Karnataka High Court
Ms Yasashwini R N vs State Of Karnataka on 28 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:34408
CRL.P No. 7607 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7607 OF 2024
BETWEEN:
MS. YASASHWINI R. N.,
D/O NAGARAJAMURTHY
AGED ABOUT 21 YEARS
RESIDING AT MANKUNDA VILLAGE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT - 562 108.
...PETITIONER
(BY SRI LOKESHA K., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY RAJAJINAGARA POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
Digitally signed HIGH COURT BUILDING
by NAGAVENI
Location: HIGH BENGALURU - 560 021.
COURT OF
KARNATAKA
2. PRAVEEN D. P.,
S/O PUTTASWAMY
AGED ABOUT 30 YEARS
NO. 196, 1ST CROSS, 2ND MAIN
KAMALANAGARA, BENGALURU - 560 079.
...RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R1;
SRI ROSHAN M. C., ADVOCATE FOR R2)
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NC: 2024:KHC:34408
CRL.P No. 7607 of 2024
THIS CRL.P IS FILED U/S.482 OF THE CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED ORDER DATED 11.06.2024 VIDE
ANNEXURE-F PASSED BY THE HONBLE ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (FTSC II) IN SPL.C.NO.571/2023
REJECTING THE APPLICATION TO ADDUCE ADDITIONAL
EVIDENCE AND ALLOW THE APPLICATION OF THE
PROSECUTION AND PERMIT THE VICTIM/PETITIONER TO
ADDUCE THE ADDITIONAL EVIDENCE BEING THE CALL
RECORDING BETWEEN THE ACCUSED AND VICTIM ACCUSED
AND VICTIMS MOTHER, PHOTO OF THE ACCUSED AND VICTIM
AND SCREENSHOTS/SCREEN RECORDING WHATSAPP CHATS
BETWEEN ACCUSED AND THE VICTIM.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question an order dated 11.06.2024, by which the Additional City Civil and Sessions Judge (FTSC-II), in Spl.Case No.571/2023, rejects an application of the prosecution filed under Section 242(2) of the Cr.P.C., seeking to adduce additional electronic evidence.
Therefore, the victim is before this Court.
2. Heard Sri Lokesha K., learned counsel for petitioner, Sri Thejesh P., learned High Court Government Pleader for respondent No.1 and Sri Roshan M.C., learned counsel for respondent No.2.
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3. Facts in brief, germane, are as follows:
A crime comes to be registered in crime No.9/2023, against the accused for the offences under Sections 376, 417 and 506 of the IPC and Sections 3(a), 4 and 6 of the Protection of Children from Sexual Offences Act, 2012. The police after investigation file a charge sheet against the accused. The issue in the lis does not concern the claim of the prosecution / victim or the defence of the accused. An application is preferred by the prosecution to adduce further evidence - electronic evidence. Objections were filed by the accused and the concerned Court taking note of the objections, rejects the application on 11.06.2024. This has driven the petitioner to this Court in the subject petition.
4. Learned counsel for petitioner submits that the prosecution wanted to produce certain electronic evidence, which are voice recording / conversations of the victim and the accused. The concerned Court ought to have allowed the application filed by the prosecution as it would prove the guilt of the accused.
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5. Learned counsel for respondent No.2 - accused objects to the application being allowed.
6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.
7. The afore-narrated facts are not in dispute and requires no reiteration. The order dated 11.06.2024, that rejects the application under Section 242(2) of the Cr.P.C., filed by the prosecution reads as follows:
"ORDERS ON APPLICATION FILED U/SEC. 242(2) OF Cr.P.C BY THE LEARNED PUBLIC PROSECUTOR The Learned Public Prosecutor filed this application U/Sec. 242(2) of Cr.P.C. In the application it is stated that, "the accused has called to victim mother's mobile and some conversation has been taken place regarding the said Incident before lodging the complaint. The same was recorded in victim mother's mobile which is very much relevant to prove the offence made by the accused. The complainant has transferred the said conversation to CD and the complainant and the victim has tried to produce the same before the Investigation Officer, but he has not taken and considered as evidence at the time of filing of the charge-sheet. The said conversation is very much important to prove the relationship between the victim and the accused person and how the accused has misused by promising her. Now the complainant is producing the Whatsapp chats between her and the accused, the accused and her mother chat to prove that the accused -5- NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 has continuous touch with the victim girl and her family members and abusing the victim girl and her family members. Further it is stated that, "the complaint is producing the whatsapp chat between her and accused and her mother." Further it is stated that " the complaint is producing the said CD by filing this application, the same is to be marked by the complainant by recalling her for further chief examination. If the same is not marked, it cannot be taken as evidence in the above case. If the same is not marked, then the complainant and the victim girl will be put to great loss and hardship which cannot be compensated in any terms".
2. The Learned counsel for the accused filed objections contending that the application is not maintainable either in law or on facts. Further he contended that the prosecution has examined all the witnesses and they were also cross- examined by him. Now at the fag end of the trial, the prosecution has filed this frivolous application for marking the voice recording and the screen shots of messages, which were not part of the charge-sheet. Even the Investigation Officer did not produce the same. Adducing of electronic evidence has certain prescribes condition precedent before it comes into play where the complainant in his application had not been able to comply with any of the said conditions. On false and frivolous grounds, this application has been filed seeking permission to adduce additional evidence. If the application is allowed, right of the accused would be curtailed and fair trial would be frustrated. The Learned Public Prosecutor cooked up a false story in the application. Only with an intention to drag on the matter and to harass the accused, the prosecution has filed this application. The complainant had adduced her evidence and she duly cross-examined. After conclusion of he evidence from the prosecution side, now the matter is set-down for arguments and at this stage, this application is filed for adducing additional evidence by getting marked the CD. Neither the complainant in her chief examination nor in her cross- examination has whispered anything regarding providing the material to the Investigation Officer and the same is missing in the charge-sheet or trying to bring the same at the time of her evidence.
-6-NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 There is no substance in the application. If the application is allowed, it would cause prejudice to the fair trial guaranteed under the Indian Constitution.
3. Heard the arguments and Perused the materials placed before the court.
4. Record revels that Investigation Officer has filed the charge-sheet against the accused alleging that the accused has committed offences punishable U/Sec.3(a), 6 of POCSO Act, 2012 and Sec.376, 417 and 506 of IPC. After framing the charge against the accused for the offence punishable under Sec.376, 417 and 506 of IPC and Sec.6 of POCSO Act, 2012, the prosecution has examined Pw.1 to Pw.12 and also got marked 23 documents at Ex.P.1 to 23 and also closed its evidence. Thereafter the accused statement U/Sec.313 of Cr.P.C recorded. When the case is posted for arguments, this application has been filed by the Learned Public Prosecutor U/Sec.242(2) of Cr.P.C stating that the victim girl and the complainant are producing the CD wherein the complainant recorded the conversation between her and the accused and her mother with the accused contending that: "the accused has called the victim mother's mobile and some conversation has been taken place regarding the said incident before lodging the complaint. The same was recorded in victim mother's mobile which is very much relevant to prove the offence made by the accused." Further it is contended that the victim mother has produced the same before the Investigating Officer, but the Investigating Officer has not taken and considered it as an evidence at the time of filing of the charge-sheet. Complaint is producing the whatsapp chats and victim is producing the CD.
5. I have thoroughly gone through the prosecution papers. The prosecution papers reveal that Rajajinagara Police registered the case against the accused for the offences punishable U/Sec. 3(a)of POCSO Act, 2012 as per Ex.P16 on the basis of the complaint dated:
1.12.2022 which is marked at Ex.P.6. Thereafter the Investigating Officer has investigated the. case and submitted the charge-sheet on 28.2.2023 against the accused for the offences punishable U/Sec. 3(1), 6 of POCSO Act, 2012 and Sec. 376, 417 and 506 of IPC. This court framed the Charge on 11.5.2023. The Learned -7- NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 Public Prosecutor examined the complainant / victim girl as Pw.4 on 26.7.2023. The Learned counsel for the accused cross-examined Pw.4 on 5.8.2023, 8.9.2023, 4.10.2023 and 30.10.2023. The Learned Public Prosecutor in all examined 12 witnesses and closed its side evidence on 28.12.02023. Thereafter the accused statement U/Sec. 313 of Cr.P.C recorded and posted the case for arguments. Now at this fag end of the case, this application has been filed U/Sec. 242(2) of Cr.P.C.
6. The application filed U/Sec. 242(2) of Cr.P.C appears to be bald. The averments of the application are vague and it is not possible to know what the Prosecution intends to do, whether the prosecution intends to produce the CD consisting of alleged conversation held between the victim and accused or the mother of victim and accused or alleged whatsapp chat between the complaint with accused to recall the complainant / victim girl, and the mother of victim with accused. Because, in the application it is stated that the victim girl is producing the CD by filing this application stating that: "The accused has called the victim mother's mobile and some conversation has been taken place regarding the said incident before lodging the complaint. The same was recorded in victim mother's mobile which is very much relevant to prove the offence made by the accused. The complainant has transferred the conversation to the CD and the complainant and the victim girl has tried to produce the same before the Investigating Officer, but the Investigating Officer has not taken and considered the same as an evidence". Whereas the complainant and her mother neither in their chief examination nor in their cross- examination uttered a single word about alleged or conversation, or with chats the accused.
7. Further more, the said application does not disclose the mobile number of the mother of the victim girl or the accused. Even in the Certificates annexed to the application filed U/Sec. 65(B) of Indian Evidence Act also does not disclose the mobile number of the accused. Further the said Certificate filed U/Sec. 65(B) of Indian Evidence Act is not in-accordance with Sec. 65 of Indian Evidence Act. In the respective certificates the victim and her mother simply stated that " they have stored the phone and whatsapp massage in their respective mobile, transferred the same to CD and producing the same in the court".
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8. The Learned Public Prosecutor not produced the original electronic document, she intends to produce secondary document. Though she has filed Certificate U/Sec. 65(B) of Indian Evidence Act of victim and the mother, but the averments of the said Certificate are not in-accordance with Sec. 65(B) (2) of Indian Evidence Act. The certificate does satisfy the conditions imposed U/Sec.65(B)(2) of Evidence Act.
9. Further the said application does not disclose whether the Learned Public Prosecutor intends to produce the documents or she intends to recall the complainant or her mother. The prayer sought under the application itself is vague to know what relief the Learned Public Prosecutor intends to seek from this court.
10. Because, U/Sec. 242(2) of Cr.P.C, witness summons can be issued to witnesses as prayed by the Learned Public Prosecutor to attend the court or to produce any document or a thing. But in this application there is no specific prayer sought by the Learned Public Prosecutor to know or to grant the relief. Already prosecution has examined the charge sheet witnesses and closed it's side.
11. Further-more no sufficient ground made out by the prosecution why the delay has been caused to/in filing this application. When it is within the knowledge of the complainant and her mother about the alleged conversation and chats held with the accused prior to lodging of the complaint and IO refused to receive the CD what restrained the complainant to depose or to produce the CD or whatsapp chat while giving evidence or at the earliest point of time, there is no explanation offered by the prosecution.
12. The grounds urged in the application are not sufficient to entertain the application filed U/Sec. 242(2) of Cr.P.C. Hence, for the aforesaid reasons, I proceed to pass the following:
ORDER The application filed by the Learned Public Prosecutor U/Sec. 242(2) of Cr.P.C is hereby dismissed.-9-
NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 Posted for previous stage for Arguments. Call on 19/06.
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[SMT. SHRIKAVERI B.KALMATH] Addl. City Civil and Sessions Judge, FTSC-II, Bengaluru."
The concerned Court while considering the application ought to have treated it as an application under Section 311 of the Cr.P.C. and not has an application under Section 242(2) of the Cr.P.C. as is done by the concerned Court in the case at hand. Section 311 of the Cr.P.C. reads as follows:
"311. Power to summon material witness, or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
The purport and the importance of the application under Section 311 of the Cr.P.C. is dealt with by the Apex Court in the case of VARSHA GARG V. STATE OF MADHYA PRADESH reported in 2022 SCC OnLine SC 986, wherein, the Apex Court has held as follows:
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NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 "31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC.
Section 311 provides that the Court "may":
(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.
32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.
33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.
34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:
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NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 "16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-
examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."
35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:
"18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
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36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:
"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."
(Emphasis supplied) In the light of the afore-quoted judgment of the Apex Court, when an application is preferred seeking to produce certain electronic evidence, the concerned Court ought to have
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NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 allowed the application and not reject the same on the ground that there is a gross delay in producing the said evidence.
8. Learned counsel for the respondent - accused submits that the matter before the concerned Court is directed to be listed on 31.08.2024.
9. Therefore, I deem it appropriate to permit the victim / prosecution to produce the said electronic evidence as the offences are the ones punishable under Sections 376, 417 and 506 of the IPC and Sections 3(a), 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 and the concerned Court is directed to follow the application in consonance with the law.
10. For the aforesaid reasons, the following:
ORDER a. The criminal petition and the application filed under Section 242(2) of the Cr.P.C. are allowed.
b. The order dated 11.06.2024, passed in Spl.C.No.571/2023 stands quashed.
c. The concerned Court shall permit the petitioner to mark the documents - electronic evidence and evidence upon such production on a date
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NC: 2024:KHC:34408 CRL.P No. 7607 of 2024 that would be fixed by the concerned Court and is at liberty to regulate its procedure thereafter.
d. The concerned Court shall also bear in mind that the petitioner shall not unnecessarily drag on the proceedings on the ruse of marking of the documents, examination and cross-examination of the witness.
Ordered accordingly.
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(M.NAGAPRASANNA) JUDGE NVJ List No.: 1 Sl No.: 31/CT:SS