Delhi District Court
Zakir @ Jakir vs State on 22 March, 2021
IN THE COURT OF RAMESH KUMAR,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH EAST, KARKARDOOMA COURTS, DELHI
CR No.05/2021
CIS No. DLNE01-000707-2021
In the matter of:
Zakir @ Jakir
s/o Tahir Ali,
r/o H.No.767 A Block,
gali no.4, Sriram Colony,
Khajuri Khas, Delhi. ............ Revisionist
Versus
State ...........Respondent
Date of institution of case: 03.02.2021
Date of reserving the case for order: 04.03.2021
Date of passing of order: 22.03.2021
CRIMINAL REVISION PETITION AGAINST THE IMPUGNED
ORDER DATED 13.10.2020, PASSED BY THE HON'BLE COURT OF
SH. RAKESH RAMPURI, LD.MM, (NORTH-EAST) DISTRICT,
KARKARDOOMA COURT COMPLEX, DELHI, VIDE WHICH THE
LD. TRIAL COURT HAS REJECTED THE APPLICATION U/S 91
Cr.P.C, MOVED BY THE REVISIONIST, FOR DIRECTING THE
INVESTIGATING AGENCY TO CONSIDER, PRESERVE AND
PRODUCE THE CDR ALONG WITH TOWER LOCATION OF THE
REVISIONIST AND THE PROSECUTRIX AND THE FOOTAGE OF
CCTV CAMERAS, INSTALLED AT GALI NO.4, E BLOCK TO
REHMAN CHOWK (SHAITAN CHOWK) SIRIRAM COLONY.
CR No.5/20 Zakir @ Jakir VS. State Page 1/8
J U D G M E N T:
1. The present revision petition is preferred by Zakir @ Jakir (hereinafter referred to as revisionist), against the impugned order, dated 13.10.2020, passed by the court of Sh. Rakesh Rampuri, ld. MM, North-East District, Karkardooma Court Complex, Delhi, whereby, the ld.Trial Court dismissed an application u/sec. 91 Cr.P.C., moved on behalf of revisionist, seeking issuance of directions to the concerned Investigating Officer, to get the mobile location of the revisionist and complainant, with their call details.
2. It is alleged, in the present revision petition, that the FIR, concerning the present case, was registered on account of alleged act of gang rape and criminal intimidation, allegedly committed by the revisionist and his brother Aamir, against the prosecutrix/complainant (wife of revisionist), on 27.08.2020, between 2AM to 5AM. There was matrimonial dispute between the revisionist and prosecutrix/his wife, on account of extra martial relations of revisionist with one Ms. Firoza.
3. It is further alleged that, on 25.06.2020, an argument took place between the prosecutrix and the revisionist, which resulted in filing of a kallandra no.750/2020, u/sec. 107/151, Cr.P.C, vide DD no.116-A, by ASI B. D. Sharma, at PS Khajuri Khas. The revisionist was sent to judicial custody on the same day, and was released on bail on 28.06.2020. It is further alleged that the prosecutrix, registered an FIR against the revisionist and his brother Aamir, on 07.09.2020, at PS Khajuri Khas, u/Sec. 323/376/376-B/376-D/506 IPC, in which it was alleged by her that the revisionist and his brother Aamir, had raped her, during the intervening night of 25th & 26th August, 2020. Thereafter, the revisionist was arrested on CR No.5/20 Zakir @ Jakir VS. State Page 2/8 08.09.2020, and was sent to JC.
4. It is further alleged that, on the date of the alleged commission of offence, neither the prosecutrix nor the revisionist, were present at the alleged place of incident. It is stated that there is delay of 11 days, in the registration of the FIR, which is sufficient to show that the story is concocted and the complaint has been filed only with the sole intention of taking revenge and to intimidate the revisionist. Therefore, it is prayed in the revision petition that the impugned order, dated 13.10.2020, passed by the Court of Sh. Rakesh Rampuri, ld. MM, North-East, Karkardooma Court, be set aside.
5. I have heard Ms. Deeksha Diwedi, Advocate for the revisionist and Sh.V. K. Sharma, ld. Chief Public Prosecutor for the State/respondent and have carefully perused the record file and have gone through the material placed on record.
6. It is argued by the ld. counsel for the revisionist that the ld. MM failed to appreciate the fact that the information sought, was a time sensitive information, as the CCTV cameras do not store the footage beyond the period of 45 days, and yet, the ld.Trial Court failed to consider this aspect. It is further argued by the ld. counsel for the revisionist that the ld.MM failed to appreciate the importance of mobile tower location date, held by the telecom company, in respect of the revisionist as well as the prosecutrix. Ld. counsel for the revisionist further contended that it is only the investigating agency, which is authorized to procure and preserve the data of the CCTV footage and the mobile tower location and no other person is competent to procure it. It is further argued by ld. counsel for the revisionist that the material sought by the revisionist is a time bound material and it ought to be CR No.5/20 Zakir @ Jakir VS. State Page 3/8 preserved during initial days, otherwise, non-availability of such material would render the investigation unfair.
7. The ld. Chief Public Prosecutor for the State/respondent, on the other hand, argued that the revision petition deserves to be dismissed, at the first instance, primarily, on the ground of delay in filing of the present revision petition. It is further argued by ld. Chief P. P that the impugned order does not suffer from any illegality, as the same was passed by the ld. MM, after being satisfied by the reply filed by the concerned Investigating Officer, to the application u/sec. 91 Cr.P.C, filed by the revisionist, before the Trial Court.
8. The application moved by the revisionist, before the ld. Trial Court, was under Section 91 Cr.P.C, which is reproduced as under:-
Section 91 of the Cr.P.C provides 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."
CR No.5/20 Zakir @ Jakir VS. State Page 4/89. A careful perusal of the aforesaid provision would show that the power to issue a summons for the production of a document or a thing is to be exercised, whenever the Court considers that its production is necessary or desirable for the purposes of investigation, inquiry, trial or other proceeding as is held in Nimish Agarwal Vs. State of Chhattisgarh in Cr.M.P. No. 1058/2017, dated 20.05.2019 of Hon'ble High Court of Chhattisgarh.
10. I have perused the impugned order, dated 13.10.2020, which is reproduced as under:
"Proceedings conducted through Cisco Webex Meeting VC.
This is an application under Section 91 Cr.P.C. on behalf of applicant/accused for issuance of direction to the investigation officer to get the mobile location of the accused and complainant with call details.
Present: Ld. APP for the State.
Ld. Counsel for accused/applicant.
Application seen. IO files reply/report to the
application of applicant /accused. Same is seen. Copy of the said status report/reply be shared with Ld. Counsel for applicant through e-mode. Further detailed arguments also advanced by Ld. Counsel for applicant as well as Ld. APP for the State. Same heard. This is an application of accused/applicant under Section 91 Cr.P.C. for issuance of direction to IO for CDR of mobile phone of accused and complainant. However, this court is of considered view that under Section 91 Cr.P.C. at this stage in this case, it cannot issue any direction of production of any document like CDR at the instance of accused. Reference may be made to the judgment of Hon'ble Supreme Court of India in case titled as "State of Orissa vs. Debendra Nath Padhi (2005) 1 SSC 568 and Nimish Agarwal Vs. State of Chhattisgarh in Cr.M.P. No. 1058/2017, dated 20.05.2019 of Hon'ble High Court of Chhattisgarh".
With above observations, present application of applicant stands disposed of."
11. The perusal of the aforesaid order, passed by the ld. Trial Court, shows CR No.5/20 Zakir @ Jakir VS. State Page 5/8 that the order was passed, after reply to application, under section 91 Cr.P.C, was filed by the concerned IO and after hearing arguments from ld. counsel for the revisionist and ld. Addl. P. P for the State. Therefore, the contention of ld. counsel for the revisionist that the impugned order is illegal and same is passed without proper application of judicial mind is not tenable.
12. Before moving to the merits of the present revision petition, at the outset, it is pertinent to mention that the present appeal has been preferred by the appellant, after delay of 11 days. However, the present revision petition is not accompanied by separate application, whereby the revisionist could have explained the reasons for delay in filing of present revision petition. On the contrary, it is merely stated, in the revision petition, that the delay of 11 days, in filing the present revision petition, be condoned owing to the "financial incapacity" of the revisionist. However, the term "financial incapacity" has not been satisfactorily and sufficiently explained, either in the revision petition or even, during the course of arguments, by ld. counsel for the revisionist, so as to satisfy this court that there were sufficient reasons for condoning 11 days delay in filing of the present revision petition.
13. The ld. Trial Court has relied upon Nimish Agarwal Vs. State of Chhattisgarh in Cr.M.P. No. 1058/2017, dated 20.05.2019 of Hon'ble High Court of Chhattisgarh, and the relevant para of the aforesaid judgment are reproduced as under:
"We are of the view that jurisdiction under Section 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...
Thus, from the aforesaid enunciation of law, it is quite vivid that the committal inquiry, at the stage of committal, is not an inquiry or trial within the meaning of Section 91(1) of the CrPC, as held in Hardeep Singh CR No.5/20 Zakir @ Jakir VS. State Page 6/8 (supra), and it is also not the other proceeding for the purpose of Section 91 and, therefore, if the case put-forth before the committing Magistrate, is exclusively triable by the Court of Sessions, the said committing Magistrate has no option, except to pass an order committing the case to the Court of Session, to be tried, after complying with the provisions contained in Sections 207 & 208 of the CrPC and at that stage, he has no power and jurisdiction to entertain the application under Section 91 of the CrPC.
In Debendra Nath Padhi's case (supra), the Supreme Court has clearly held that entitlement of the accused to invoke Section 91 of the CrPC, would not ordinarily come, till the stage of defence and no such right is conferred by Section 91 to the accused, to seek production of document even by the prosecution. Thus, in my considered opinion, the committing Magistrate, has no power and jurisdiction, to entertain any application competently for production of document from the prosecution at that stage, as committal inquiry or proceeding is neither an inquiry nor a trial as held by the Constitution Bench of the Supreme Court in Hardeep Singh (supra), nor the accused is entitled at the stage of committal inquiry for production of document under Section 91 of the CrPC as a matter of right and therefore the committing Court, in my opinion, is absolutely justified in rejecting the application filed by the petitioner during the committal proceeding. I do not find any perversity or illegality in the said finding."
14. So far as the merit of the present revision petition is concerned, the main contention of the ld. counsel for the revisionist, for setting aside the impugned order, dated 13.10.2020, is that, at the time of the occurrence of the alleged incident, the revisionist as well as the prosecutrix, were not present at the alleged place of the incident. Even before the ld. Trial Court, the ld. counsel for the revisionist laid stress on this aspect. However, in the considered opinion of this Court, given the fact that the offences for which the revisionist has been charge sheeted, include offences under section 376/376-B/376-D IPC, which are exclusively triable by the Court of Ses- sion, the criminal proceedings pending before the Trial Court are awaiting committal of case to the Court of Session. During the pendency of the com- mittal proceeding, the revisionist moved an application under Section 91 of the CrPC, for issuance of direction to the Investigating Officer, to get the mobile location of the revisionist and complainant, with call details stating, CR No.5/20 Zakir @ Jakir VS. State Page 7/8 inter-alia, that the same are necessary and desirable. However, the necessity and desirability of issuance of aforesaid direction could not be entertained at the stage of committal proceeding for the reason that the offences for which the revisionist is charge sheeted, is triable by the Court of Sessions and is- suance of direction to the investigation officer to get the mobile location of the revisionist and prosecutrix, with call details, could be considered at the time of commencement of trial before the Court of Sessions, where the revi- sionist will get ample/sufficient opportunity to put forth his defence at the stage of evidence i.e the revisionist can call relevant witnesses or lead evi- dence in his defence to prove his contention that revisionist as well as the prosecutrix, were not in the company of each other on the date, when the al- leged incident took place.
15. In view of the aforesaid discussions, the ld. Trial Court has rightly and correctly passed the impugned order, dated 13.10.2020, which was passed, after considering the reply/report filed by the concerned IO, before the ld. Trial Court. Even otherwise, there is unexplained and implausible delay in filing of the present revision petition. Accordingly, there appears no merit in the revision petition and the impugned order, dated 13.10.2020, does not call for any interference. Hence, the present revision petition is dismissed.
16. Copy of this order be send to the Trial Court for information. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 22nd MARCH, 2021 (RAMESH KUMAR) PRINCIPAL DISTRICT AND SESSIONS JUDGE NORTH EAST DISTRICT CR No.5/20 Zakir @ Jakir VS. State Page 8/8