Calcutta High Court (Appellete Side)
Shadab Siddique @ Aman vs State Of West Bengal & Anr on 16 January, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
16.01.2017
Ct.28
RP 44
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.R. 46 of 2017
Shadab Siddique @ Aman
Vs.
State of West Bengal & Anr.
Mr. Salar M. Khan
Mr. Farukh Khan
Mr. Debapriya Mukherjee : For the Petitioner
Mr. Siladitya Sanyal
Mr. Brajesh Jha
Mr. Sujan Chatterjee
Mr. Sanat Kumar Das : For the Opposite Party No.2
Mr. Pawan Kumar Gupta : For the State
Heard on : January 16, 2017
Judgement on : January 16, 2017
Joymalya Bagchi, J. :
Order No.306 dated 06.12.2016 passed by the learned Chief Judge, City Sessions Court, Calcutta in SC 35/11 rejecting the prayer of the petitioner for production of documents and further examination of prosecution witnesses has been assailed.
Petitioner is facing trial in the instant case, inter alia, under Section 364A of the Indian Penal Code. Upon conclusion of defence evidence, the matter was fixed for arguments. At that stage, the petitioner took out two applications before the trial Court seeking production of certain documents which, according to him, were relevant for a just decision of the Court. The documents sought to be produced before the trial Court was:-
i) complaint lodged by the petitioner on 15.03.2008 being General Diary Entry No.900 at Metiaburz Police Station;
ii) responses of HIDCO authority under the Right to Information Act relating to a plot of land measuring an area of 2.24 Cottahs in the Action Area-III/A, Category-MIGI;
iii) Lock up diary, station diary, log book of vehicle no.WB 04C 4715 from 17.03.2008 to 10.04.2008, visitors' entry register of Bhawani Bhawan from 07.03.2008 to 30.06.2008, daily diary report of register from 07.03.2008 to 30.06.2008 and CCTV footage of CID, Bhawani Bhawan from 01.03.2008 to 30.06.2008.
Such prayers have been turned down by the trial Court. Hence, the petitioner is before this Court.
Mr. Khan, learned Counsel appearing for the petitioner submitted that the General Diary of Metiaburz Police Station was necessary to show the enmity by and between the parties and the responses under RTI Act by HIDCO would improbabilize the claim of the prosecution that the said plot of land was sold to pay the ransom amount. He further submitted that the lock up register, station diary, log book of vehicle etc. were necessary to establish that the petitioner had not been taken out from the CID office in the night between 19th/20th March, 2009 or 2nd April, 2008 to effect recoveries in the course of investigation as claimed by the prosecution. He further submitted that other records like visitors' register, CCTV footage which would also show that the complainant did not visit the CID office on and from 10th March, 2008 as claimed by the prosecution.
Mr. Gupta, learned Advocate appearing for the State submits that the ocular evidence on record clearly establishes that the petitioner had been taken out from the CID office in the night of 19th/20th March, 2008 and on 2nd April, 2008 and necessary recoveries were made. He further submitted that the complaint lodged by the petitioner is not a prior one and had been lodged subsequent to the instant criminal case and therefore the said general diary does not probabilise the defence version that the instant case is a counterblast to the said diary lodged at Metiaburz Police Station. He further submitted that the responsens under the RTI Act by HIDCO cannot be treated as evidence and that apart the same are hardly germane to the prosecution case.
Mr. Sanyal, learned Senior Counsel appearing for the opposite party no.2 supported the prosecution case and submitted that the complaint at Metiaburz Police Station was subsequent to the instant criminal case and the responses to the queries under the RTI Act, 2005 by HIDCO are also not necessary for a just decision of the case. He further submitted that the evidence of PW 32 shows that the petitioner was interrogated at the CID office between 5 and 9 P.M. and thereafter had been taken out for the purpose of recovery in the instant case and therefore the question of production of lock up register, station diary, log book of vehicle in the instant case are of no relevance, particularly in the face of ocular evidence as to the presence of the petitioner during the recovery of incriminating materials. In reply, learned Counsel for the petitioner submitted that the independent witness to the seizure has not identified the petitioner during the recovery.
I have considered the rival submissions of the parties. Coming to the issue of production of general diary lodged at Metiaburz Police Station, I find that the said diary was lodged after the lodging of complaint in the instant case and therefore production of the same is unnecessary as it cannot be said that the instant case is a counterblast to the said general diary. With regard to response to the queries under RTI Act, 2005 relating to the sale of a plot of land, I am of the opinion that in a case of kidnapping for ransom the actual source of money for payment of ransom is not a relevant matter in issue and hence, production of the aforesaid document is not necessary for a just decision of the case. Finally, with regard to production of the lock up register, station diary book, log book of the vehicle, I find that there is evidence on record that the petitioner had been interrogated in the night of 19th/20th March, 2008 and thereafter had been taken out for alleged recoveries pursuant to the statement of the petitioner. It is a matter of trial as to whether the prosecution has been able to prove the said recoveries at the behest of the petitioner is beyond reasonable doubt. However, in the absence of any evidence on record that the petitioner had been put inside the lock up during the interrogation at the police station production of lock up register, station register diary, logbook of vehicle are of little consequence in the face of ocular version as transpiring from the evidence of prosecution witnesses with regard to the alleged recoveries. It is also in the nature of a fishing and roving enquiry at the behest of the defence to seek production of visitors' entry book, CCTV footage to improbabilize the lodging of the complaint at the CID department when such document has been marked as an exhibit without objection. It is true while the accused must be given adequate opportunity to adduce evidence to improbabilize the prosecution case, such privilege cannot permit the accused to embark on a fishing and roving enquiry to elicit facts in respect of which no foundation had been laid on the evidence on record. Reference in this regard may be made to the ration laid down in Rajesh Talwar vs. CBI reported in 2014(1) SCC 621.
Furthermore, with regard to the alleged seizure of fire arms on 2nd April, 2008, it appears a separate criminal case was registered and the petitioner has already been convicted therein.
Finally, the learned Counsel for the petitioner sought for production of the documents like seizure list and/or deposition recorded in the course of trial in the aforesaid case relating to possession of fire arms where the petitioner had been convicted. It is settled law that evidence of one case cannot be used in another case until and unless the witness has been confronted with his deposition in the other case. No such effort has been made by the defence in the course of trial of the instant case. Hence, I am constrained also to disallow the prayer of the petitioner to produce/rely on the documents exhibited and/or evidence adduced in the aforesaid case under the provisions of the Arms Act.
In view of the aforesaid discussion, I do not find any illegality in the impugned order and the petition is, accordingly, dismissed.
I make it clear that observations made by me in the order impugned is for disposal of the case and shall not any bearing in the course of trial which shall be decided independently on the basis of the evidence adduced and in accordance with law.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
(JOYMALYA BAGCHI, J.)