Karnataka High Court
State Of Karnataka By vs T Naseer @ Nasir @ Thandiantavida Naseer ... on 27 January, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO.2585 OF 2019
BETWEEN:
STATE OF KARNATAKA BY
CCB POLICE,
BANGALORE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE-1. ...PETITIONER
(BY SRI V.S.HEGDE, SPP II)
AND:
1. T NASEER @ NASIR @
THANDIANTAVIDA NASEER@ UMARHAZI @ HAZI
S/O ABDUL MAJEED K
AGED ABOUT 32 YEARS,
R/O BAITHULHILAL, KURUVAA ROAD,
THAYIL, KANNUR CITY,
KERALA - 691390.
2. EDAPANA THODIKA ZAINDUDDIN @ ABDUL SATTAR
@ ABDUL SALAM @ SALEEM,
S/O LATE MOHAMMED E.T.,
AGED ABOUT 66 YEARS,
(15.08.1951),
NATIVE OF KONDOTTY,
PALEYANGADI, KERALA - 673 638.
2
3. SARAFARAZ NAWAZ @ SEJU @ HAKEEM
@ SURFUR NAWAZ,
S/O P.K. HASSAN (POOVATHUMVEETIL
KOCHUNNY HASSAN),
AGED ABOUT 39 YEARS
(D.O.B. 16.09.1977),
R/O KANIYATUKUDIYI HOUSE,
PERINGALA POST
PALLIKARA, ERNAKULAM DISTRICT,
KERALA - 691394.
4. EDAPANA THODIKA SHARAFUDEEN @ SHARAFU,
S/O EDAPANA THOL SATTAR @
ABDUL SALAM @ SALEEM,
AGED ABOUT 37 YEARS, (20.05.1979)
R/O NOORI MANZIL, KARUVAN KALLU,
MALLAPURAM DISTRICT,
KERALA - 691 445.
5. ABDUL JABBAR @ SATTAR @ JABBAR
S/O KUNJI BHAVA,
AGED ABOUT 44 YEARS,
SUNNI MUSLIM, THAYATTIL HOUSE,
KAVANJEREVALAMERDUR POST,
MANGALAMVAI B.P. ANGADI,
TIRUR, MALAPPURAM DISTRICT,
KERALA - 691 445.
6. A.E. MANAF,
S/O KUNJI BHAVAN,
AGED ABOUT 23 YEARS,
ILAMBILL HOUSE,
PARMBAI, MUMBARAM POST,
KANNUR DISTRICT,
KERALA - 691 390.
7. P. MUJEEB,
3
S/O MOIDEEN,
AGED ABOUT 35 YEARS,
SUNNI MUSLIM,
PALLIPURATH HOUSE,
MUNEERA MANZIL, MUTHUKUTTY,
CHAKKARAKAL VILLAGE,
MOWANCHERY POST, KANNUR TALUK
AND DISTRICT,
KERALA - 691390.
8. V.P. MOHAMMED SAKARIYA @ SAKARIYA
S/O LATE V. KUNHI MOHAMMED
AGED ABOUT 21 YEARS,
SUNNI MUSLIM, MOBILE TECHNICIAN
R/AT VANIYAM PARAMBATH KUTTIYIL HOUSE,
PARAPPANAAGADI VILLAGE,
PUTHANPEEDIKA POST
TIRURANGADI TALUK,
MALLAPURAM DISTRICT,
KERALA - 691445.
9. BADARUDHEEN N @ NOOR,
S/O NOOR MUHAMMED,
AGED ABOUT 35 YEARS,
ULLATTIL HOUSE, RAZAK MANZIL,
KARUKAPPILLY LINE,
ELAMAKKARA POST,
COCHIN 26, KERALA.
10. FAIZAL,
S/O LATE ABDUL RAHEEM,
AGED ABOUT 34 YEARS,
R/O UNNAVODHAL NEW QUARTERS,
THAZECHARRAR, KANNUR CITY,
KANNUR P.S. LIMITS,
MALLAPURAM DISTRICT,
KERALA. 676504.
4
11. ABDUL JALEEL
S/O LATE MOOSA
AGED ABOUT 46 YEARS,
S/O KARIPAYI,
PUDIYAOURA, KADACHARA,
KANNUR, KADACHARA POST,
ITAKAD P.S. LIMITS,
MALLAPURAM DISTRICT,
KERALA - 691 445.
12. UMAR FAROOQ @ UMAR-UI-FAROOQ
S/O CHEKUTTI HAZI,
AGED ABOUT 45 YEARS
(APPROXIMATE)
RAYAN KANDATH, FATHIMA MANZEEL
CHATTIPADI, PARAPPANAGADI
MALLAPURAM DISTRICT,
KERALA - 691 445.
13. IBRAHIM MOLVI,
S/O LATE MOIDU,
AGED ABOUT 45 YEARS,
(APPROXIMATE),
PUDANGAL HOUSE, PRINATALAL,
WAYANDADU,
KERALA-691 177.
14. SAFAZ,
S/O SHAMSHUDDIN,
AGED ABOUT 36 YEARS,
KURUVAA ROAD, PUDANGAL HOUSE,
PARINATATAL, WAYANADU,
KERALA-691 177.
5
15. P.A.SALEEM,
S/O MUMMUTTI,
AGED ABOUT 41 YEARS,
FATHIMA MAHAL, PARAM BAHI
GRAMA, VENUGUDU PANCHAYITHI,
KANNUR, KERALA - 691390.
16. SAMEER,
S/O LATE REHAMATULLA
AGED ABOUT 38 YEARS
FAJANESTA, MAZAPADAM,
THANA KANNUR,
KERALA - 691390.
17. SARFUDDIN,
S/O ABDUL REHAMAN,
AGED ABOUT 46 YEARS,
K.K. RAHIMAS, HOUSE
EDAKKADU PANCHAYATHI,
KADALAYI POST, KURUVA,
KANNUR DISTRICT,
KERALA - 691390.
18. THAJUDDIN,
S/O ABDUL RAZAK,
AGED ABOUT 34 YEARS
KERAKKETHOPPIL HOUSE,
MAKHANAAYIMANNA, MANAM POST
PARAVOOR, ERNAKULAM (OWN HOUSE)
PRESENT ADDRESS: KEREKKETHOPIL HOUSE,
VEDIMARA, MANAMA POST,
KUNJIRAMBAAYIL, PARAVOOR,
ERNAKULAM
KERALA - 691 394.
6
19. ABDUL KHADER,
S/O ABDULLA,
AGED ABOUT 46 YEARS
R/AT NO.78, NIRMALAGIR HEGGALA VILLAGE
AND POST, VEERAJEPETE,
COORG - 571218.
20. P.B. SAABERR @ SAABEER P BHUHARI
@ SABEER
S/O BHUHARI,
AGED ABOUT 38 YEARS,
MUDAKKADU HOUSE,
PAARAPPURAM, KANNATTANADU TALUK,
PERAMBAVOOR, ERNAKULAM.
KERALA - 691 394.
21. ABDUL NAZIR MOUDANY,
S/O ABDUL SAMAD,
AGED ABOUT 45 YEARS
(APPROXIMATE),
ALABRA, KARUKAPALLI,
DESHABHIMAANI ROAD,
KALOOR POST, JUMMA MOSQUE,
ERNAKULAM, KERALA - 691394
AND ANWARSERRY
KARUNAGAPALLY,
SASTAMKOTA, KOLLAM,
KERALA - 691372. ...RESPONDENTS
(BY SRI BALAKRISHNAN, ADVOCATE FOR R1 - R20,
SRI P USMAN, ADVOCATE FOR R21)
----
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE THE ORDER DATED 18.01.2018 PASSED IN
S.C.NO.1480/2010 AND 1481/2010 ON THE FILE OF THE XLVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,(SPECIAL
COURT FOR TRIAL OF CBI CASES) CITY CIVIL COURT,
7
BANGALORE CCH-49 ON APPLICATION FILED UNDER SECTION
311 OF CR.PC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THROUGH VIDEO CONFERENCE THE COURT MADE
THE FOLLOWING:
ORDER
The charge sheet is filed for the offences punishable under Sections 120(B), 121, 121(A), 302, 307, 326, 435 & 201 of IPC against the respondents and other accused.
2. After the statements of the accused were recorded under Section 313 of Crpc , the prosecution filed an application under Section 311 of CrPC to lead further evidence on the report and the certificate issued under Section 65B of the Indian Evidence Act. The said application came to be rejected by the learned Sessions Judge. Hence, this petition.
3. Sri V S Hegde, learned State Public Prosecutor-II appearing for the Petitioner - State submits, firstly, that certificate under Section 65B of the Indian Evidence Act can be produced at any time of the trial and as such, the impugned order passed by the learned Sessions Judge rejecting the application filed under Section 311 of CrPC is not sustainable in 8 law. In support, reliance is placed on the decision of the Apex Court in the case of Arjun Panditrao Khotkar -vs- Kailash Kushanrao Gorantyal and Ors., reported in (2020) 7 SCC 1.
4. Secondly, he submits that there is no bar for filing successive applications under Section 311 of CrPC. In support, he placed reliance on the decision of the Apex Court in the case of Shailendra Kumar -vs- State of Bihar and Others, reported in (2002) 1 SCC 655.
5. Thirdly, he submits that the report of an expert can be produced at any time of trial as specified under Section 293 of CrPC. In support, he placed reliance on the decision of the Apex Court in the case of P Gopalkrishnan @ Dileep -vs- State of Kerala and Another, in Crl.A No.1794/2019.
6. Learned counsel appearing for the Respondents would submit that the impugned order passed by the Trial Court is perfectly legal and the same does not warrant any interference. They further submitted that the accused who are languishing in jail for more than eleven years will be put to extreme injustice if 9 the prosecution is permitted to lead further evidence on report as well as the certificate issued under Section 65B of the Indian Evidence Act. They further submitted that the harmonious reading of Paras - 52, 54, 55 and 56 of the decision of the Apex Court in the case of Arjun Panditrao Khotkar (supra) clearly indicates that the certificate under Section 65 B of the Indian Evidence Act has to be produced at the time of filing of the charge sheet and not at any stage of the trial.
7. I have carefully considered the submissions of the learned counsel for the parties.
8. The points that arise for consideration are:
i) Whether the prosecution can produce the report as well as the certificate under Section 65B of the Indian Evidence Act at any stage of the trial?
ii) Whether the successive application under Section 311 of CrPC can be maintained?
9. Admittedly, the case was set out for arguments of the parties and at that stage, the prosecution filed an application under Section 311 of CrPC so as to lead further evidence on the 10 report and certificate under Section 65B of the Indian Evidence Act.
10. The Apex Court in the case of Anvar P.V -vs- P K Basheer, reported in (2014) 10 SCC 473, observed that the certificate issued under Section 65B of the Indian Evidence Act must accompany the electronic record when the same is produced in evidence. This decision was considered by the larger Bench of the Apex Court in the case of Arjun Panditrao Khotkar (supra), wherein after considering the ratio enunciated in the case of Anvar P V, has held as under:
"52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge 11 ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case.
When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.
54. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge- sheet/final report have to be given to the accused. Section 207 CrPC, which reads [ "207. Supply to the accused of copy of police report and other documents.--In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of costs, a copy of each of the following--(i) the police report;(ii) the first information report recorded under Section 154;(iii) the statements recorded under sub- section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173;(iv) the confessions and statements, if any, recorded under Section 164;(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173:Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that 12 a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court."] as follows, is mandatory. Therefore, the electronic evidence i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
55. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in CBI v. R.S. Pai [CBI v. R.S. Pai, (2002) 5 SCC 82 : 2002 SCC (Cri) 950] , the only exception to this general rule is if the prosecution had "mistakenly" not filed a document, the said document can be allowed to be placed on record. The Court held as follows : (SCC p. 85, para
7) 13 "7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court."
56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case -- discretion to be exercised by the court in accordance with law."
11. The combined reading of the observations made by the Apex Court in Paras - 52, 54, 55 & 56 clearly indicates that the 14 stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all the documents which are entered in the charge-sheet/final report have to be given to the accused. In Para - 52 of the Apex Court's decision, it is observed that when it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied with all the documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the Code.
12. The Apex Court at Para - 56 in the decision of Arjun Panditrao Khotkar (supra) has observed that depending on the facts of each case, and the court exercising its discretion, may in appropriate cases, allow the prosecution to produce such certificate at a later point in time, after seeing that the accused is not prejudiced by want of a fair trial. The Prosecution in SLP (Crl.) No. 8084-8092/2013 has stated that the pending trial is likely to be concluded within 4 months which was disposed of on 14/11/2014. However, the trial has not been concluded as of 15 today. The prosecution, instead of taking steps to conclude the trial at the earliest, has submitted an application to lead further evidence on the report and certificate under Section 65B of the Indian Evidence Act. If the prosecution is permitted to produce the certificate issued under Section 65B of the Indian Evidence Act, the accused who are languishing in jail for more than 11 years will be put to extreme injustice since the case which is set out for argument of the parties will have to be reopened and a fresh statements under Section 313 of CrPC will have to be recorded, which will adversely affect the rights of the accused. It is not a case where discretion can be exercised so as to permit the prosecution to produce a certificate under Section 65B of the Indian Evidence Act when the case is set out for argument of the parties. The Point No.1 for consideration is answered against the prosecution and in favour of the respondents.
13. During the course of chief-examination of PW-189, prosecution sought to produce the report with regard to the contents of the electronic documents. However, the request to mark the said report was rejected by the Trial Court by order 16 dated 7.4.2017, holding that in the absence of certificate required under Section 65B of the Indian Evidence Act, the report of the witness is not admissible in law.
14. On 27.4.2017, when the prosecution witness viz:
M Krishna was further examined in-chief, he produced the certificate under Section 65B of the Indian Evidence Act. After hearing both the sides, the trial court passed an order on 20.6.2017 holding that the certificate issued under Section 65B of the Indian Evidence Act is not admissible in evidence.
15. When such being the case, the prosecution filed an application under Section 311 of CrPC to lead further evidence on the report submitted by the prosecution witness ie.M.Krishna and also the certificate issued under Section 65B of the Indian Evidence Act. The trial court, referring to Section 362 of CrPC, held that having rejected the request of the prosecution to mark the report as well as the certificate issued under Section 65B of the Indian Evidence Act cannot alter or review the final order except to correct a clerical or arithmetical error. Since the report sought to be produced by the prosecution is inadmissible in 17 evidence, the prosecution could not have filed a fresh application under Section 311 of CrPC. When the earlier order has attained finality, and there is no power for the Trial Court to alter its earlier order.
16. Section 293 of Cr.PC specifies that a report under the hand of a Government scientific expert to whom this section applies may be used as evidence and the court may , if it thinks, summon and examine such expert . However , this section is applicable to the Government Scientific experts enumerated in sub section (4) of Section 293 of Crpc . In the present case, the prosecution has not stated that the report sought to be marked is a report prepared under the hand of a Government scientific expert as enumerated in Section 293 (4) of Crpc. Hence, the submission of learned SPP-II that the trial court suo moto may call upon the government scientific expert to tender evidence on the report to be marked is not acceptable. Even otherwise the expert cannot be summoned to tender evidence on the report and mark the said report at the stage of arguments. 18
17. The decisions relied on by the learned State Public Prosecutor-II appearing for the Petitioner in Anvar P.V -vs- P K Basheer (supra) and Arjun Panditrao Khotkar (supra) are not applicable and not helpful to the petitioner to contend that the report as well as the certificate under Section 65B of the Indian Evidence Act can be produced at any stage of the trial and successive applications can be maintained under Section 311 of Crpc. .
18. Hence, in view of analysis of preceding paragraphs, I am of the considered view that the impugned order passed by the Trial Court is legal and does not warrant any interference.
Accordingly, the criminal petition stands dismissed.
Sd/-
JUDGE BKM