IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.792 OF 2018 BETWEEN:
SMT. MANJULA W/O. NAGARAJ, AGED ABOUT 41 YEARS, RESIDENT OF GANDHI NAGAR, KOLAR TOWN, KOLAR DISTRICT.
... PETITIONER AND:
(BY SRI VEERANNA G. TIGADI, ADV.) THE STATE OF KARNATAKA REPRESENTED BY SUB-INSPECTOR OF POLICE, ANDERSONPET POLICE STATION, K.G.F., KOLAR DISTRICT, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU.
(BY SRI K.P. YOGANNA, H.C.G.P.) * * * ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF THE CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 4-7-2018 DISMISSING THE APPLICATION UNDER SECTION 91 OF THE CR.P.C. FILED BY THE PETITIONER IN S.C. NO.81 OF 2013 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, KOLAR AND BY ALLOWING THE SAID APPLICATION, AND DIRECTING THE TRIAL COURT TO ISSUE SUMMONS TO P.W.1-RUKMINI, C.W.C., K.G.F., TO PRODUCE THE DOCUMENTS AS PRAYED FOR IN THE APPLICATION.
THIS CRIMINAL REVISION PETITION IS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This revision petition is filed by the petitioner- accused No.1 being aggrieved by the order passed by the II Additional District and Sessions Judge, Kolar, in Sessions Case No.81 of 2013 dated 4-7-2018.
2. Heard the learned counsel for the petitioner as well as the learned High Court Pleader for the respondent- State.
3. The case of the petitioner before the trial Court is that the respondent-Police filed a charge-sheet against the petitioner and others for the offences punishable under Sections 366A, 376 and 506 read with Section 34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act. The petitioner along with other accused is facing trial before the said Court. After framing of charges, during evidence of the prosecution witnesses, the petitioner, being accused No.1, filed an application under Section 91 of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’) for summoning the documents from P.W.1, who is the Superintendent, working in Child Welfare Committee, Andersonpet, K.G.F. and under Section 311 of the Cr.P.C. to recall P.W.1 and others for further cross-examination. After hearing the arguments, the learned Sessions Judge allowed the application filed under Section 311 of the Cr.P.C. for recalling the witnesses, but dismissed the application filed under Section 91 of the Cr.P.C. for summoning certain documents pertaining to C.W.2- prosecutrix, vide order dated 4-7-2018.
4. The case of the prosecution is that the petitioner, who was working in Child Helpline, is said to have produced the victim girl before the Child Welfare Committee. Thereafter, the child was released to one Narayanamma, who is said to be the aunt of the victim girl and later, it was alleged that the accused and one Nagaraj went to the house of Narayanamma and took the victim girl along with them and used her for human trafficking.
5. During examination of P.W.1, who is the former Superintendent of Child Welfare Committee, Andersonpet, K.G.F., it is elicited that the documents in respect of the prosecutrix was within the custody of the Child Welfare Committee, K.G.F. and she further stated that, she has no objection to produce the documents before the Court. Subsequently, the learned counsel for the petitioner appearing in the trial Court filed an application for summoning those documents from P.W.1, after unsuccessful to get the documents under the Right to Information Act. After considering the application, the trial Court held that the documents cannot be summoned at the instance of the accused as the said documents are no way concerned with the case.
6. Learned counsel for the petitioner has contended that the trial Court even without looking to the documents rejected the application, which is not correct. When there is clear evidence adduced by P.W.1 that she has no impediment to produce the documents before the Court, the trial Court ought to have summoned those documents even without filing the application. Further, the trial Court without ascertaining the documents, whether it is relevant or irrelevant jumped into the conclusion and rejected the application. Hence, he prayed for allowing the revision petition.
7. Per contra, the learned High Court Government Pleader has contended that the said documents are not relevant for consideration and no such contention is taken in the further cross-examination. Hence, he prayed for dismissing the revision petition.
8. Upon hearing the rival contentions and perusing the record, in my considered opinion, once the accused has taken the said contention in cross-examination dated 19-7-2018 and the same was already brought on deposition, once again the learned counsel cannot raise such contention in cross-examination, as the trial Court has already rejected the application in respect of the said documents.
9. Therefore, the only point that arises for consideration before this Court is, whether the trial Court has committed an error in rejecting the application holding that the documents are not necessary for disposal of the case.
10. The main allegation against this petitioner is that, she herself brought the victim girl and produced before the Child Welfare Committee and later, the victim girl was released to the custody of one Narayanamma, aunt of the victim girl. Thereafter, the accused took the victim girl from Narayanammma and used her for human trafficking. She has not produced any documents with regard to release of the victim girl to the custody of Narayanamma and the said documents may be necessary for deciding the matter. Such being the case, when P.W.1 herself stated she has no impediment to produce the documents before the Court, the trial Court ought to have summoned those documents from P.W.1 to know the veracity of the documents. However, the petitioner filed an application before the Superintendent of Child Welfare Committee, K.G.F., under the Right to Information Act to furnish the entire file of the prosecutrix, but as it was not a public document, the same was not issued. Hence, the trial Court ought to have summoned those documents from P.W.1. Therefore, looking to the facts and circumstances of the case and the veracity of the defence that the documents are not relevant for consideration is not correct. Relevancy must be considered only at the final stage. Hence, the order under revision deserves to be set aside. However, it is brought to the notice of this Court that P.W.1 is retired from service. Therefore, the documents may be summoned from the present Superintendent of Child Welfare Committee. Accordingly, I pass the following:
O R D E R i) The revision petition is allowed;
ii) The order dated 4-7-2018 dismissing the application filed under Section 91 of the Cr.P.C. passed by the II Additional District and Sessions Judge, Kolar, in Sessions Case No.81 of 2013 is hereby set aside;
iii) The trial Court is directed to summon the said documents pertaining to the prosecutrix from the custodian of the documents by marking the same before the Court. If necessary, it could be marked as the Court documents;
iv) The trial Court is directed to dispose off the matter as early as possible; and v) The petitioner shall not drag the matter unnecessarily.
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JUDGE