Uttarakhand High Court
Baljeet Singh @ Jeeta vs State Of Uttarakhand And Another on 29 August, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No.594 of 2022
Baljeet Singh @ Jeeta .....Applicant
Vs.
State of Uttarakhand and Another .....Respondents
Advocate: Mrs. Manisha Bhandari, Advocate for the applicant.
Mr. Atul Kumar Shah, Deputy Advocate General for the State of Uttarakhand.
Mr. Siddhartha Sah, Advocate for respondent no.2.
Hon'ble Sharad Kumar Sharma, J.
The matter was heard on 26.08.2022 and it was placed today for dictation of judgment.
2. Few facts which are required to be considered before venturing into the legal prospective with regards to the impugned order of 01.12.2021, resulting into rejection of an application under Section 91 of Cr.P.C., by the court of First Additional Sessions Judge, in Sessions Trial No.87 of 2018 State vs. Harjeet Singh & Others.
3. An FIR No.10 of 2018 was registered on 07.01.2018 with regards to the involvement of the named accused persons therein, in the FIR for commission of offence under Sections 147, 148, 149, 302 and 307 IPC. At this stage the detailed analysis about the set of allegations levelled in the FIR, in relation to the involvement of each of the co-accused persons is not required to be ventured into by this Court, on its merits for the reason being, that the counsel for the applicant has confined her arguments qua the impugned order, rejecting the application which was preferred by the applicant co-accused, under Section 91 of the Cr.P.C., which finds place on the records. In the application thus filed by one of the co-accused persons. In the application thus preferred under Section 91 of Cr.P.C. by Tersem Singh, the co-accused which was numbered as Paper No.113 Kha. The prayer, which was sought for was, that the DVR, which was taken in possession by the police that may be summoned by the court for the purposes of its consideration during the trial. The said 2 application has been rejected by the impugned order exclusively based upon the statement of the owner of the Jewellery Shop i.e. Krishna Jewellers namely, Mr. Vilayati Ram, son of Harbansh Lal, who has made a statement, that in the incident, which has chanced on 07.01.2018 and the incident which stood recorded by CCTV Camera, it was only the recording of the CCTV Camera footage, which in fact was taken in the custody by the police and in fact no DVR was taken. As such, in that eventuality, the court has drawn an inference, for assigning the reasoning, which has been assigned in para 10 of the impugned order dated 01.12.2021, that since in accordance with the statement of Mr. Vilayati Ram, as the DVR (Digital Video Recorder), was not taken in possession by the police, there is no occasion for the same to be placed on record by invoking the provisions contained under Section 91 of Cr.P.C.
4. The FIR which was thus instituted, after submission of the charge sheet, the cognizance has been taken resulting to the registration of Sessions Trial No.87 of 2018 State vs. Harjeet Singh & Others, which is presently pending consideration before the Court of 1st Additional District Judge/Sessions Judge, Udham Singh Nagar for trying the accused persons for the offences under Sections 147, 148, 149, 302 and 307, 504, 506 & 34 IPC, which was registered at P.S. Sitarganj, District Udham Singh Nagar.
5. The learned counsel for the applicant has submitted that if the basic spirit of Section 91 of Cr.P.C if it is taken into consideration, in fact it is an enabling provisions and the powers, which is being vested with the court or an officer who is In-charge of the police station could be called upon by the court ceased with trial to produce the documents or other things or articles, which may be desirable to be considered in evidence, while conducting a trial by the court and that is why under Chapter 7 of Cr.P.C., it uses the word, "Process To Compel The Production Of Things". The compelling aspect herein under Section 91 of the Cr.P.C., would be an exclusive vesting of powers, with the court seized to the trial for summoning the documents, or any material which may be relevant for the purposes of considering the trial, in order to have an effective adjudication of set of allegations, which is being tried by the court. Section 91 of the Cr.P.C. is extracted hereunder:-
3"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."
6. The learned counsel for the applicant has submitted that under the facts and the reasons, which has been assigned in the impugned order merely on the basis of the statement of the owner of the Krishana Jewellers, that no DVR in fact was taken in possession by the police authorities, who were investigating into the offence. Hence, it could not be produced by invoking the powers under Section 91 of Cr.P.C., is belied in view of the argument, which had been extended by the learned counsel for the applicant, in the context of the documents, which was submitted before the trial court and which was sent for its FSL examination and particularly the acknowledgment of the receipt by the Central Forensic Laboratory, which was issued on 12.04.2018, which rather specifically refers to two sealed parcels (one cloth and one paper) and two pen drives of 32 GB. The same was said to have been received from the court of S.C.J/J.M., Khatima District Udham Singh Nagar. The relevant receipt by FSL Laboratory dated 12.04.2018 is extracted hereunder:-
^^dsUnzh; U;k;kfyd foKku iz;ksx'kkyk Central Forensic Science Laboratory dsUnzh; U;k;kfyd laLFkku ifjlj] IykV ua 2] nf{k.k ekxZ] lsDVj& 36,] p.Mhx< CFI's Complex, Plot No.2, Dakshin Marg, Sector-36-A, Chandigarh- 160 035 Phone No.: EPABX :0172-2605933, 2622175, Director :0172-2615668, Fax : 0172-2905923 4 RECIEPT/ACKNOWLEGMENT This receipt of the following case properly along with relevant documents is hereby acknowledged.
CFSL No.: CFSL/(C) /668/18/PHY/280/18
Reference No.: Nil Dated:-Nil
From: ACJ (JDV) Khatima (US Nagar)
FIR/DDR No. FIR No.: 10/18 P.S. Sitar Ganj
No. of Parcels Two sealed parcels (one cloth and one paper)
and two pen drive 32 GB
Received Through: Ct. Arvind Kumar No.504. 8057130101 SHO-9411111905
7. As per the aforesaid receipt and acknowledgment of the Forensic Laoratory, the articles which were sent for its examination were examined by the Laboratory and they have submitted their FSL examination Report No.CFSL (C)/668/18/PHY/280/18 571 dated 27.04.2018. What would be relevant to be extracted to be considered here is, that in view of the receipt of articles, which were sent for FSL examination, it exclusively refers to two sealed parcels, apart from two pendrives, meaning thereby the two pendrives would be an independent articles then to the two parcels, which has been referred in the parcel which received by the Central Forensic Science Laboratory on 12.04.2018 for its examination and that aspect stands fortified from the contents of the report itself, where in the process of examination while the seals of the aforesaid articles, which were sent for examination was opened, the DVR were marked, as an exhibit by the FSL report as exhibit PD/1 i.e one black pendrive and exhibit PD/2 i.e. one red-black pendrive. What would be important for the purposes of considering the arguments extended by the counsel for the applicant would be the reference of the third article, which was considered by the FSL Laboratory in its report dated 27.04.2018, for its examination which reads as under:-
"One DVR CP Plus, S/N: CPTZA4ME611) in which two hard disks of HITACHI (S/N: IE3M5N7K, 500GB) and Seagate (S/N:
Z4ZZ7W6G, 2000GB) were found. The DVR and hard disks were marked as the exhibits- DVR/1, HD/1 and HD/2 respectively."
8. It was an article no.2, which was in fact considered by their FSL Laboratory. In fact the Article no.2 specifically refers to 2 digital video 5 recorders of (CP Plus, S/N: CPTZA4ME611) in which there was two hard disks of HITACHI make bearing no.S/N: IE3M5N7K, 500GB and Seagate (S/N:
Z4ZZ7W6G, 2000GB), they were found and the DVR/1, and HD/1 and HD/2 respectively. Accordingly, the FSL Laboratory report of 27.04.2018 leads to an unrebuttable inference that in view of exhibits, which were sent by the court for its scientific examination, it did contain the DVR, which was sent for its examination before the FSL Laboratory and which was examined too by the Laboratory, in its report dated 27.04.2018, in that eventuality, it leads to an inevitable inference that DVR's, did constitute as to be the case article, which was taken in custody during the course of the investigation and later on was even handed over to the trial court, but in the application under Section 91 of Cr.P.C. which was considered by the learned trial court and its reason for rejection does not repose confidence to this Court because it happens to be contrary to the records and particularly the CFSL report dated 27.04.2018, and the receipt of the articles by the laboratory on 12.04.2018.
9. Another reason, which has been assigned by the learned court, that the aforesaid DVR was returned back to the owner of the Krishna Jewellers, is yet again a fact which cannot be accepted by this Court at all in the absence of there being any document being placed on record rather of alleged handing over of DVR's in fact, this Court is of the view that when it was a 'case article' and which were sent for FSL examination by the Court, there could not have been an occasion for returning back the same to owner of Krishna Jewellers because the articles which may have a vital bearing in the trial of the case itself and too without there being any document of proof of handing over, as per Criminal Procedural law as contained under General Rule (Criminal).
10. What is more alarming is that if the order sheet, of this Court dated 20.06.2022 is taken into consideration, when the present C-482 application was being considered the Coordinate Benches of this Court, had passed an order directing the respondents to produce the case diary, as well as fard baramadgi, but despite of there being consistent orders passed by the court ever since 30.07.2022 and thereafter on 20.07.2022, 01.08.2022. Henceforth, the fard baramadgi report is not shown to have been ever placed on record including the G.D. which was called upon by the court in order to arrive at a conclusion, as to 6 whether at all the DVR constitutes as to be the part of the G.D. itself or not which in itself creates a doubt about the and upon the investigation.
11. In fact the exception which has been attempted to be carved out, though it would not be acceptable at this stage by this Court, as attempted to be made at the behest of the private respondents herein, because this Court is of the view that so far as Section 91 Cr.P.C. is concerned, it is exclusively a prerogative power, which has been vested with the court to enable the court to called upon any document or the material, which may be relevant for the purposes of conducting a true, fair and correct trial and to arrive at a logical and plausible conclusion. The private respondents herein, in fact will have no legs to stand and to oppose the proceedings, which was instituted by way of invoking the provisions contained under Section 91 of Cr.P.C. for the purposes of summoning the DVR while exercising its powers under Section 91 of Cr.P.C.
12. The conduct of respondents itself is doubted by this Court more particularly when despite of there being orders passed by the court, the respondents have desisted themselves for the reasons best known to them to place on record the fard baramadgi or G.D., which was thus directed to be summoned because that would have reflected as to whether at all the alleged DVR which was sent by the trial court for its examination before the CFSL Laboratory, whether it still constitutes as to be a material on record in the GD, which would be considered by the trial court in its investigation during conduct of trial. The logic which has been assigned by the court in the impugned order, which is exclusively based upon the statement which had been recorded by the owner of the jewellery shop, is not acceptable by this Court for the reason being that once an article has already been included in the list of fard baramadgi, it becomes a 'case property', and which will be exclusively under the control and management of the court, who is seized with the trial and that too particularly when there was a specific reference made that these two articles were sent by the court itself for its Forensic Science Laboratory, examination and which did constitute as to be a part of the FSL examination report dated 27.04.2018, which was examined and as such the statement of the owner of the jeweller shop and from whose custody the said DVR was taken into and was made as part of the fard baramadgi, cannot be accepted by the Court that the DVR was not taken 7 into custody and it was only the CCTV footage, which was ultimately placed in the pendrives, which were independent to the DVR sent for examination, as would apparent from the exhibits which were considered by the FSL Laboratory.
13. Thus the very reasoning which has been assigned by the impugned order of 01.12.2021, in fact does not repose any confidence, as such to this court to justify the reasoning, which has been given by the court on the ground of the statement which has been considered and recorded in para 10 of the said judgment. In fact this ,contention which has been extracted to be drawn, it rather happens to be in apparent contravention to the procedural law particularly when the trial is being carried in relation to the offences which stood settled as a consequence of submission of charge sheet and that is what the principle which has been dealt with, with regards to the implications of Section 91 of Cr.P.C. by the Hon'ble Apex Court in a judgment reported in (2013) 7 Supreme Court Case 452 Central Bureau of Investigation vs. V. Vijay Sai Reddy particularly the reference will be had to para 30 and 31 of the said judgment. Para 30 and 31 are extracted hereunder:-
"24. As pointed out by learned senior Counsel for the CBI in para 25 of the impugned judgment, the High Court did not agree with the observation of the Special Judge that the investigation has reached to a conclusion. In fact, the High Court has concluded that the above finding is incorrect. In para 26 also, the High Court appreciated and accepted the stand of the CBI that it has been making investigation with regard to other distinct offences that are alleged in the FIR. Interestingly, the High Court has also not accepted the another reasoning of the Special Court for granting bail, namely, that the main accused A-1 and other beneficiaries have not been arrested by the investigating agency. In other words, the High Court has rightly concluded that the circumstance of not arresting the other accused itself cannot be a ground to grant bail. However, after finding fault with certain reasoning and conclusion of the Special Court in granting bail, the High Court has observed that the CBI has not placed any material before the Special Court to substantiate their stand. The Special Judge has also noted that when Respondent herein (A-2) was released on bail on 13.04.2012 and again surrendered before the Court on 23.04.2012, there is no allegation against him that during this period, he tried to run away from the investigating agency or made any attempt to influence the witnesses. In this regard, learned senior Counsel for the CBI has brought to our notice the statement of one Gopalakrishnan Murali dated 20.06.2012. In his statement, in the penultimate paragraph, it is noted that on receipt of notice Under Section 91 of the Code from CBI on 13.06.2012 the said deponent immediately contacted V. 8 Vijay Sai Reddy (A-2) for his instructions. According to him, A-2 directed him not to part with any document/information to CBI and directed to approach the High Court of Andhra Pradesh through their legal advisors. Admittedly, he had not brought any information as required under the notice dated 13.06.2012 on the advise of the Respondent herein (A-2). As rightly pointed out, there is no need to go to High Court to get specific direction for each and everything. When the Investigating Officer is in need of certain documents/information for verification with reference to the investigation it is but proper to place all the materials Under Section 91 of the Code. Likewise, further statement of one Shri Sanjay S. Mitra dated 07.12.2012 was pressed into service. When the attention was drawn to the said person pointing out that his replies are intended to protect directly the people involved in the above transactions including his Managing Director Puneet Dalmia and Vijay Sai Reddy (A-2), his answer was that he is an employee working with Dalmia for salary and he has indications from his management and indirectly from Vijay Sai Reddy (A-2) about not revealing the above transactions and he also informed the things having reservation about his future. These are a few samples pointed out by the counsel for the CBI.
31. Another relevant aspect as pointed out by learned senior Counsel for the CBI that bail can be cancelled when lower court granted bail on irrelevant considerations. The High Court accepted the said proposition and observed that "though there appears to be some force in the contention of Shri Kesava Rao, learned standing Counsel for the CBI that the Special Judge has taken into consideration certain factors which appear to be not relevant such as not arresting A-1 and certain other observations of learned Special Judge, such as investigation has been completed appear to be incorrect." Unfortunately, after arriving such conclusion, particularly, criticizing the Special Judge, the High Court on an erroneous ground concluded that "it cannot be said that they are totally irrelevant circumstances, therefore, on that ground, I feel that the bail granted to the Respondent cannot be cancelled".
14. In view of the aforesaid though this Court is slightly apprehensive to make any observation at this stage, as to what were the reasons which contributed to record a statement that DVR is not on record, because it may have an adverse bearing on the trial itself, but apparently from whatsoever reasons the documents which has been placed on record of this C-482 application, there cannot be any iota of doubt that the DVR was a part of the case property, which was in the custody of the court and in that eventuality the very reason, which has been assigned by the court in its impugned order, is not sustainable. Hence, the impugned order is quashed. The matter is remitted back to the trial court to reconsider the application under Section 91 of Cr.P.C. afresh, based on the 9 observations, which has been made above and to decide the same as expeditiously as possible, but not later than two months from the date of production of certified copy of this judgment.
15. Subject to the aforesaid directions, present C-482 application is allowed.
(Sharad Kumar Sharma, J.) 29.08.2022 Arti