce document in his possession to prove his defence and that Section 91 of the Code when invoked by the accused, the necessity and desirability would have to be seen by the court in the context of the purpose and that it would also have to be borne in mind that law does not permit a roving or fishing inquiry and it was further held that applications SC No.151/10 Page 6/19 were absolutely vague and as per arguments, it can be gathered that accused persons were trying to aim at an unknown target in darkness and in the said judgment, the judgment of the Hon'ble Supreme Court titled State of Orissa Vs. Debendra Nath Padhi reported as AIR 2005 SC 359 was cited. It was also held that only when the accused discloses the nature of document and its relevance, the court is to decide if the document sought to be summoned was necessary or desirable for the just decision of the case. It was also observed by the Hon'ble Single Judge of the Hon'ble High Court of Delhi that judgments are not to be read as a statute and that each case represents its own problem adjudicated upon by the court and unless and until the High Court and Supreme Court lay down a general principle of law to be followed by the courts below, the judgments have to be considered as adjudication of the particular issue before the court.
9. The further judgment relied upon by the prosecution is that of Hon'ble Supreme Court in Debendra Nath Padhi's case (supra) wherein it was held as follows:
"Any document or other thing envisaged under S.91 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 and desirable. The necessity or desirability would have to be seen with reference to the stage SC No.151/10 Page 7/19 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 S.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. Insofar as the accused is concerned, his entitlement to seek order under S.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 S. 227 what is necessary and relevant is only the record produced in terms of S.173 of the Code, the accused cannot at that stage invoke S.91 to seek production of any document to show his innocence, Under S.91 summons for production of document can be issued by Court and under a written order an officerincharge of 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. Jurisdiction under S.91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose - investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry."
10. In the said judgment of Debendra Nath Padhi's case, the Hon'ble Supreme Court overruled its earlier decision in the case titled Satish Mehra Vs. Delhi Administration and another reported as SC No.151/10 Page 8/19 (1996) 9 SCC 766 wherein it was observed that if the accused succeeds in producing any reliable material at the stage of taking cognizance or framing of charge which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material should be looked into by the court at that stage and overruling the same, the Hon'ble Supreme Court held that the law is that at the time of framing charge or taking cognizance, the accused has no right to produce any material and that Satish Mehra's case (supra) has not been correctly decided.
11. It was in this background, that the Hon'ble Supreme Court dealt with the issue of Section 91 of the Code in Debendra Nath Padhi's case and it was further observed as under:
"In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object"
12. Another judgment of the Hon'ble Supreme Court relied by the prosecution is titled Om Prakash Sharma Vs. CBI reported as 2000 II AD (Cr.) SC 725 wherein the earlier case of Satish Mehra (supra) was relied upon by the Hon'ble Supreme Court and since in the said Debendra Nath Padhi's case, the case of Satish Mehra (supra) was SC No.151/10 Page 9/19 overruled, it is of no use to refer this judgment now as the law laid down in Om Prakash Sharma's case (supra) was substantially overruled by Hon'ble Supreme Court itself in Debendra Padhi's case (supra).
13. From the said judgments cited above, it is clear that Hon'ble High Court of Delhi and Hon'ble Supreme Court were dealing with an issue of consideration of material on behalf of the accused at the time of framing of the charge and it was in this background that Section 91 Cr.PC was discussed in the said case but in the present case, the stage of framing of charge has already been crossed and now admittedly this is a stage of prosecution evidence. As such, I am of the considered opinion that the said judgments of the said Hon'ble Superior courts are of no help to the prosecution because both the said judgments in Sukhmohinder Singh's case and Debendra Nath Padhi's case (supra), the Hon'ble Superior Courts admittedly did not discuss about the applicability of Section 91 of the Code to the subsequent stages of the case and particularly Section 91 viz a viz Section 243 & 247 of the Code although the scope of Section 91 of the Code has been thoroughly discussed in the said judgments, as detailed out above and the law established by the said judgments unquestionably is that Section 91 of the Code cannot be invoked at the stage of framing of the charge. SC No.151/10 Page 10/19
14. The question before this court is as to whether the provisions of Section 91 of the Code can be invoked prior to the stage when the accused enters upon his defence and that as to whether the accused can get produced a document for the cross examination of the prosecution witnesses. No judgment has been brought to my notice on behalf of the prosecution as to how Section 91 of the Code should be used during the stage of prosecution evidence or the defence evidence. However, the Ld. Defence Counsel has relied upon certain judgments in this regard and substantially all the judgments were of the stages of the trial after the framing of the charge. First is the judgment titled Muhammad Rahim Vs. Emperor reported as AIR 1935 Sind 13 which is a judgment of the Hon'ble Full Bench and at that time the relevant provision was Section 94, analogous to present Section 91 and Section 257 analogous to present Section 243 or 247 of the Code and the Hon'ble Full Bench was substantially dealing with the same question as has arisen before this court and the two Hon'ble Judges referred the matter to the Hon'ble Full Bench on this very issue and Hon'ble Division Bench cited an example as follows:
"It appears that in such a case as this in which the prosecution witnesses are called from a long distance that inconvenience will be peculiarly great. It will be necessary for the witnesses to come for the first time to be examinedinchief. They must then come a second time to be crossexamined: in the course of that cross SC No.151/10 Page 11/19 examination it will be discovered that owing to the absence of the documents which the accused have not until now been able to obtain, it would be necessary to let these prosecution witnesses go home and wait until the accused has exercised his right under S.257. They will then be obliged to return for a third time in order that they may be crossexamined upon the statements which were made before the police.
The decision of the Division Bench which decided 1914 Sind 135(3) , is one which we, here cannot differentiate and disregard. But we are very doubtful whether the law is therein correctly expounded. As the question is one of considerable importance and is likely frequently to recur, we propose therefore to refer to the Full Bench the following question:
"Whether a Court acting under S.94 may not at any stage call for the production of a document at the request of the accused?"
15. Another Hon'ble Judicial Commissioner of the Division Bench observed as follows:
"Cases frequently arise in which certain documents or things are necessary or desirable for the purpose of assisting the accused in his defence and it would be unreasonable to suppose that the aid of S.94 or S.96, Criminal P.C., could not be invoked to obtain their production.
Now, an accused person has a right under S.138, Evidence Act, to crossexamine a witness called by the adverse party and inter alia Ss 145 and 155, Evidence Act, afford certain incidental rights with regard to crossexamination and are to that extent corrollary to S.138. Under S.145 a witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and if it is intended to contradict him by the writing, his SC No.151/10 Page 12/19 attention must be called to those parts of it which are to be used for the purpose of contradicting him. Under S.155 the credit of a witness may be impeached inter alia by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. It is surely desirable and in the interests of justice that effect should be given to these rights and it would not therefore be in the interests of justice to withhold a prior statement made by a witness which might be utilized for the legitimate purposes of cross examination, unless the law specifically excludes it"
16. As per order of the Hon'ble Full Bench, it was observed as under:
"At the trial in the Court of that Magistrate it was suggested to one of the prosecution witnesses that he had made a certain statement before the police officers; he denied it. An application was then made under S.94 for an order of production of the statements recorded during the departmental inquiry. The learned Magistrate ruled that this request at that stage was premature but that it might be repeated after the framing of the charge. In due course the charge was framed and the application was repeated. The learned Magistrate then ruled that the defence were not entitled to the statements they asked for and he did not consider those statements necessary for the trial. The application was therefore rejected"
17. It was further held that it is no bar to the exercise on that discretion in a trial under the provisions of Chapter 21 before that trial has reached the stage indicated by Section 257. It was further observed that Section 257 and 94 of the Code are not antagonistic, they are interdependent and that Section 94 of the Code affords any party to an inquiry, trial or other proceedings under the Code, the SC No.151/10 Page 13/19 facility of having documents and things produced at any stage of such inquiry, trial or proceedings and that the restriction lies in the fact that the necessity or desirability of the production must be shown to the satisfaction of the court.
18. It was further observed by the said Hon'ble Full Bench as follows :
"The right to crossexamine a prosecution witness includes the right to crossexamine him as to any previous statement made by him in writing or reduced into writing and relevant to matters in question. The method of such crossexamination is regulated by S.145 Evidence Act.
This right, obviously, the accused is not in a position to exercise except upon production of the previous statement of the witness. Again under section 157, Evidence Act, the testimony of a witness may be corroborated by any former statement made by such witness relating to the same matter at or about the time when the fact took place or before any authority legally competent to investigate the fact. An accused person in exercising his right of crossexamining a prosecution witness may find it necessary to corroborate the statement of that witness in Court under the provisions of S.157, Evidence Act, by putting in his previously recorded statement which he has every right to do. This right the accused obviously is not in a position to exercise without production of the previous statement which he desires to use for the purpose of corroboration.
The above documents may not have been produced by the prosecution or used by the prosecution witnesses. Nevertheless, the accused, who has a right to crossexamine the prosecution SC No.151/10 Page 14/19 witnesses, is entitled under the provisions of Ss.145 and 157, Evidence Act, to use these documents in the exercise of the right of crossexamination given to him during that stage of his trial. To deny his claim to the production of such documents would be to deny the accused a right given to him in the procedure prescribed for the trial of his case. In our opinion, a Court exercising its discretion under S.94, Criminal P.C., not only may call for the production of such documents at the request of the accused, but ought to do so, as their production is obviously necessary and desirable for the purpose of the trial"
19. Further, Hon'ble Mysore High Court in the case titled C.M. Armugam Vs. State of Mysore reported as 1961 (2) Cri. L.J. 509 (Vol. 63, C.N. 165) (1), relying upon the said judgment of the Hon'ble Full Bench of Sind held as under:
"In a case instituted on a police report, to which section 251A applies, the accused can, under section 94, apply to the Court for the production of documents in the context of the examination of the prosecution witnesses under subsection 251A(7); his right to apply is not confined to a later stage, i.e., when he has entered upon his defence as provided under subsec.(9). While S.251A(9) deals with the right of the accused at a particular stage, S.94 invests the Court with a discretionary power to be exercised in appropriate circumstances at any stage. Hence, if it becomes necessary or desirable that a prosecution witness should be examined (which term comprises crossexamined and reexamined) with reference to a document or other thing and when the parties themselves are not in a position to produce the document or the thing, the Court can, in exercise of its discretionary power vested in it by S.94, direct the person believed to be in possession or control of the document or other thing to produce it."SC No.151/10 Page 15/19
20. Again, Hon'ble Gujarat High Court, in case titled Mahesh Chandra K. Trivedi Vs. State of Gujarat reported as (2000) 1 GLR 701 held and observed as follows:
"The right given to the Court under Section 91 is undoubtedly different from right given under Section 243(2), Criminal Procedure Code. It cannot be argued that the accused has no right to apply for the production of any document at the stage of framing of charge or at any other stage before the accused had entered upon the defence, as Section 91 Cr.PC gives such a right to the accused independent of the provisions of Section 243(2) Cr.PC. The right given to the accused under Section 91 is the general right and it is in no way, circumscribed or controlled by Section243(2) Cr.PC.
The accused can legitimately refer such document, even while cross examination of any witness by referring such documents. He can recall the witnesses if examined, provided, permitted by the Court and put such question as to certain documents and can carve out the line or alternative line of defence if such documents are brought on record very well in time. The accepted principle of criminal jurisprudence of this Country says that the prosecution should be fair enough and has no privilege to put a curtain on any oral or documentary evidence. The privilege given under Section 91 of the Code of Criminal Procedure if is not used at proper time or stage then, the defence of the accused might be prejudiced."
21. The said judgments of the said Hon'ble High Courts have sufficiently replied the objections of the Ld. Special PP raised in the present case and all objections have been answered in negative. The said judgments even go to the extent of holding that even the alternative defence can be prepared by an accused by using the SC No.151/10 Page 16/19 mechanism of Section 91 of the Code. For example, during the cross examination of a prosecution witness, certain answers revealed the existence of certain material including the documents which may throw light upon the innocence of the accused, then in that event the accused is entitled not only to leave his previous defence but can change his defence altogether during the trial and he has got a right to do so under the law which is based on the simple reason that on the one hand there is mighty institution like the State having all legal, investigative, administrative and infrastructure facilities at its command and on the other hand, there is a single individual having no such facility to prepare his defence and the law strikes a balance between the two conflicting interests by providing that only a dent to be put on the story of the prosecution is sufficient for the discharge of the burden of the accused either by way of showing his innocence or demolishing the case of the prosecution.
22. What would be the probable defence of the accused or what are the questions desired by the accused to be put to the prosecution witnesses cannot be asked in advance. If any objection is there on any question put in the cross examination, the objection must be justified under the Indian Evidence Act or otherwise under any law for the time being in force and that too only at the time when the question has been put to the witness in the witness box to be decided by the Trial Court and corrected or revised by the Appellate Courts. SC No.151/10 Page 17/19 Thus, the objection of uncertainty, as taken by the Ld. Special PP in the present case, is not tenable under the law nor it is supported by the principles of natural justice which cannot be put forward into straight jacket formula and are to be interpreted in a given situation, the basic thread being that no person should be condemned unheard and concept of fair trial also demands that every party should be given full right to show all the arrows in their armories which they intend to use against each other and this right cannot be curtailed on whims and fences of the parties.
23. The Trial Court should not sit idle as umpire instead of using its powers u/s 91, 311 of the Code and u/s 165 of the Evidence Act and such kind of passiveness of the Trial Court have been condemned by the superior courts and I am fortified in my this view by a judgment of the Hon'ble Madhya Pradesh High Court titled Ram Chander Aggarwal Vs. State of MP reported as 2004 Crl. L.J.
721.
24. Similarly, this is no argument at all that an accused should wait till the stage of leading his defence in order to prove his innocence even if a patently untenable deposition by the prosecution witness has been produced on record. The right to lead defence evidence is at the will of the accused and he may not lead the defence evidence but still he may succeed in showing his innocence SC No.151/10 Page 18/19 by way of demolishing the prosecution case using the acid test of cross examination during the trial and this right has been duly recognized by the Evidence Act in various provisions.
25. From the said discussion, I am of the considered opinion that the Call Detail Records and location charts of the said mobile phones are necessary and desirable also in order to bring the truth at the surface and also for purposes of effectively cross examining the prosecution witnesses who have otherwise relied upon the call details suitable to the case of the prosecution. Hence, the application of the accused u/s 91 Cr.PC is hereby allowed and he is held entitled to summon the said call detail records subject to the said availability, as mentioned above and without prejudice to his right to otherwise request for drawing an adverse inference against non production or non availability of some of the said records.
(Announced in the open court on 14.12.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.151/10 Page 19/19