Allahabad High Court
Uday Sarup vs State Of U.P. And Another on 31 August, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:145942 Reserved on: 06.08.2024 Delivered on: 31.08.2024 Court No. - 77 Case :- APPLICATION U/S 482 No. - 11623 of 2024 Applicant :- Uday Sarup Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mehul Khare,Pragya Pandey,Sr. Advocate Counsel for Opposite Party :- G.A.,Mandvi Tripathi,Santosh Tripathi Hon'ble Rajeev Misra,J.
1. Heard Mr. Vinay Saran, the learned Senior Counsel assisted by Mrs. Pragya Pandey, the learned counsel for applicant, Mr. Sanjay Kumar Yadav, the learned counsel for CBI and Mr. Santosh Tripathi, assisted by Mrs. Mandvi Tripathi, the learned counsel representing victim.
2. Perused the record.
3. This application under section 482 Cr.P.C. has been filed by accused-applicant- Uday Sarup, challenging the order dated 27.3.2024, passed by Additional Sessions Judge, Court No.l, Agra, in Sessions trial No. 538 of 2013 (State Vs. Uday Sarup and Others) arising out of Case Crime No. 267 of 2013, under Sections 302, 376, 376A, 201/34 IPC, Police Station- New Agra, District- Agra, whereby the application dated 16.12.2021 under Section 91 Cr.P.C. (paper no. 284 B) filed by accused-applicant for summoning certain documents has been rejected by Court below.
4. Record shows that in respect of an incident, which is alleged to have occurred on 15.3.2013, a prompt F.I.R. dated 15.3.2013 was lodged by first informant Inspector Rishpal Sharma and was registered as Case Crime No. 267 of 2013, under section 302 IPC.
5. The gravamen of the allegations made in the F.I.R. is to the effect that the daughter of first informant was put to death by causing injuries upon her by a sharp edged weapon. However, no one has been nominated as an accused in the F.I.R.
6. After aforemenitoned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by him during course of investigation, he came to the conclusion that complicity of following persons has emerged in the crime in question:- (i). Uday Sarup (the applicant herein) and (ii). Yashvir Sandhu. He, accordingly, submitted the Police Report dated 15.07.2013 (charge sheet) in terms of Section 173(2) Cr.P.C., whereby not named accused Uday Sarup and Yashvir Sandhu have been charge sheeted under sections 302, 376/511 IPC.
7. Upon submission of aforesaid police report (charge sheet), cognizance was taken upon same by concerned Magistrate in exercise of jurisdiction under section 190(1)(b) Cr.P.C. Since offence complained of is exclusively triable by the Court of sessions, therefore, the concerned Magistrate in compliance of Section 209 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trail No. 538 of 2013 (State Vs. Uday Sarup and Others) came to be registered. Concerned Sessions Judge, in line with Section 211 Cr.P.C. framed charges against charge sheeted accused, who denied the same and pleaded innocence. Resultantly, the trial procedure commenced.
8. During pendency of proceedings before the Sessions Judge as noted above, the investigation of concerned case crime number was transferred to CBI, vide Notification No. 1672/6-Pu-012-13-2(34)D/13 issued by the Government of U.P. as well as Notification No. 228/52/2013/AVD.II issued by the Ministry of Personnel, Public Grievances and Pension, Government of India, New Delhi.
9. Pursuant to above notifications, the CBI registered an FIR bearing RC No. 7(S)2013/CBI/SCIII/ND, Police Station-SCIII, Delhi.
10. After aforementioned FIR was registered, the CBI proceeded with further investigation of the crime in question. In furtherance of above, the exhibits for DNA Finger Printing Analysis were sent to the Center for DNA Finger Printing and Diagnostics (CDFD).
11. The DNA Finger Printing and Diagnotics (CDFD), Hyderabad submitted it's report dated 09.07.2014. The same was subsequently, marked as Exhibit-51. As per the said report, the biological fluid present on the vaginal slides matched with the DNA of applicant.
12. At this stage, the CBI directed applicant Uday Sarup to present himself for potency test. However, the applicant himself informed CBI that since he is potent, therefore, there is no occasion to conduct a potency test.
13. Relying upon the aforesaid CDFD report, the CBI submitted a supplementary police report (charge sheet) dated 31.12.2015, whereby applicant was charge sheeted under Sections 302, 376 and 201 IPC.
14. Accused-applicant, who was on bail, was again taken into custody.
15. The concerned Sessions Judge, in compliance of Section 211 Cr.P.C., framed charges against accused i.e. Uday Sarup, the applicant herein and Yashvir Sandhu, under Sections 302/34 and 201/34 IPC.
16. Applications for alteration of charge were filed by accused applicant as well as Public Prosecutor. The concerned Sessions Judge, vide order dated 05.01.2019, rejected the application under Section 216 Cr.P.C. filed by the applicant but allowed the application for alteration of charge filed by the Public Prosecutor. As a result, separate and distinct charges came to be framed against accused.
17. On 07.12.2021, the examination-in-chief of PW-42 Dr. (Smt.) Shruti Das Gupta, Technical Examiner of the Center for DNA Finger Printing and Diagnostics (CDFD) was done.
18. After the statement of PW-42 Dr. (Smt.) Shruti Das Gupta, Technical Examiner of the CDFD was recorded, accused-applicant filed an application dated 16.12.2021, under Section 91 Cr.P.C. (Paper No. 284-B) with the following prayer;-
"(a) Allow the present application under section 91 Cr.P.C. the applicant/accused and direct the prosecution to produce the documents/entire documentation/nothing/material pertaining to the differential lysis as well as the procedures from the laboratory CDFD Hyderabad as undertaken by the P.W. Dr. Shruti-Dasgupta resulting in the framing of the report 9.9.2014 so as to enable the applicant to effectively cross examine the PW Dr Shruti Dasgupta and to ensure that no prejudice to the legal and constitution rights would be caused to the applicant
(b) Direct the prosecution to make available for cross examination, all the evidence exhibited by the PW. Dr. Shruti Dasgupta during her Examination in Chief"
19. Vide order dated 21.12.2021, the concerned Sessions Judge observed that aforesaid application be kept pending and same can be pressed again on merits at a later stage if need be and directed cross examination of the said witness to continue. For ready reference, the order dated 21.12.2021 passed by Court below is reproduced herein under as same has material bearing in the facts and circumstances of the case;-
"पत्रावली पेश हुई। अभियुक्त उदय स्वरूप जेल में निरूद्ध हैं अभियुक्त यशवीर सिन्धू न्यायालय में उपस्थित है।
अभियुक्त उदय स्वरूप के विद्धान अधिवक्ता द्वारा प्रार्थनापत्र 284ब इस आशय से प्रस्तुत किया गया कि धारा 91 द०प्र०सं० के अर्न्तगत पी-डब्ल्यू 42 डा0 श्रुतिदास गुप्ता सी डी एफ डी हैदराबाद की मुख्य परीक्षा पिछली तिथि पर अंकित की जा चुकी है और पत्रावली पी-डब्ल्यू 42 डा0 श्रुतिदास गुप्ता से जिरह हेतु नियत है। अतः डा० श्रुतिदास गुप्ता को उनके द्वारा प्रस्तुत रिपोर्ट दिनांकित 09.09.2014 जिन आधारों पर प्रस्तुत की गई और किस प्रकिया को अपनाकर रिपोर्ट प्रस्तुत की गई, वह आधार एवं दस्तावेज प्रस्तुत किये जाने हेतु आदेशित किये जाने हेतु याचना की गई।
अभियोजन पक्ष की ओर से विशेष लोक अभियोजक द्वारा - प्रार्थनापत्र का विरोध किया गया ताी कहा गया कि अभियोजन साक्षी पी-डब्ल्यू 42 डा0 श्रुतिदास गुप्ता द्वारा दाखिल रिपोर्ट पत्रावली पर उपलब्ध है और साथ में इससे सम्बन्धित दस्तावेज वह लेकर न्यायालय में उपस्थित होगी। अतः प्रस्तुत प्रार्थनापत्र प्री-मैच्योर है।
उभय पक्ष को सुना एवं पत्रावली का अवलोकन किया।
पत्रावली के अवलोकन से स्पष्ट है कि चूँकि पी-डब्ल्यू 42 डा0 श्रुतिदास गुप्ता से अभी तक जिरह नहीं हुई है और जिरह में बचाव पक्ष के विद्धान अधिवक्ता विधि अनुसार प्रश्न पूछ सकते हैं और यदि कोई दस्तावेज ऐसा होगा जिसे न्यायालय मे पेश किया जाना आवश्यक है तो उस स्तर पर बचाव पक्ष द्वारा प्रस्तुत प्रार्थनापत्र 284ब का निस्तारण किया जाना न्यायोचित होगा।"
20. In the meantime, all the prosecution witnesses were examined and the statements of both the accused i.e. Uday Sarup (applicant herein) and Yashvir Sandhu were recorded under Section 313 Cr.P.C. on 19.03.2024.
21. The applicant herein namely Uday Sarup at this stage, before proceeding with his defence, pressed the aforesaid Application dated 16.12.2021 (Paper No. 284-B) (which was earlier postponed, vide order dated 21.12.2021) before the Trial Court. However, the same was dismissed by Court below by means of the order impugned dated 27.03.2024.
22. Thus feeling aggrieved by the above order dated 27.03.2024 passed by Additional Sessions Judge, Court No.-1, Agra in Sessions Trail No. 538 of 2013 (State Vs. Uday Sarup and Others), applicant, who is a charge sheeted accused, has now approached this Court by means of present application under section 482 Cr.P.C.
23. Mr. Vinay Saran, the learned senior counsel for applicant in support of present application has made the following submissions;
24. Court below has wrongly held that the Application dated 16.12.2021 (Paper No. 284B) was moved to delay the trial inasmuch as, vide order dated 21.12.2021 the trial judge himself postponed the hearing of the aforesaid application, to be pressed at a later stage and hence the application which was moved two years earlier i.e. on 16.12.2021 was pressed looking into the necessity and desirability to effectively press the defence case at the present stage of Section 243 Cr.P.C.
25. While postponing the hearing on 21.12.2021 the Court below itself held that the aforementioned application could be pressed at a later stage if any document would be required by the defence after the cross examination of PW-42 is over on the undertaking given by the State counsel that the witness would appear with all the related/connected documents.
26. Court below, while passing the order impugned, has failed to appreciate that the question was not regarding the admissibility of documents/reports (Ex.51) produced by the government scientific experts PW-42 under section 293 Cr.P.C. To the contrary, the Application No. 284-B was moved for summoning the very important Base Data known as 'Electropherograms' which formed the basis for opinion expressed by PW-42, vide report dated 09.07.2014. The aforesaid document is in the possession of CDFD, Hyderabad and are necessary, desirable and essential for effective defence of the applicant and just decision of the case.
27. In her cross examination PW-42 Dr. (Smt.) Shruti Das Gupta categorically admitted (page 86 of the Second Supplementary Affidavit) that 'Electropherogram' is the only base data, and there is no other inferable data to prove the Report (Ext.51). She further admitted that the Allelic Table which was sent with the report is made for common understanding only.
28. PW-42 Dr. (Smt.) Shruti Das Gupta categorically admitted that she could produce entire base data ie. 'Electropherogram' in the court if the court orders.
29. PW-42 Dr. (Smt.) Shruti Das Gupta has simply proved her conclusions noted in the form of the DNA report (the Allelic Table) submitted before the Court and marked as Exhibit-51 which she admits to be inferable data for common understanding, relevant extracts of her deposition is quoted below: "
ऊपर सीडीएफडी की सील थी जो कि कोर्ट में मेरे सामने खोली गयी। Ex.-51 की रिसीविंग और उसका जवाब हमें सीडीएफडी में वापस प्राप्त नहीं हुआ। इलेक्ट्रोफेरोग्राम मैं प्रोड्यूस (produce) कर सकती हूँ अगर माननीय न्यायाधीश जाहे। इलेक्ट्रोफेरोग्राम के अलावा और कोई डेटा (data) नहीं है। इंफेरऐबल (inferable) डेटा जिससे एक रिपोर्ट की पुष्टि होती है वो इलेक्ट्रोफेरोग्राम है। इलेक्ट्रोफेरोग्राम का जो डेटा है उसको अलीलिक टेबल जो (रिपोर्ट के साथ भेजी गई है) के तौर पर सामान्य लोगों के समझने हेतु रिपोर्ट में साथ संलग्न की जाती है।
30. The said DNA report and the Allelic Table etc. produced before the trial court and proved as Exhibit-51 by P.W. No. 42 are mere interpretations and conclusions drawn by her on the basis of examination of 'Electropherogram' prepared by the 'DNA Sequencer' which is a scientific instrument used to automate the DNA sequencing process and segregation. These machines produce a number of Graphs and Charts and produce a number of complicated data known as the Base Data. This base data is important to ascertain the correctness of the DNA Report prepared by PW-42. Hence it is necessary, desirable and essential that the said Base Data was summoned by Court below while exercising jurisdiction under Section 91 Cr.P.C.
31. For the sake of explanation, it is submitted that the said Base Data can be said to be analogous to an 'X-ray Plate' or 'ECG graph' which forms the basis of an X-Ray report or any report regarding heart health and conclusions whereof could differ on the basis of knowledge and level of expertise of the interpreter.
32. The finding that Electropherogram and other base documents mentioned in the application 284-B do not fall within the ambit of provisions of Section 91 of Cr.P.C. is also erroneous and bad. It is submitted that the definition of "Documents or things" defined under Section 3 of the Indian Evidence Act, 1872 and Section 3 (18) of the General Clauses Act, 1897 covers every written, printed or marked thing. Thus, the language of Section 91 Cr.P.C. is very wide.
33. The paramount consideration for exercising jurisdiction under Section 91 Cr.P.C. is necessity and desirability of the desired documents for just decision of a case. In support of above, reliance was placed upon paragraphs 38, 39 and 40 of the judgment of Suprme Court in Varsha Garg Vs. State of Madhya Pradesh & Others, 2022 SCC OnLine SC 986. The same read as under:-
"38. Section 91 CrPC empowers inter alia any Court to issue summons to a person in whose possession or power a document or thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the CrPC.
39. Section 91 forms part of Chapter VII of CrPC which is titled "Processes to Compel the Production of Things". Chapter XVI of the CrPC titled "Commencement of Proceedings before Magistrates" includes Section 207 which provides for the supply to the accused of a copy of the police report and other documents in any case where the proceeding has been instituted on a police report.25 Both operate in distinct spheres.
40. In the present case, the application of the prosecution for the production of the decoding registers is relatable to the provisions of Section 91 CrPC. The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found. The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower. The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other. The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing "is necessary or desirable for the purpose of any investigation, trial or other proceeding" under the CrPC. As already noted earlier, the power under Section 311 to summon a witness is conditioned by the requirement that the evidence of the person who is sought to be summoned appears to the Court to be essential to the just decision of the case."
34. The application dated 16.12.2021 under Section 91 Cr.P.C. (Paper No. 284B) was filed by the accused-applicant at appropriate stage as trial of accused-applicant was still going on. Any stage after the framing of charge is the appropriate stage for moving an application under Section 91 Cr.P.C. by an accused. In support of above, reliance is placed upon the following judgments:
• S.K. Singhal Fatehchand Singhal Vs. State of M.P. 1997 CRILJ 3145 (Para 5) • State of Rajasthan Vs. Swarn Singh @ Baba, 2024 LiveLaw (SC) 136 (Paragraph 7), • State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568 (Para 25, 27 and 28) • V.K. Sasikala. Vs. State (2012) 9 SCC 771 (Para 19)
35. The genesis of the aforementioned submissions urged by Mr. Vinay Saran, the learned Senior Counsel for applicant is to the effect that the CDFD report (Exhibit-51) is based upon certain material i.e. electophotogram. It was this basic material, which was prayed on behalf of applicant to be produced by PW-42 Dr. (Smt.) Shruti Das Gupta, who had prepared the CDFD report (Exhibit-51). In the absence of the same, the defence would be deprived of a very basic material to contradict the said report.
36. Per contra, Mr. Sanjay Kumar Yadav, the learned counsel for CBI, Mr. Santosh Tripathi, assisted by Mrs. Mandvi Tripathi, the learned counsel for first informant have vehemently opposed the present application. They submit that order impugned in present application is perfectly just and legal. No illegality has been committed by Court below in passing the order impugned. The application dated 16.12.2021 (Paper No. 284B) filed on behalf of accused before Court below was rendered infructuous as the cross examination of PW-42 (Dr. (Smt). Shruti Das Gupta), who had prepared the said report, is already over. The applicant ought to have challenged the order dated 21.12.2021 passed by Court below (which has already been quoted herein above) or he should have prayed that the cross examination of PW-42 (Dr. (Smt). Shruti Das Gupta) be deferred and the same be undertaken only after the trial reached the stage of defence evidence i.e. Section 243 Cr.P.C. It was at this stage that Court below could have summoned the desired documents at the behest of the accused-applicant and only thereafter, the defence could have cross examined PW-42 (Dr. (Smt). Shruti Das Gupta), who had prepared CDFD report (Exhibit-51). In the light of above, no illegality can be attached to the order impugned nor the order impugned passed by Court below is liable to be set aside as no party is entitled to claim benefit of his own wrong. Reference was also made to Sub-Section (2) of Section 465 Cr.P.C. It was further contended that since no application under Section 311 Cr.P.C. was filed by accused-applicant subsequently to recall PW-42 Dr. (Smt.) Shruti Das Gupta, no effective relief can be granted to applicant at this stage as the cross examination of aforementioned witness is now already over.
37. Mr. Sanjay Kumar Yadav, the learned counsel representing CBI has referred to the provisions contained in Section 293 Cr.P.C. and on basis thereof, he contends that Section 293 Cr.P.C. itself grants exemption to certain documents from being proved in a Court of law. The CDFD report dated 09.07.2014 (Exhibit-51) is clearly covered within the scope of Section 293 Cr.P.C. By means of the application dated 16.12.2021 under Section 91 Cr.P.C. (Paper No. 284B), accused-applicant indirectly wants to contradict the said report. He, therefore, contends that what cannot be done directly cannot be done indirectly. He has further concurred with the submission urged by the learned counsel for the victim that the present application is liable to be dismissed.
38. Having heard Mr. Vinay Saran, the learned Senior Counsel assisted by Mrs. Pragya Pandey, the learned counsel for applicant, Mr. Sanjay Kumar Yadav, the learned counsel representing CBI, Mr. Santosh Tripathi, assisted by Mrs. Mandvi Tripathi, the learned counsel representing victim and upon perusal of record, this Court finds that the following issues arise for consideration in present application;-
(a). What is the appropriate stage for an accused to file an application under Section 91 Cr.P.C., in case, the accused desires to rely upon the document sought to be summoned by the Court in support of his defence.
(b). Whether in the absence of any challenge to the order dated 21.12.2021 passed by Court below, the applicant can now re-agitate for summoning the desired documents as prayed by means of application dated 16.12.2021 under Section 91 Cr.P.C. (Paper No. 284B).
(c). Once the examination-in-chief of the person (Technical Examiner) namely Dr. (Smt). Shruti Das Gupta, who had prepared the CDFD report dated 09.07.2014 (Exhibit-51) has already been completed, the application dated 16.12.2021 (Paper No. 284B) has now been rendered infructuous for all practical purposes.
(d). Whether in view of the provisions contained in Section 293 Cr.P.C., which grants exemption to certain documents from being proved, therefore, the application dated 16.12.2021 under Section 91 Cr.P.C. (Paper No. 284B) filed by accused for summoning the Base Data i.e. Electropherogram was an indirect method adopted by the accused to overcome the rigour of Section 293 Cr.P.C.
(e) Whether in the facts and circumstances of the case, the ratio laid down by Apex Court in Varsha Garg (Supra), is attracted in the present case and therefore, the application dated 16.12.2021 under Section 91 Cr.P.C. (Paper No. 284B) filed by accused-applicant before Court below is liable to be allowed.
39. The first issue is taken first. In order to consider as to what is the appropriate stage for an accused to file an application under Section 91 Cr.P.C. before the Court for summoning certain documents, which is desired to be used in defence by the accused, it would be appropriate to first refer to Sections 242 and 243 Cr.P.C. respectively, which deal with different stages of evidence. For ready reference, the same are reproduced herein under:-
"Section 242 Cr.P.C.: Evidence of prosecution;-
(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241 the Magistrate shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing, (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution;
Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
"Section 243 Cr.P.C. : Evidence of defence;-
(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing;
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under Sub-Section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court."
40. The appropriate stage for an accused to invoke the power of trial judge under section 91 Cr.P.C. has been considered time and again by Apex Court. However, there is no necessity to reproduce the chronological order of the same as it will only add bulk to this judgment.
41. The issue as to at what stage, an accused is entitled to seek summoning of a document by the Court in exercise of jurisdiction under Section 91 Cr.P.C. in support of his defence came up for consideration before a Three Judges Bench of the Supreme Court in State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568. The Bench made following observations in paragraph 25 of the report, which has material bearing on the issue involved in present application. Consequently, paragraph 25 of the report is extracted herein below:-
"25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof."
42. Subsequently in Rajesh Talwar and Another Vs. CBI and Another, (2014) 1 SCC 628, Court has held that if the application under Section 91 Cr.P.C. has been filed at a very belated stage, the same is not liable to be entertained.
43. However, thereafter, the Apex Court in the case of Nitya Dharmananda @ K. Lenin and Another Vs. Gopal Sheelum Reddy @ Nithya Bhaktananda and Another, (2018) 2 SCC 93 has held that Court is not debarred from summoning any such document, which has not been made part of the charge sheet but the said material is of sterling quality and has been withheld by the Investigator/Prosecutor. Paragraphs 7 and 8 of the report are relevant for the controversy in hand and are, accordingly, reproduced herein under:-
"7. In Hardeep Singh Etc. versus State of Punjab and ors. Etc. (2014) 3 SCC 92 a Bench of five-Judges observed:
"19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."
8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge."
44. Ultimately, in State of Rajasthan Vs. Swarn Singh@ Baba (Supra), the Court considered the earlier judgments in State of Orissa Vs. Debendra Nath Padhi (Supra) and also the subsequent judgment in Nitya Dharmananda @ K. Lenin and Another (Supra). Paragraph 7 of the report in State of Rajasthan Vs. Swarn Singh@ Baba (Supra) deals with the principle of binding precedent. Accordingly, same is extracted herein under:-
"7. The learned counsel for the respondent has relied upon the decision in the case of Nitya Dharmananda Vs. Gopal Sheelum Reddy, (2018) 2 SCC 93, to submit that the court being under the obligation to impart justice, is not debarred from exercising its power under Section 91 Cr.P.C., if the interest of justice in a given case so requires. However the said decision is not helpful to the respondent. In the said decision also, it has been observed that the accused cannot invoke and would not have right to invoke Section 91 Cr.P.C. at the stage of framing of charge. In view of the law laid down by the Three Judge Bench in State of Orissa Vs. Debendra Nath Padhi, (supra), we are inclined to accept the present appeal."
45. It is thus evident that the appropriate stage for filing an application under Section 91 Cr.P.C. and for summoning for documents is the one as provided in the case of State of Orissa Vs. Debendra Nath Padhi (Supra).
46. So far as the second and third issues are concerned, this Court finds that they are interlinked and connected. Therefore, the same are being taken up together. It is an undisputed fact that the application dated 16.12.2021 under Section 91 Cr.P.C. (Paper No. 284B) was filed on behalf of accused at the stage of prosecution evidence. However, the said application was not entertained by Court below at that stage and the hearing of the same was deferred, vide order dated 21.12.2021, which has already been quoted above. Accused-applicant did not challenge the order dated 21.12.2021 and even in the absence of the documents, which were desired to be summoned, vide application dated 16.12.2021 proceeded to cross examine PW-42 Dr. (Smt.) Shruti Das Gupta, Technical Examiner, who had prepared the CDFD report dated 09.07.2024 (Exhibit-51). At this stage, reference may also be made to Sub-Section (2) of Section 465 Cr.P.C. After the stage of prosecution evidence was over and the statements of the accused under section 313 Cr.P.C. were also recorded, the accused-applicant pressed the application dated 16.12.2021. In view of above, Court below rejected the said application by means of impugned order dated 27.03.2024. Since there is no provision in Cr.P.C. of going back except in limited circumstances provided under Section 311 Cr.P.C., no illegality can be attached to the order impugned. Admittedly, the application dated 16.12.2021 under Section 91 Cr.P.C. (Paper No. 284B) was filed by the accused for summoning of certain documents by the Court so that effective cross examination of PW-42 Dr. (Smt.) Shruti Das Gupta could be undertaken on behalf of the accused with reference to the base material on the basis of which, the CDFD report dated 09.07.2014 (Exhibit-51) was prepared. It is the admitted case of accused-applicant before this Court that cross examination of PW-42 Dr. (Smt.) Shruti Das Gupta has already been undertaken on behalf of the accused. Since no application under Section 311 Cr.P.C. was filed by accused-applicant subsequently to recall PW-42 Dr. (Smt.) Shruti Das Gupta, no effective relief can be granted to applicant at this stage as the cross examination of aforementioned witness is now already over. As such, the prayer prayed for by means of the application dated 16.12.2021 has now been rendered infructuous.
47. In respect of issue no. 3, this Court finds that Section 293 Cr.P.C. provides exemption to certain documents for being proved in a Court of law. For ready reference, the section 293 Cr.P.C. is reproduced herein below:
"Section 293(1) in The Code of Criminal Procedure, 1973 (1)Any document purporting to be a report under the hand of a Government scientific expert to whom this Section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code."
48. By means of application dated 16.12.2021, a prayer was made on behalf of applicant to direct the PW-42 Dr. (Smt.) Shruti Das Gupta, who has prepared the CDFD report, to produce electophotograms. On the basis of which the CDFD report was prepared. The prayer on behalf of accused may appear to be innocuous at the first flush but upon deeper scrutiny, it is found to be devoid of substance. Section 293 Cr.P.C. itself grants exemption to certain documents for being proved in a Court of law. Once the statutory exemption is there, no direct or indirect evidence can be considered to examine the veracity/correctness of the same. Therefore, the application dated 16.12.2021 was engineered to summon certain document on the basis of which the CDFD report (Exhibit-51) could be contradicted. Once the law itself prohibits any such exercise then on the accepted principle of jurisprudence that what cannot be done directly, cannot be done indirectly, stands evoked. As a result, this Court finds that no illegality has been committed by Court below in passing the order impugned.
49. In view of the conclusions drawn by this Court in respect of issues no. 1, 2, 3 and 4, which have arisen for consideration in this application, issue no. 4 is now academic in the context of the present case. As such, it is not necessary to deal with the same.
50. In view of the discussions made above, this Court finds that Court below, while passing the order impugned, has neither committed a jurisdictional error nor has it exercised it's jurisdiction with material irregularity so as to vitiate the order impugned warranting interference by this Court in exercise of jurisdiction under Section 482 Cr.P.C.
51. As a result, the present application fails and is liable to be dismissed.
52. It is, accordingly, dismissed.
Order Date :- 31.08.2024 Vinay