Court No. - 66
Case :- APPLICATION U/S 482 No. - 27214 of 2019
Applicant :- Shashendra Kumar
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vimlendu Tripathi Counsel for Opposite Party :- G.A.,Ajay Sengar
Hon'ble Rajul Bhargava,J.
Heard Sri Vimlendu Tripathi, learned counsel for the applicant, Sri Samit Gopal, learned senior counsel assisted by Sri Ajay Sengar, counsel for the opposite party no. 2 and learned A.G.A. for the State.
The present application has been filed for quashing the order dated 21.1.2019 passed by Sessions Judge, Auraiya in Session Trial No. 111 of 2016 arising out of Case Crime no. 76 of 2016, u/s 147, 148, 302/149 IPC, P.S. Kotwali Auraiya, District Auraiya to the extent of rejection of application no. 196-kha and 197-kha for summoning police officers namely Akhilesh Kumar Mishra and Vipul Srivastava as defence witnesses and further to quash the impugned order dated 8.7.2019 passed by Additional Sessions Judge, court no. 1, Auraiya in the aforesaid session trial whereby he rejected the defence application for summoning the aforesaid police officers as defence witnesses.
The brief facts of the case are that the opposite party no. 2 lodged first information report against the applicant and two other named and three unknown accused regarding an incident which took place on 15.2.2016 at 8.30 pm and its F.I.R. was lodged on the same day at 10.30 pm. The investigation was carried out by I.O. Devendra Pratap Singh, he submitted charge-sheet in respect of named accused Raj Kumar Dwivedi and unknown accused Devki Nandan on 22.4.2016 and it was recorded in the case diary that the investigation in respect of the applicant and co-accused Shiv Kumar is continuing, copy of the charge-sheet has been annexed as annexure-6 to the affidavit. Thereafter, erstwhile I.O., S.I. Devendra Kumar Singh was transferred and investigation was taken over by subsequent I.O. namely Akhilesh Kumar Mishra, who proceeded with the investigation and prepared SCD-4 and SCD-5 and he concluded the investigation by SCD-5 dated 25.8.2016 detailing therein that after examining the statement of the witnesses, CCTV footage and call detail reports location of the mobiles of the applicant and co-accused Shiv Kumar, it is found that that co- accused Shiv Kumar was far away from the place of the incident and was actually in Bhind. On the basis of other evidence he arrived at a conclusion that the applicant was present in Kanpur at the alleged date and time of the incident. The I.O. Akhilesh Kumar Mishra then submitted report on 25.8.2016 stating therein that the participation of the applicant and co-accused Shiv Kumar is doubtful. It appears that no application was moved by the prosecution to reject supplementary report submitted by S.I. Akhilesh Kumar Mishra in respect of the applicant and co-accused and they may be summoned to face trail. The matter in respect of chargesheeted accused was committed to the court of Session and after framing of charges, statement of first informant Hameer Singh was recorded and he was cross examined by counsel for chargesheeted accused. The applicant and co-accused Shiv Kumar were then summoned u/s 319 Cr.P.C. The summoning order dated 14.2.2019 was challenged before this Court and Hon'ble The Apex Court but could not be succeeded. It transpires from the affidavit filed in support of the application and counter affidavit that an application was moved by first informant opposite party no. 2 that local police has colluded with the accused and are not conducting the investigation in free and impartial manner. Being aggrieved by the investigation the opposite party no. 2 also moved an application before D.G.P., U.P. for conducting proper investigation and on his application S.P. Auraiya was directed to get an inquiry conducted through an officer of the rank of Additional S.P. It may be made clear that the said application was filed by the opposite party no. 2 and an application of similar nature was filed on behalf of the applicant also for conducting free and impartial investigation and on the aforesaid applications moved by the opposite party no. 2 and by the applicant and co-accused, the Additional S.P. Vipul Kumar Srivastava conducted a thorough enquiry and submitted detail inquiry report and on the basis of said inquiry report submitted by A.S.P. Vipul Srivastava, then S.P. Auraiya passed an order dated 22.2.2017 directing S.H.O. Phaphund to conduct further investigation. The factum of holding an inquiry by A.S.P. Vipul Srivastava there is no specific denial of the averments made in para 27-28 of the affidavit and reply to the same is evasive in para-16 of the counter affidavit. The inquiry report dated 23.5.2016 filed as annexure-SA-1 has been brought on record in order to make facts clear. During trial of accused Raj Kumar Dwivedi, an application was made on his behalf for summoning report of further investigation and inquiry report u/s 91 Cr.P.C. in respect of which he lost the legal battle up to Hon'ble the Apex court in Special leave to Appeal (Crl.) No. 8891-8892 of 2017 vide order dated 3.4.2018. Copy of the order of Hon'ble the Apex Court has been annexed as annexure-8 to the affidavit. The statements of the accused were recorded on 21.1.2019 u/s 313 Cr.P.C. and on that date itself the applicant and co-accused moved an application for summoning last I.O. Akhilesh Kumar Mishra and A.S.P. Vipul Kumar Srivastava, however, the same was rejected on 21.1.2019 itself. It appears that thereafter an application was filed by the accused to recall PW-10, Inspector Devendra Pratap Singh, who had partly submitted charge-sheet against three accused and investigation in respect of the applicant and co-accused was kept pending by him. The application was moved by the defence u/s 233 Cr.P.C. for recalling PW-10 to bring SCD-1, 2 and 3, which were prepared by PW-10, the said application was however rejected on 1.2.2019 and same was challenged by the applicant in Crl. Misc. Application u/s 482 No. 7795 of 2019. This Court, however, rejected the aforesaid application with the following observations:- "However, it is provided that the applicant is free to prove his case at his convenience by ensuring the presence of defence witnesses as and when he so desires but according to the procedure established by law." by order dated 11.4.2019. Though the order dated 21.1.2019 was not challenged by the applicant in any higher forum, however, after the order dated 11.4.2019 the applicant submitted an application on 14.5.2019 and 16.5.2019 for summoning aforesaid two police officers namely Akhilesh Kumar Mishra and Vipul Srivastava as defence witnesses. The Trial Judge however rejected the application by impugned order dated 8.7.2019.
Learned counsel for the applicant submitted that the impugned order dated 21.1.2019 and 8.7.2019 rejecting the application for issuance of notice to aforesaid police officers in their defence u/s 233 Cr.P.C. is patently illegal and dehors of any valid reasoning. It is submitted that such application should be refused only on the ground of three eventuality i.e. vexation or delay or for defeating the ends of justice, defence application for leading defence evidence especially aforesaid two officers whose examination was absolutely necessary as defence witnesses to prove their innocence on the basis of material, evidence collected by them through investigation. Learned counsel for the applicant has argued that prosecution was duty bound to place true picture of evidence collected during investigation on record irrespective of fact as to whether it would be in favour or against the accused but in the present case, prosecution especially I.O. PW-10 Devendra Kumar, who had submitted charge-sheet in part, deliberately did not produce the statements and documents collected by Additional S.P. in internal inquiry report dated 23.5.2016 and also evidence collected by the last I.O. namely Akhilesh Kumar Mishra regarding outcome of the investigation of the crime in question especially relating to the applicant and co-accused Shiv Kumar, on the basis of which their names were expunged from the crime in question.
Learned counsel has strenuously argued that aforesaid police personnel sought to be produced as defence witnesses are essentially connected with the fact in issue involved in the trial and are having direct connection with the trial in order to prove evidence collected by them in respect of plea of alibi of the applicant and co-accused. The examination of the said witness is absolutely necessary as they would have thrown substantial light on the guilt or innocence of the accused persons and thus, their examination before the trial court as defence witnesses was essential for just decision of the case. Learned counsel further argued that principle of opportunity to lead defence evidence in order to accord fair and impartial trial to the accused facing serious charges of murder is paramount in the criminal justice system and has been recognized as constitutional right of the accused and any sort of technical objection and apprehended delay in conclusion of trial cannot hamper such pivotal right of the accused.
He has further argued that if the reasons best known to the counsel for the applicant order dated 21.1.2019 was not challenged in higher forum but in view of the observation made by the court in order dated 11.4.2019 the application for summoning aforesaid witnesses was moved on behalf of the applicant and co-accused. Learned counsel has assailed the impugned order dated 8.7.2019 mainly on the ground that the earlier application moved on behalf of the applicant has already been rejected by order dated 21.1.2019 and same has not been challenged in any forum, therefore, subsequent application dated 24.5.2019 for summoning aforesaid defence witnesses cannot be allowed, is wholly unjustified. Apart from it, the trial Judge was of the opinion as the matter is fixed for final argument and thus the application for examining aforesaid witnesses as defence witnesses cannot be allowed. It is argued that in view of the settled law of land, procedure is only handmaid of justice and substantive justice was always prevail over procedural and technical justice and hence any objection regarding delay in challenging earlier impugned order dated 21.1.2019, delay in conclusion of trial etc., cannot restrict substantive right of the accused to lead defence evidence. Apart from it, internal inquiry report dated 23.5.2016 is not only relevant but is also admissible as evidence as the same was conducted on an application moved by the opposite party no. 2 and the applicant, however, even if the admissibility is objected by the prosecution, the trial court is obliged to make a note thereof on record and may keep the issue for admissibility while deciding the case.
Per contra learned counsel for opposite party no. 2 could not dispute the aforesaid submission made by counsel for the applicant that the PW-10 Devendra Pratap Singh had submitted charge-sheet against one named and two unknown accused and investigation kept pending so far as the applicant and co- accused Shiv Kumar is concerned, and after drawing three Parchas of supplementary case diary, the matter was investigated by I.O. Akhilesh Kumar Mishra, who had expunged the names of the applicant and co-accused on the basis of evidence collected in respect of their alibi. Learned counsel though has not disputed the internal inquiry report submitted by Vipul Srivastava, however, he has drawn attention of the Court to the order of the Hon'ble the Apex court dated 3.4.2018 wherein while rejecting S.L.P. filed by accused Raj Kumar Dwivedi it was observed that "However learned senior counsel appearing for the petitioner brought to the notice of this Court, several documents including report dated 23.9.2016 submitted by Additional Superintendent of Police. Placing reliance on the aforesaid report, he contends that the report was prepared on an application made on behalf of the complainant himself. On perusing the material available on record, it can be observed that no prior permission was sought or taken from the Court to conduct such further investigation. Therefore, we cannot direct prosecution to place same before the Court."
At this stage, counsel for the applicant submitted that in respect of aforesaid inquiry report an application was made by the chargesheeted accused Raj Kumar Dwivedi during pendency of the trial and he has further submitted that it appears that an impression was given to Hon'ble the Apex Court that said inquiry report dated 23.9.2016 was pursuant to any further investigation, though infact it was an internal inquiry held on an application moved by the opposite party no. 2 and the accused for holding an impartial investigation. He submitted that the observation of Hon'ble the Apex court will not bar the right of the accused to examine Additional S.P. Vipul Srivastava, who had conducted the inquiry on the joint application of both sides as defence witnesses whereby the documents sought to be produced u/s 91 Cr.P.C. by the prosecution, was during the course of witnesses being examined by the prosecution and the same cannot preclude accused to examine such witnesses/ responsible police officers, who had conducted internal inquiry in order to prove his innocence.
Learned counsel for opposite party o. 2 has further argued that inquiry report has no sanctity in the eyes of law as it was not a part of investigation and also does not part of the case diary as per scheme of Code of Criminal Procedure and in no eventuality could have culminated in submission of report either u/s 161 or 173 Cr.P.C.
I may record that the opposite party no. 2 could not seriously challenge the summoning of last investigating officer Akhilesh Kumar Mishra, who had expunged the names of the applicant and co-accused on the basis of evidence collected by him that they were present at far from the place of incident.
Learned AGA has borrowed the submission made by learned counsel appearing on behalf of opposite party no. 2.
Learned counsel for the applicant has placed reliance on the judgment of Hon'ble The Apex Court in Shiv Kumar vs. Hakum Chand, 1999(7) SCC 467 and has placed reliance in para-14 of the said judgment, which is quoted as under:-
"A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge."
After giving my anxious consideration to the submissions made by counsel for the parties and in the present factual scenario of the case in hand, the Additional S.P. Sri Vipul Srivastava and Inspector of police Akhilesh Kumar Mishra (last I.O.), who can throw substantial light on the guilt or innocence of the applicant and thus the applicant and co-accused cannot be denied of their valuable right to examine them as defence witnesses causing irreparable loss to them as they would never be able to prove their plea of alibi by evidence collected by the aforesaid police officers.
I am of the considered opinion that the impugned orders dated 21.1.2019 and 8.7.2019 are liable to be set aside. Thus, the orders dated 21.1.2019 and 8.7.2019 are set aside.
However, in view of the fact that other two co-accused are languishing in jail for the past several years and there are directions of this Court in bail application of co-accused Shiv Kumar for expediting trial and deciding the same within specified period, I hereby direct that if an application u/s 233 Cr.P.C. is moved by the applicant and co-accused for issue of process for compelling attendance of aforesaid two police officers namely Akhilesh Kumar Mishra and Vipul Srivastava along with production of documents within ten days from today, the learned trial Judge shall issue process for examination the said witnesses as defence witnesses, he shall ensure that summons are served on the aforesaid officers within two weeks thereafter, with further direction to them to appear before the court along with requisite documents/ evidence collected during inquiry/ investigation and shall make its full endeavour to complete defence evidence within one and half months from the date of issuance of process for compelling their attendance.
It is further directed that except the aforesaid witnesses, defence will not be allowed to examine any other witness as defence witness and the court shall not adjourn the trial at the behest of prosecution or the defence and shall decide the trial within three months.
It is made clear that the learned Judge shall be at its liberty to draw its own inference in respect of the deposition of aforesaid defence witnesses and including the admissibility of evidence proved by them and shall not be influenced by any observations made by the Court hereinabove.
With the aforesaid observations/ directions, the present application is allowed.
Order Date :- 22.8.2019 Dhirendra/