Delhi District Court
Jaya vs The State Nct Of Dlehi on 4 August, 2023
IN THE COURT OF SHRI SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 491/2022
CNR No. DLCT01-012841-2022
Jaya
D/o O. P. Sharma,
Resident of Chamber No.1322,
Rohini Courts,
Delhi. ....Revisionist
Versus
1. The State
(Government of NCT of Delhi)
2. Sunny Dutta
son of Late Satish Dutta
R/o House No.G-72, Third Floor,
Kiran Garden, Uttam Nagar,
Delhi.
3. Varun Dutta
son of Harish Dutta
R/o House No. 8115, 2nd Floor,
Roshanara Road,
Delhi. ....Respondents
Reserved on : 06.05.2023
Pronounced on : 04.08.2023
JUDGMENT
This is a revision under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (in short 'CrPC') filed by the victim against the order dated 17.08.2022 passed by the learned Metropolitan Magistrate (Mahila Court-02), Central C. R. No. 491/2022 Jaya v. The State 1 District, Tis Hazari Courts, Delhi, in Case FIR No. 448/2014, Police Station Subzi Mandi under sections 323, 354, 341, 506 and 509 of the Indian Penal Code, 1860 (in short, 'IPC'), whereby the application moved by the revisionist-victim for providing the copy of CD for the purpose of refreshing memory before recording her evidence was dismissed with cost of rupees 2,000/-.
2. I have heard the arguments on behalf of the revisionist and State-respondent no.1. None has appeared on behalf of respondents no. 2 and 3 (accused) after service of the notice of revision upon them.
Submissions
3. Ms. Amrita Dhami, learned counsel appearing for the revisionist-victim has submitted that copy of CD is required for the revisionist before leading the evidence for the purpose of refreshing memory and other purposes also. The learned Trial Court had not marked the presence of revisionist after lunch (02:30 PM) while she appeared before learned Trial Court as per the order of Hon'ble Court.
4. Ms. Dhami further submitted that learned Trial Court had not only dismissed the application of revisionist but also imposed the cost of rupees 2,000/- and ignored the fact that Investigating Officer submitted that he had retired from the service and has not brought laptop on 17.08.2022, which was ordered by learned C. R. No. 491/2022 Jaya v. The State 2 Trial Court earlier and, insisted the revisionist to lead her evidence without refreshing memory.
5. Learned Additional Public Prosecutor for State-respondent no. 1 has not opposed the revision petition.
Analysis and Conclusion
6. Case instituted on police report is pending before learned Trial Court at the stage of prosecution evidence. During said stage, an application under section 91 of the CrPC which was forwarded by the learned Assistant Public Prosecutor for the State was moved by the revisionist-victim for supplying of copy of CD, which is already on record. Said application was dismissed by the learned Trial Court by impugned order dated 17.08.2022. The reasons for rejection of the said application by the learned Trial Court as mentioned in the impugned order are that the CD containing the CCTV footage installed in the Court premises, has already been played at the stage of charge and according to Court observation, nothing visible is in the CD apart from blurred scuffle between the parties; that there is no requirement to summon the CD because same is already a part of judicial record and therefore, the application is beyond the scope of section 91 of the CrPC; that as per section 159 of the Indian Evidence Act the witness can be allowed to refresh her memory only during her examination and that too by seeing any document/writing of the witness and, in the present case, the CCTV footage is not a document of the complainant (revisionist-
C. R. No. 491/2022 Jaya v. The State 3victim) and therefore, same cannot be relied by her for refreshing her memory.
7. By the impugned order, application under Section 91 CrPC moved by the revisionist - victim was dismissed. As per law laid down by Hon'ble Supreme Court in Sethuraman v Rajamanickam, Criminal Appeal No. 486-487/2009 decided on 18.03.2009 order on application under section 91 CrPC for production of documents is the order of interlocutory nature, in which case revision under section 397(2) of the CrPC is not maintainable. The application under section 91 of the CrPC was filed for the purpose of supplying of copy of CD which is already on record. As the CD which is already on record, the application under section 91 CrPC is not maintainable because under the said provision the person in whose possession or power such document or other thing is believed to be, is summoned requiring him to attend and produce it. But in the present case, the said document / other thing is already part of the chargesheet. By way of the said application, the revisionist - victim wants to get copy of the CD for the purpose of refreshing her memory before recording of her evidence. In the impugned order itself, it is made clear that the revisionist herein is not precluded from seeing the contents of the CD when it is played in the open Court for clarification of the Court.
8. In view of above discussion, this Court is of the view that revision against the impugned order which was passed on application under Section 91 CrPC is not maintainable and if same is maintainable, then this Court does not find any illegality, C. R. No. 491/2022 Jaya v. The State 4 irregularity or impropriety in the impugned order by dismissing the said application.
9. But while dismissing the said application, Learned Trial Court had imposed cost of rupees 2000/- to be deposited with DLSA. To my mind, cost cannot be imposed upon the revisionist-victim while dismissing the said application because as per Explanation 2 to sub- section (2) of section 309 of CrPC, the cost may be imposed upon the prosecution or the accused while adjourning or postponing the case. The victim - revisionist is neither prosecution nor accused. Further, the victim is not prosecuting the case as per section 302 of the CrPC. Hence, the impugned order to the extent of imposing cost upon the revisionist - victim is set aside.
10. The revision petition is disposed of accordingly.
Digitally signed by SANJEEV SANJEEV KUMAR Dated: 04.08.2023 KUMAR Date: 2023.08.04 16:11:01 +0530 (Sanjeev Kumar-II) Special Judge, (NDPS)-02, Central District, Tis Hazari Courts, Delhi C. R. No. 491/2022 Jaya v. The State 5