[1.0] As common question of law and facts arise in both these revision applications, they are disposed of by this common judgment and order. [1.1] Both these Criminal Revision Applications under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) have been preferred by the applicant – State of Gujarat through Investigating Officer, Special Investigation Team (SIT) constituted to investigate the cases arising out of the riots that had taken place in State of Gujarat to quash and set aside the impugned common order dated 18.06.2012 passed below application Exhs.929 and 930 in Sessions Case No.203 of 2009 by the learned Principal City Civil and Sessions Court, Ahmedabad, by which the said applications submitted by the prosecution to issue summonses to the concerned person or Nazir to produce the CD and DVD produced by the concerned IO as muddamal article in Sessions Case No.152 of 2002 arising out of FIR being IC.R. No.67/2002 of Meghaninagar Police Station (Gulbarg Society case) as well as to produce certain hardware produced by the witness Shri Ashish Khaitan, as enlisted in para 2 of the said application, during the course of his evidence recorded before the Court trying the aforesaid Sessions Case No.152 of 2002 (Gulbarg Society case), in exercise of powers under Section 91 of the CrPC.
[2.0] Facts for deciding the issue involved in the present petition, in nutshell, are as under:
[2.1] Sessions Case No.203 of 2009 relates to one of the Godhra riot cases i.e. Naroda Gam, in which, respondent No.1 Babu @ Babu Bajrangi Rajabhai Patel is accused No.23 and respondent No.2 – Dr. Jaydip Ambalal Patel is accused No.58, both belong to Bajrang Dal and Vishwa Hindu Parishad (“VHP” for short) respectively. Both of them are facing trial for the offences punishable under Sections 143, 147, 148, 149, 153(A)(B), 201, 217, 218, 221, 109, 295, 295(A), 297, 323, 302, 307, 114, 120B read with 188 of the Indian Penal Code and 135(1) of the Bombay Police Act. That the said offences are alleged to have been committed on the wake of Gujarat Bandh declared by the VHP and Bajrang Dal in response to setting on fire on Coach No.S6 of Sabarmati Express Train carrying Kar Sevaks at Ayodhya at the same place after demolition of Babri Masjid and while they were returning in Sabarmati Express Train, the aforesaid S6 Coach was set on fire at Godhra Railway Station on 27/02/2002 resulting into death of many Kar Sevaks. During Bandh Call, several areas in different parts of State of Gujarat including Naroda Gam (Village), which is subject matter of the present petition, saw the aftermath termed as wrath with vengeance on the person and properties of Muslim Community wherein in all 11 persons have lost their lives and properties of Muslim Community were damaged and set on fire.
[2.2] A Special Investigating Team is investigating the aforesaid case and is making further investigation pursuant to the directions issued by the Hon'ble Supreme Court and at present further investigation is going on.
[2.3] It is to be noted that investigation of the aforesaid offence was carried out firstly by Police Officer of Naroda Police Station and by Detection of Crime Branch (DCB), Ahmedabad City.
However, writ petitions were preferred before the Hon'ble Supreme Court by National Human Rights Commission and other NGOs, wherein the Hon'ble Supreme Court has passed an order by constituting a Special Investigation Team (SIT) respondent No.2 herein and according to the judgement and order passed by the Hon'ble Supreme Court, the aforesaid offence registered with Naroda Police Station, is ordered to be further investigated under Section 173 of the Code of Criminal Procedure.
[2.4] It appears that after registration of the offence and before the SIT took over the investigation, chargesheets were filed against several accused persons and after SIT took over investigation and on conclusion of further investigation including against some more persons SIT filed chargesheet and supplementary chargesheet.
[2.5] it is the case on behalf of the applicant that during the course of investigation a fact came to be revealed that one Mr.Ashish Khaitan of Tahelka News Channel had conducted a Sting Operation in the year 2007 and as per the order passed by the NHRC, who had directed the CBI, Mumbai to seize the Spy Camera, Recorder and Compaq Disk on which the facts of sting operation were recorded by the Tahelka News Channel. It appears that the the CBI, Mumbai seized the said articles from Tahelka News Channel and had sent the same for its scientific test to FSL, Jaipur. It is the case on behalf of the applicant that the above facts had come to the knowledge of the investigation officer of SIT, statement of aforesaid Mr.Ashish Khaitan of Tahelka News Channel was recorded on 19/1/2009, 24/1/2009 and 12/3/2009 as a witness and he had produced CD on which the facts of sting operation were recorded and he is cited and shown as a Witness No.178 in the chargesheet. It appears that the articles recovered by CBI, Mumbai were sent to FSL, Jaipur and the same were examined scientifically and the original articles along with the findings of the scientific report were forwarded by FSL, Jaipur to the CBI, Mumbai. It appears that during the course of the investigation, SIT requested CBI Mumbai to hand over original DCV/CB of the string operation conducted by witness Mr.Ashish Khaitan. It appears that the telecast of the sting operation was published on 27/10/2007 by purchasing the rights of the said sting operation by the Company “TV Today Network” and on the TV Channel “Ajtak” under the caption of “Operation Kalank”.
[2.6] It appears that the aforesaid Ashish Khaitan, reported to serving in Tahelka News Channel from December, 2006 to September, 2007 impersonated himself as Piyush Agrawal at the instance of one Mr.Tarun Tejpal, Editor in Chief to probe into one ransom occurred in respect of one painting in MS University, Baroda at the behest of members of VHP and to find out at whose behest the said incident took place. That during his mission to probe into the incident, the said Mr.Ashish Khaitan met one Mr.Dhimant Bhatt, Chief Auditor of MS University and during the course of discussion, a talk of riots occurred in 2002 surfaced and therefore, the said witness thought it fit to inquire into and about the said incident of violence occurred in the year 2002 in the State of Gujarat. So, Mr.Ashish Khaitan inquired about the persons who could help him in searching the events leading to the riots of 2002. It appears that he met various members of VHP and Bajrang Dal and gave them belief that he is writing a book on Hindutva and so he is researching on the subject and further he made believed them that after Godhra incident, there is a Hindutva revival in Gujarat and accordingly, various members of VHP and Bajrang Dal were instigated to disclose the information on riots, which was within their special knowledge and more particularly, for three cases i.e. Naroda Patiya, Naroda Gam (Village) and Gulmarg Case. The aforesaid Mr.Ashish Khaitan conducted sting operation through Spy Camera, whereby conversation which took place between respondent No.1 – accused No.23 and respondent No.2 – accused No.58, respectively, came to be recorded and videographed.
[2.7] The aforesaid DVD/CD, Spy Camera etc. came to be seized by the CBI, Mumbai pursuant to the directions issued by NHRC, which has been recovered by the investigating officer of SIT during the course of the further investigation and therefore, SIT, during the course of the further investigation and further conducting the investigation, submitted application Exh.337 before the Additional Sessions Judge, before whom the aforesaid case is going on, with a prayer to direct the respondents herein – original accused to accompany investigating officer to take their voice sample.
[2.8] That the aforesaid application Exh.337 was opposed by respondents herein – original accused Nos.23 and 58. That by order dated 04.03.2010, the learned trial Court rejected the said application holding that investigating officer has no power to obtain voice sample for comparison purpose under section 73 or section 45 of the Evidence Act, 1872 or under any other law for the time being in force, pending trial and it is ultimately for the concerned Judge/Court to exercise power of comparison which is vested in the Court only in exercise of powers under Section 73 or section 45 of the Evidence Act. Being aggrieved and dissatisfied with the order passed dated 04.03.2010 by the learned trial Court rejecting the application Exh.337 in Sessions Case No.203/2009, applicant preferred Special Criminal Application No.1433/2010 before this Court which came to be allowed by this Court by judgment and order dated 06.12.2010 and this Court quashed and set aside the order dated 04.03.2010 passed by the learned trial Court below application Exh.337 and allowed the said application Exh.337 and allowed the applicant SIT/concerned investigating officer to record voice sample of the accused – respondents herein.
[2.9] It appears that thereafter pursuant to the aforesaid order passed by this Court in aforesaid Special Criminal Application No.1433/2010, the SIT approached the All India Radio, Akashvani Bhavan, Ahmedabad. However, the All India Radio shown their inability and thereafter voice sample of respondents herein A23 and A58 have been recorded at FSL, Gandhinagar on 28.01.2011.
[2.10] It appears that it is the case on behalf of the SIT that so far as original DVDs and CDs, on which the said sting operation was copied from hard disk, are concerned, the same were seized by the CBI, Mumbai at the instance of NHRC from one Shri Ashish Khaitan as well as Shri Dipak Jamnalal Sharma and the said DVDs and CDs were send by CBI, Mumbai to FSL, Gandhinagar for its scientific analysis. According to the prosecution, same were analyzed by FSL, Jaipur and by its report dated 09.02.2009, FSL, Jaipur had opined that no editing, alteration or tampering was detected in the audio video recordings and their respective voice track recorded in the said DVDs. According to the applicant investigating agency, during the course of investigation by SIT, the said DVDs and CDs were produced by the IO of the SIT in the Gulbarg Society case after getting it from CBI, Mumbai and the said original DVDs and CDs analyzed by the FSL, Jaipur and are at present lying with the Nazir of the trial Court conducting the trial of the Gulbarg Society case. Therefore, the applicant preferred an application Exh.793 in Sessions Case No.203/2009 on 11.02.2011 interalia praying to hand over the muddamal parcel containing DVDs and CDs produced at Exh.1488 in the case registered as IC.R. No.67/2002 of Meghaninagar Police Station, which is numbered as Sessions Case No.152/2002 and other cognate matters for comparison of voice contained in the said CD and that the voice sample of A23 Babu @ Babu Bajrangi Rajabhai Patel and A58 Dr. Jaydipbhai Ambalal Patel obtained by the FSL, Gandhinagar, pursuant to the aforesaid judgment and order passed by this Court in Special Criminal Application No.1433/2010. It appears that the trial Court passed an order dated 01.03.2011 whereby the prosecution was directed to furnish the information/evidence on the points stated therein on oath. That the SIT as per the directions contained in the aforesaid order dated 01.03.2011, submitted an affidavit of the IO dated 04.03.2011. It appears that during the pendency of the said application Exh.793, an application Exh.1547 was also made to the learned Judge trying Gulbarg Society Case, wherein the original DVDs and CDs are lying wherein also identical prayer was made to hand over the said DVDs and CDs for the purpose of comparison of the voice. It appears that the said application came to be rejected by the learned Judge trying the Gulbarg Society case vide order dated 21.02.2011. However, in the said order, the learned Judge has clarified that if the learned Judge of the Naroda Gam Patiya case passes an order in this regard, then he has no objection to hand over the said DVDs and CDs. That thereafter the learned Additional Sessions Judge, Court No.3, City Sessions Court, Ahmedabad vide impugned order dated 08.03.2011 passed below application Exh.793 in Sessions Case No.203/2009 has rejected the said application Exh.793.
[2.11] That being aggrieved and dissatisfied with the order passed by the learned Additional Sessions Judge, Court No.3, City Sessions Court, Ahmedabad dated 08.03.2011 below application Exh.793 in Sessions Case No.203 of 2009, the applicant herein State of Gujarat through SIT again approached this Court by way of Special Criminal Application No.760 of 2011 and by a detailed judgment and order dated 04.07.2011, this Court allowed the said Special Criminal Application quashing and setting aside the order passed by the learned trial Court below Exh.793 and by allowing the said application Exh.793 directed the concerned Court to handover the muddamal parcel containing DVDs/CDs produced at Exh.1488 in the case registered as C.R. No.I67/2002 of Meghaninagar Police Station which is numbered as Sessions Case No.152/2002 and other cognate matters, for comparison of voice contained in the said CD/DVD with the voice sample of respondents herein – original accused A23 Babu @ Babu Bajrangi Rajabhai Patel and A58 Dr. Jaydipbhai Ambalal Patel, obtained by the FSL, Gandhinagar in a sealed cover, so as to enable them to send it to the FSL, Jaipur. This Court also directed the investigating agency to see that the report from the FSL, Jaipur is received by them at the earliest so that trial of the case is concluded at the earliest.
[2.12] It appears that thereafter pursuant to the direction issued by this Court in its judgment and order dated 04.07.2011 passed in Special Criminal Application No.760 of 2011, the DVDs/CDs produced at Exh.1488 in Sessions Case No.152 of 2002 was handed over to the IO for comparison of voice contained in the said CD/DVD with the voice sample of aforesaid two accused persons and were sent to the FSL, Jaipur. It appears that thereafter the FSL, Jaipur had submitted its report and has returned the muddamal consisting of Cds/DVDs in the custody of the Court conducting Sessions Case No.152 of 2002. Thus, the custody of the original and recording equipments is with the Court Officer of Special Designated Court trying Sessions Case No.152 of 2002.
[3.0] That one Shri Ashish Khaitan who is cited as a witness was required to be examined in the trial of Sessions Case No.203 of 2009 to produce the CDs as well as the recording equipments which were used during the sting operation and which is the part of the evidence in Sessions Case No.152 of 2002 and therefore, the investigating agency submitted the applications Exh.929 and 930 under Section 91 of the CrPC to issue summonses to the concerned person or Nazir of the Court trying Sessions Case No.152 of 2002, to produce the CD/DVD produced by the concerned IO, which is in custody of the Court/Court Officer as muddamal articles in Sessions Case No.152 of 2002 arising out of IC.R. No.67/2002 of Meghaninagar Police Station (Gulbarg Society case) as well as to produce certain hardware produced by witness Shri Ashish Khaitan as enlisted in para 2 of the said application which he has produced during the course of evidence recorded before the Court trying the Sessions Case No.152 of 2002 (Gulbarg Society case). That it was the case on behalf of the prosecution / investigating agency that production of Cds/DVDs produced at Exh.1488 in Sessions Case No.152 of 2002 and certain hardware produced by witness Shri Ashish Khaitan produced by him during the course of evidence recorded before the Court trying the Sessions Case No.152 of 2002 (Gulbarg Society case) are very much necessary to prove the case against the accused persons more particularly aforesaid two accused persons. It was submitted that if the summonses are not issued to the concerned person/Nazir to produce the aforesaid, case of the prosecution will be severely prejudiced. It was also submitted that if the application Exhs.929 and 930 are not allowed, in that case, it would virtually nullify the earlier orders passed by this Court passed in Special Criminal Application Nos.1433 of 2010 and 760 of 2011 and the purpose for which the earlier application Exh.337 permitting to record the voice samples of A23 and A58 and thereafter, allowing the application Exh.793 directing the concerned Court to hand over the aforesaid muddamal to the investigating agency to sent it to the FSL, Jaipur for comparison of voice contained in CD/DVD with the voice sample of A23 and A58 would be frustrated. Therefore, it was requested to allow the aforesaid applications.
[4.0] The aforesaid two applications were opposed by the original accused by submitting that no summons under Section 91 of the CrPC can be issued to the Court. It was submitted that the powers under Section 91 CrPC can be exercised only qua the person in whose possession or power any material or thing is lying. It was submitted that the Court in whose custody/possession, the concerned muddamal is lying cannot be said to be “person” and therefore, no summons can be issued as prayed for under Section 91 of the CrPC.
[5.0] Learned Special Designated Judge trying the Naroda Gam case accepted the submission on behalf of the accused persons and by impugned order has rejected both the applications Exh.929 and 930 by observing that the powers under Section 91 of CrPC can be exercised only qua the “person” in whose possession or power any material or thing is lying and in the instant case, the prosecuting agency has prayed to issue summons to the 'Court' which is not a 'person' as defined under Section 11 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The learned Special Designated Judge observed that Section 91 of the CrPC does not empower the Court to issue any summons to the 'Court'. The learned Special Designated Judge while passing the impugned common order has also observed that the Court also cannot exercise its power under Section 451 of CrPC for its custody as the muddamal articles in question are not in the custody of the Court.
[6.0] Feeling aggrieved and dissatisfied with the impugned common order passed by the learned Special Designated Judge trying Naroda Gam case being Sessions Case No.203 of 2009, the applicant – State of Gujarat through SIT has preferred the present Criminal Revision Applications.
[7.0] Shri Jayant M. Panchal, learned Special Public Prosecutor appearing with Shri A.Y. Kogje, learned advocate appearing on behalf of the applicant has vehemently submitted that as such the learned Special Designated Judge has not properly appreciated the scope and ambit of the powers to be exercised under Section 91 of the CrPC. It is submitted that the learned Special Designated Judge has not properly appreciated and/or has as such misinterpreted the provisions of Section 91 of the CrPC. It is submitted that the learned Special Designated Judge has materially erred in considering the fact that the prayer of the investigating agency was to issue summonses to the Court to produce muddamal articles lying with the Court trying Gulbarg Society case i.e. Sessions Case No.152 of 2002. It is submitted that as such the prayer of the investigating agency was to issue summons to the concerned person or Nazir of the concerned Court to produce the muddamal articles in question which is produced in Sessions Case No.152 of 2002 and certain hardware produced by witness Shri Ashish Khaitan during the course of evidence recorded before the Court trying the Sessions Case No.152 of 2002 (Gulbarg Society case).
[7.1] It is further submitted by Shri Panchal, learned Special PP that not only that but the learned Special Designated Judge has not exercised the jurisdiction vested in it under Section 91 of the CrPC. It is submitted that as such the learned Special Designated Judge has not properly appreciated the purpose for which the muddamal articles were to be produced in the present case/trial. It is submitted that whenever any Court or any officer incharge of a police station considers that the production of any document or other thing is necessary were desirable for the purpose of any investigation, inquiry, trial or other proceedings, under the CrPC by or before such Court or Officer, such Court may issue summons 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. It is submitted that the production of muddamal articles which is lying in the Court trying the Gulbarg Society case i.e. Sessions Case No.152 of 2002 are very much necessary in the present trial to prove the case against accused persons more particularly A23 and A58 and therefore, the Special Designated Judge ought to have allowed the applications Exhs.929 and 930.
[7.2] It is submitted that as such by not allowing applications Exh.929 and 930, the learned Special Designated Judge has virtually nullified the orders passed by this Court in Special Criminal Application Nos.1433 of 2010 and 760 of 2011 and the purpose for which the applications Exh.337 and 793 were allowed by this Court by passing the orders in Special Criminal Application Nos.1433 of 2010 and 760 of 2011.
[7.3] It is further submitted by Shri Panchal, learned Special Designated Judge that as such this is the third time that the investigating agency has to approach this Court virtually for the very purpose and at every stage the learned Special Designated Judge has dismissed the applications and the applicant was required to come before this Court. It is submitted that as such while passing the impugned order, the learned Special Designated Judge has not appreciated the fact that by rejecting such applications, the earlier orders passed by this Court in Special Criminal Application Nos.1433 of 2010 and 760 of 2011 are virtually nullified.
[7.4] It is further submitted by Shri Panchal, learned Special PP that as such another learned Designated Sessions Court conducting trial of similar postGodhra incident riot cases being Sessions Case No.235 of 2009 and 7 other cognate cases has allowed the similar application and called for the same muddamal article for production from the custody of Nazir of the Designated Judge, Special Riot Trial Cases Court, Ahmedabad in whose custody such muddamal was produced during the proceedings of the Gulbarg Society Case trial. It is submitted that similar application Exh.2250 was allowed by the learned Special Designated Sessions Court vide order dated 09.12.2011 in another case.
[7.5] It is further submitted by Shri Panchal, learned Special PP that to given prosecution a fair and legal opportunity to lead and adduce legally admissible evidence to prove the case against the accused and to find out the truth and to reach the guilt or otherwise of the accused, the muddamal articles in question are absolutely essential to be produced. Therefore, it is requested to allow the present Revision Applications and allow application Exhs.929 and 930.
[8.0] Both these Criminal Revision Applications are opposed by Ms. Vrunda C. Shah, learned advocate appearing on behalf of the respondents herein – original accused persons. It is submitted by Ms. Shah, learned advocate appearing on behalf of the respondents that as rightly held by the learned Special Designated Judge, 'Court' cannot be said to be a 'person' as defined under Section 11 of the IPC and therefore, no summons can be issued to the 'Court' to produce the muddamal articles which is lying in the custody of the concerned Court and therefore, learned Special Designated Judge has not committed any error and/or illegality in dismissing the application Exhs.929 and 930. No other submissions have been made.
Making above submissions, it is requested to dismiss the present Criminal Revision Applications.
[9.0] Heard learned advocates appearing on behalf of respective parties at length and considered the impugned common order passed by the learned Special Designated Judge trying Sessions Case No.203 of 2009 i.e. Naroda Gam case. At the outset it is required to be noted that earlier the investigating agency / prosecution submitted applications Exh.337 as well as Exh.793 in the present trial. By submitting the application Exh.337, the applicant – SIT – IO prayed to permit the concerned IO to record the voice sample of A23 and A58. The said application came to be rejected by the learned Special Designated Judge by order dated 04.03.2010 and this Court vide judgment and order dated 06.12.2010 allowed the said Special Criminal Application quashing and setting aside the order passed by the learned Special Designated Judge below Exh.337 and allowed the said application Exh.337 permitting the IO/SIT to record voice sample of accused A 23 and A58. That thereafter pursuant to the order passed by this Court the voice sample of A23 and A58 were recorded by the SIT/concerned IO. It appears that thereafter after the voice sample of A23 and A58 were recorded, the same were to be compared with the voice contained in the CD/DVD produced at Exh.1488 in the case arising out of FIR being IC.R. No.67/2002 registered with Meghaninagar Police Station, which has been numbered as Sessions Case No.152 of 2002 and other cognate matters and therefore, the SIT/investigating agency submitted application Exh.793 for an appropriate order directing the concerned Court to hand over the muddamal parcel containing DVDs/CDs produced at Exh.1488 in Sessions Case No.152 of 2002 for comparison of the voice contained in DVD/CD with the voice sample of A23 and A58 so as to enable them to send it to FSL, Jaipur. The said application Exh.793 again came to be dismissed by the learned Special Designated Judge by order dated 08.03.2011 and again the applicant herein – SIT/investigating agency approached this Court by way of Special Criminal Application No.760 of 2011 and by judgment and order dated 04.07.2011 this Court allowed the said Special Criminal Application quashing and setting aside the order passed by the learned Special Designated Judge below Exh.793 and consequently allowed application Exh.793 and directed the concerned Court to hand over the muddamal parcel containing DVDs/CDs produced at Exh.1488 in the case arising out of FIR being IC.R. No.67/2002 registered with Meghaninagar Police Station, which is numbered as Sessions Case No.152 of 2002 and other cognate matters, for comparison of voice contained in the said CD/DVD with the voice sample of aforesaid two persons A23 and A58. It is required to be noted that while allowing the aforesaid Special Criminal Application No.760 of 2011 and allowing the application Exh.793, this Court specifically observed that, by rejecting the application Exh.793, the learned trial Court has virtually nullified the order passed by this Court in Special Criminal Application No.1433 of 2010 and/or has not appreciated the purpose and object of allowing application Exh.337 permitting the investigating agency to have the voice sample of A23 and A58. This Court also observed that to achieve the ultimate goal to book and/or prosecute the real culprit, application Exh.793 is required to be allowed.
[9.1] That thereafter pursuant to the order passed by this Court allowing application Exh.793, the concerned Court handed over the muddamal parcel containing DVD/CD produced at Exh.1488 in Sessions Case No.152 of 2002 to the investigating agency to send it to the FSL, Jaipur for comparison of voice contained in the said CD/DVD with that of the voice sample of A23 and A58. That thereafter the FSL, Jaipur has submitted its report. That thereafter when Shri Ashish Khaitan was to be examined as witness, production of muddamal articles DVD/CD, hardware which were produced by the said witness during the course of evidence recorded in Sessions Case No.152 of 2002 (Gulbarg Society Case) were required and therefore, the prosecution submitted application Exhs.929 and 930 under Section 91 of CrPC by submitting that production of said muddamal articles are very much necessary to prove the case against the accused persons. However, unfortunately the said applications have been rejected by the learned Special Designated Judge by observing that no summons can be issued under Section 91 of the CrPC to the 'Court' and the 'Court' cannot be said to be a 'person' as defined under Section 11 of the IPC. However, the learned Special Designated Judge has not properly appreciated the fact that the summons was not to be issued to the concerned 'Court' but was to be issued to the officer/Nazir of the Court to produce the muddamal articles which is lying in the custody of Court in Sessions Case No.152 of 2002. Under the circumstances, the learned Special Designated Judge has materially erred in not appreciating and considering Section 91 of the CrPC and purpose and object of issuing summons. The learned Special Designated Judge has not exercised the jurisdiction vested in it under Section 91 of the CrPC while by rejecting the application Exhs.929 and 930.
[9.2] Shri Panchal, learned Special PP appearing on behalf of the State is right in making grievance and submitting that by rejecting application Exhs.929 and 930, the learned Special Designated Judge has virtually nullified the earlier orders passed by this Court in Special Criminal Application Nos.1433 of 2010 and 760 of 2011 and allowing the application Exhs.337 and 793 and the purpose for which the said applications were allowed. The learned Special Designated Judge ought to have appreciated that when while allowing application Exh.337, this Court permitted the investigating agency to record voice of A23 and A58 and thereafter allowed the application Exh.793 directing the concerned Court to give the muddamal articles – DVD/CD to the IO to send it to the FSL, Jaipur for comparing the voice of A23 and A58 with the voice recorded in CD/DVD. Thereafter, the production of muddamal articles in question i.e. CD/DVD produced at Exh.1488 in Sessions Case No.152 of 2002 and production of hardware CD/DVD produced by Shri Ashish Khaitan during the course of his evidence recorded in Sessions Case No.152 of 2002 (Gulbarg Society Case) in the present trial were very much necessary and essential. Under the circumstances also, the learned Special Designated Judge has materially erred in dismissing the application Exhs.929 and 930.
[9.3] It is also required to be noted at this stage that a similar application was given by the applicant before another Designated Court conducting trial of similar postGodhra incident riot case being Sessions Case No.235 of 2009 and other 7 cognate matters and a similar prayer was made and the learned Special Designated Judge directed to issue witness summonses to the Nazir, Designated Judge conducting Sessions Case No.152 of 2002 to produce CD/DVD at Exh.1488 in Sessions Case No.152 of 2002.
[10.0] In view of the above and for the reasons stated above, both the Criminal Revision Applications succeed. Impugned common order dated 18.06.2012 passed by the learned Special Designated Judge – learned Principal City Civil and Sessions Judge, Ahmedabad below Exhs.929 and 930 in Sessions Case No.203 of 2009 is hereby quashed and set aside and consequently the said application Exhs.929 and 930 in Sessions Case No.203 of 2009 are hereby allowed and the learned Special Designated Judge is hereby directed to issue summons to the concerned person/Nazir of the concerned Court trying Sessions Case No.152 of 2002 (Gulbarg Society Case) to produce the CD/DVD produced by the concerned IO as muddamal articles in the aforesaid Sessions Case No.152 of 2002 as well as to produce certain hardware produced by the witness Shri Ashish Khaitan as enlisted in para 2 of the said application, produced by him during the course of evidence recorded before the Court trying the aforesaid Sessions Case No.152 of 2002 (Gulbarg Society case) at the earliest. Rule is made absolute to the aforesaid extent in each of the Criminal Revision Applications. Direct service is permitted.
Sd/ (M.R. Shah, J.) menon