Madhya Pradesh High Court
Rameshchandra Agrawal vs State Of M.P. And Ors. on 8 July, 2003
Equivalent citations: 2004CRILJ721, 2003(3)MPHT554
JUDGMENT S.L. Kochar, J.
1. This revision has been filed by the father of deceased daughter, who was married with respondent No. 2 Sanjay Gupta, against the order dated 8-4-2003, passed by II Addl. Sessions Judge, Mhow, (Smt. (S.B. Rehman) in S.T. No. 383/2002, whereby rejected the prayer of the applicant for grant of time to appear and examine witness Komalbai, mother of deceased daughter and for issuance of direction to the prosecution to produce the letters written by the deceased seized during investigation by the police and also sent for examination by handwriting expert.
2. The important facts giving rise to this revision are as follows :--
3. The applicant's daughter Geeta was married with respondent No. 2 Sanjay Gupta and died in the house of her in- laws because of burn injuries. On report, police has investigated the matter and filed the charge-sheet against the non-applicant Nos. 2 to 8 for the offences under Sections 498A, 306/34, IPC. It is alleged by the prosecution that she met unnatural death/committed suicide because of ill-treatment for demand of dowry. In the charge-sheet, mother of the deceased named Komalbai is one of the important witness before whom deceased used to disclose about ill-treatment, and demand of dowry. Alongwith charge-sheet, police has also filed seizure memo regarding seizure of number of letters written by deceased to her parents during her life-time describing the events. Police has also filed the letter/memo regarding sending of the seized letters to handwriting expert. But these original letters and handwriting expert report were not filed by the prosecution during the course of trial and A.G.P. and In-charge of the case Shri N.C. Pant did not try to secure these letters and expert report prior to commencing of trial or during trial.
On 8-4-2003, the learned Trial Court has received unserved bailable warrant with the note that witness Smt. Komalbai is sick and admitted in some hospital, Her husband/applicant Rameshchandra Agrawal has filed an application before the Trial Court seeking time for appearance and examination of witness Komalbai because she was unable to appear on 8-4-2003 since she was admitted in Sasi Nursing Home for treatment because of chest pain. He has also filed certificate dated 7-4-2003 duly issued by the In-charge of the said Nursing Home. He has also filed an application for grant of time to get appointment of Special Prosecutor to conduct the prosecution in the present case.
4. Unfortunately, the A.G.P. Shri N.C. Pant instead of supporting the applicant for grant of time to examine witness Komalbai and to produce letters and handwriting expert report which are very important and material evidence for just decision of the case, submitted that the summons and bailable warrant issued to this witness were received back unserved and she was not available. This shows that she has no interest in the case to appear as witness on the point for which she was to be examined before the Court and cited as a witness by the prosecution and some witnesses have been examined on same point. Therefore, now prosecution did not wish to examine and given up this witness. On this date, the A.G.P. Shri Pant has also closed the prosecution case. On the application filed by the applicant regarding issuance of direction for production of original letters written by deceased and its handwriting expert report in the Court by the prosecution, A.G.P. has submitted that he had already got exhibited seizure memo of the letters but no such original letters and handwriting expert report were available with him in the case diary. On the basis of this statement of the A.G.P., the learned Trial Court has rejected the application and fixed the case for accused statement on 23-4-2003.
5. I have heard Shri Vivek Singh, learned Counsel for applicant, Shri G. Desai, learned Dy. A.G. for non-applicant No. 1 State, Shri Umesh Maheshwari, learned Counsel for non-applicant Nos. 2 to 8 and Shri N.C. Pant, A.G.P. present before this Court in person.
6. Now the crucial and important question before this Court is whether the A.G.P. has properly, effectively and consciously discharged his duty to bring all material and important evidence before the Court which is necessary for just decision of the case and whether the learned Trial Court, after knowing these facts and the fact that witness Komalbai is an important and material witness in the fact and circumstances of the case, being mother of deceased daughter and letters written by the deceased prior to her death were seized by the police and also sent for handwriting expert examination but all those original letters and expert report was not filed, right in rejecting the application filed by the applicant and allowing the prayer of A.G.P. to close the prosecution case.
7. Before dealing and answering both these questions, this Court would like to refer two important judgments. One is rendered by Division Bench of this Court in case of Imran Khan v. State of Madhya Pradesh (1994 MPLJ 862) and second one is rendered by Single Bench of this Court in case of Raju @ Rajendra Prasad v. State of M.P. (2002 Cr.LJ 2367). In both these judgments, this Court has in detail dealt with sacrosanct duty of Prosecutor, who is incharge of the case and power of the Trail Court under Section 311, Cr.PC and under Section 165, Evidence Act. Copies of both these judgments were also directed to circulate in pursuance of the Administrative Order passed by Hon'ble the Chief Justice to all Sessions Judges of this State.
8. In the case of Imran Khan (supra), in Paragraph 14, Division Bench of this Court has considered and reproduced the observation made by Supreme Court in case of Ramchander v. The State of Haryana (AIR 1981 SC 1036), as follows :--
"The adversary system of trial being what it is there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. But this he must do without unduly trespassing upon the functions of the Public Prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses."
9. In the case of Raju @ Rajendra Prasad (supra), this Court has in detail dealt with the power of Trial Court under Section 311, Cr.PC and under Section 165 of Evidence Act. Under these provisions, the learned Trial Court has ample power and discretion to interfere and control the conduct of trial properly, effectively and in the manner as prescribed by law. But it appears that the learned Trial Court has not made proper use of both these judgments which were circulated for their future guidance.
10. For the purposes of production of important and material documents, yet there is one more provision in Cr.PC, i.e., Section 91, Cr.PC which empowers the Trial Court to issue direction to concerned person to produce the documents. Section 91 reads as under:--
"91. Summons to produce document or other thing.-- (1) Whenever any Court or any officer-in-charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
11. In the present case, there is no dispute that letters alleged to have been written by the deceased were seized during the course of investigation and its seizure memo has been filed and exhibited. During the course of arguments before this Court, this Court has also put a very specific question to learned Dy. A.G. Shri Desai and A.G.P. Shri Pant that whether any letter/memo was sent for sending these letters to handwriting expert for examination and seeking report, written by Investigating Officer or concerned S.P., is available. They have submitted that such letter is available in the case diary and also filed with the charge-sheet. In view of this, these letters are very important which can help the Trial Court for just decision of the case because these letters were alleged to have been written by the deceased prior to her death. If these letters are found to be written in the handwriting of deceased, then, its contents may go in favour or against the accused and same will give immense assistance for digging out the truth by the Court. But the Court has left the case at the mercy of the A.G.P. and acted merely as an umpire instead of using its power under Sections 91, 311, Cr.PC and under Section 165, Evidence Act and especially when such kind of passiveness of the Court during the course of trial has been condemned by this Court in judgments of Imran Khan (supra) and Raju @ Rajendra Prasad (supra).
12. This Court expresses its great dissatisfaction regarding functioning of the Addl. Sessions Judge, Mhow, before whom this trial is pending. It appears that the learned Addl. Sessions Judge has not gone through both the judgments and also not aware of the above mentioned provisions in Cr.PC and Evidence Act empowering the Court to deal such a contingency especially when prosecution and A.G.P. is not handling the prosecution effectively for helping the Court to come to the right and true conclusion and for just decision of the case.
13. In the present case, role of the A.G.P. is also condemnable. Though witness Komalbai was not served at any time, yet he has given up this witness. As it is mentioned above, she is the mother of the deceased and can throw sufficient light in the case. The learned A.G.P. knowing well that the letters said to have been written by the deceased prior to her death were seized and also sent for handwriting expert, did not make any effort to produce the same before the Court. It was his onerous duty to direct the concerned investigating agency to take effective step to bringing all those letters with handwriting expert report for filing before the Court. He has not done so and on the contrary the poor father of the deceased daughter was required to rush to the Court and praying for production of these letters and handwriting expert report on which A.G.P. has not supported him and simply submitted that letters and handwriting expert report are not available and arc not in his possession.
14. The Delhi High Court in the case of K.C. Sud v. S.C. Gudimani, (1981) 2 Cr.LJ 1779, has held that the Public Prosecutor, the Additional Public Prosecutor and the Assistant Public Prosecutor hold an office. The learned Judge said that:--
"It is public office of trust and therefore, like any other public office, is susceptible to misuse and corruption if not properly insulated. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other."
15. This judgment has been considered and approved by the Supreme Court in the case of Mukul Dalai and Ors. v. Union of India and Ors., (1988) 3 SCC 144, while considering the duty and responsibility of Public Prosecutor and Assistant Public Prosecutor. Again the Supreme Court in the case of Shiv Kumar v. Hukum Chand and Anr., (1999) 7 SCC 467, has in detail enunciated the role and duty of Public Prosecutor.
16. Though, the law is very clear regarding role and duty of Prosecutor and power of the Trial Court regarding its interference and control of the trial and from time to time Supreme Court and this High Court has also elaborately clarified and dealt with such matters, copies of judgments were also circulated to the Sessions Judge to go through the judgment and make proper use of it whenever occasion comes but the impugned order and act of the A.G.P. as well as the Trial Court is clearly establishing that they have not taken any pain to go through all these provisions and judgments there on. It is really a pathetic situation and a matter of great regret that a case of bride burning is being handled by the A.G.P. in such a manner and the learned Trial Court is keeping silence over the matter.
17. In the wake of above factual and legal analysis, the impugned order passed by the Trial Court is set aside and it is directed that the witness Komalbai be examined as prosecution witness and prosecution is also directed to produce seized original letters said to have been written by the deceased alongwith handwriting expert report within a reasonable period and concerned S.P. is also directed to look into the matter for production of all these letters and handwriting expert report before the Trial Court within one month.
18. The revision is allowed in the terms as indicated above.