Madhya Pradesh High Court
Ramkishor Singh Sikarwar vs The State Of Madhya Pradesh on 16 December, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:22763
1 MCRC-53852-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 16th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 53852 of 2024
RAMKISHOR SINGH SIKARWAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Rajmani Bansal- Advocate for the petitioner [P-1].
Shri Summerr Ghuraiya - Dy. A.G. for the respondent/State.
ORDER
This petition under Section 482 of Cr.P.C. has been filed by the
petitioner against the order dated 29.11.2024 passed in case No.202/2019 by
learned Special Judge,SC/ST (Prevention of Atrocities) Act, Morena
whereby the application preferred by the petitioner under Section 233(2), 233
(3) and 91 of Cr.P.C. to produce complaint register, complaint application,
pen drive alongwith the concerned witnesses was rejected.
2. In brief facts of the case are that, it is alleged by the prosecution that
on 07.08.2019, a dehatinalisi was lodged at the instance of complainant
Subhash Singh @ Pappu Singh that about 06:40 PM, when he was going in
his vehicle no. MPO6-CA-3736 from Joura to Morena, in a car along with
him, one Jagannath Singh Sikarwar, who happened to be the panchayat
coordinator in Janpad Panchayat, Joura was also traveling. The vehicle was
being driven by Sourabh Singh and one Satendra Singh Sikarwar was also
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present in the vehicle. It is further alleged that near Village Bigaon, one
Scorpio of white colour and one Bolero Car dashed their car and forcefully
stopped the car by blocking the way. Thereafter, suddenly discrete firing
started and one Ramraj Singh armed with gun, one Ramkishor @ Kallu
carrying mouser gun, Pradeep Sikarwar carrying gun and Shivraj carrying
country made pistol, came outside the vehicle and started firing on the car of
victim. It is further alleged that Ramkishor fired the bullet which hit
Shivcharan on his left hand thereafter, Neeru Singh Sikarwar, Surendra
Singh Sikarwar also started firing on the vehicle. Mukesh Sikarwar, Rajesh
Sikarwar, Ravi Sikarwar started firing due to which Shivcharan, Jagannath
Singh got injured. However, the driver immediately took the vehicle out
from the spot and reached Morena Hospital. In the aforesaid incident,
Shivcharan Shakya died and thereafter, the FIR was lodged. The
investigating agency thereafter filed the charge sheet and during trial, most
of the witnesses had been examined. On 08.10.2024, present petitioner had
filed an application under sections 233(2). 233(3) and 91 of Cr.P.C. stating
therein that applicants have falsely been implicated and dehatinalsi has been
registered on false grounds and the same has been stated by witness S.D.
Batham and in pursuance of the same, wife of the petitioner had given a
complaint on 11.08.2019 and along with complaint section 65-B certificate
and pen drive had also been given to Police and an application had been filed
for providing copy of the abovementioned documents along with concerned
witnesses but the said information was not provided to the wife of the
petitioner and thereafter, an application under section 233(2), 233(3) and 91
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of CRPC was filed before Trial Court. On 15.10.2024, reply of the same was
filed by respondent/State stating therein that in respect of the aforementioned
application, P.S. Joura has informed that complaint is not available on record
and therefore, copy of the same cannot be provided and it was further stated
in reply that abovementioned documents have been sought to cause delay in
trial. Vide impugned order dated 29.11.2024 learned trial court had
dismissed the application of present petitioner holding that P.S.Joura had
informed that relevant information sought is not available on record, thus
when an information is not in existence then no purpose would be served to
call such record and it was further stated that as far as question for calling the
copy of dairy and inward-outward register is concerned, witness S.D.Batham
has already been examined by defense in that regard and thereafter required
documents are not helpful for defense. Being aggrieved by the order dated
29.11.2014, the present petition has been preferred.
3. Learned counsel for the petitioner submits that the application filed
by the petitioner was rejected mainly on two grounds; firstly that when the
documents itself are not available, then there is no reason to call the record
whereas the respondent themselves had admitted that there is entry in
rojnamcha, therefore, it was prayed to call the rojnamcha, and secondly that
the petitioner has already cross-examined S.D. Batham one the prosecution
witnesses therefore, there is no requirement of calling the rojnamcha whereas
in the cross examination only question was asked with regard to rojnamcha,
until and unless the rojnamcha is not produced, the same cannot be exhibited
and no evidence in its regard could be led. Hence, it is prayed that the present
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petition be allowed and the order dated 29.11.2024 be set-aside. To bolster
his submissions, learned counsel for the petitioner has relied upon decision
rendered by the coordinate Bench at Jabalpur in M.Cr.C. No.41175/2018
(Anchal Tiwari Vs. State of M.P. & ors.) on 25.11.2019.
4. Per contra, learned counsel for the respondent/State submits that in
the present case, the petitioner has already cross-examined concerned
witness S.D. Batham and in the judgment cited by the petitioner, it has not
been mentioned as to whether the concerned person from whom the
documents were sought, was earlier cross-examined. Once the opportunity
was afforded to the petitioner, then he should have asked questions from the
concerned person. From perusal of the findings rendered by the learned trial
Court while rejecting the application, no case for interference is made out.
Hence, the present petition be dismissed.
5. Heard learned counsel for the parties and perused the record.
6. The aspect of validity of impugned order is required to be adjudged
in terms of provisions of Section 233 Cr.P.C. which are as follows:
“.233. Entering upon defence-(1) Where the accused is not
acquitted under section 232, he shall be called upon to enter on his
defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file
it with the record.
(3) If the accused applies for the issue of any process for
compelling the attendance of any witness or the production of any
document or thing, the Judge shall issue such process unless he
considers, for reasons to be recorded, 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.”
7. The wordings of Section 233(3) Cr.P.C. clearly indicates a positive
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obligation upon the Court for compelling attendance of any witness or
production of any document or thing in case the accused, applies for issue of
process for compelling such attendance or production. However such a
positive direction is circumscribed by two grounds viz vexation or delay or
defeating the ends of justice on which the trial court would be entitled to
reject such a plea, for reasons to be recorded.
8. It is evident from the wordings of Section 233(3) Cr.P.C. that the
provision is clearly meant for beneficial purpose for the attendance of any
witnesses or production of any document sought by the accused-applicant.
Such a positive enactment is made keeping in view the purpose of a fair trial
as required under Article 21 of the Constitution of India.
9. The concept of fair trial has already been explained and enunciated
upon by Supreme Court in the case of J.Jayalalithaa and Ors. Vs. State of
Karnataka and Ors. reported in 2014 (2) SCC 401 in the following manner:
“28. Fair trial is the main object of criminal procedure and such
fairness should not be hampered or threatened in any manner. Fair
trial entails the interests of the accused, the victim and of the
society. Thus, fair trial must be accorded to every accused in the
spirit of the right to life and personal liberty and the accused must
get a free and fair, just and reasonable trial on the charge imputed
in a criminal case. Any breach or violation of public rights and
duties adversely affects the community as a whole and it becomes
harmful to the society in general. In all circumstances, the courts
have a duty to maintain public confidence in the administration of
justice and such duty is to vindicate and uphold the “majesty of
the law” and the courts cannot turn a blind eye to vexatious or
oppressive conduct that occurs in relation to criminal proceedings.
29. Denial of a fair trial is as much injustice to the accused as is to
the victim and the society. It necessarily requires a trial before an
impartial Judge, a fair prosecutor and an atmosphere of judicial
calm. Since the object of the trial is to mete out justice and to
convict the guilty and protect the innocent, the trial should be a
search for the truth and not a bout over technicalities and must be
conducted under such rules as will protect the innocent and punishSignature Not Verified
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the guilty. Justice should not only be done but should be seem to
have been done. Therefore, free and fair trial is a sine qua non of
Article 21 of the Constitution. Right to get a fair trial is not only a
basic fundamental right but a human right also. Therefore, any
hindrance in a fair trial could be violative of Article 14 of the
Constitution. “No trial can be allowed to prolong indefinitely due
to the lethargy of the prosecuting agency or the State machinery
and that is the raison d’tre in prescribing the time frame” for
conclusion of the trial.
30. Article 12 of the Universal Declaration of Human Rights
provides for the right to a fair trial what is enshrined in Article
21 of our Constitution. Therefore, fair trial is the heart of criminal
jurisprudence and, in a way, an important facet of a democratic
polity and is governed by the rule of law. Denial of fair trial is
crucifixion of human rights.”
10. The concept of provisions of Section 233 Cr.P.C. therefore
assumes significance, as per which an application thereunder can be rejected
only in case the Court concerned, for reasons to be recorded, indicates that it
has been made for the purpose of vexation or delay or for defeating the ends
of justice. The specific wordings of Section 233 Cr.P.C. therefore do not
envisage rejection of such an application on any other ground. The gist of the
said provision particularly sub-section (3) thereof clearly imposes an
obligation upon the Court to allow such an application positively except only
on the grounds indicated hereinabove. It therefore appears that provision of
Section 233 Cr.P.C. are clearly in favour of allowing such an application
being preferred by the accused. The concept of fair trial encompasses itself
that a fair opportunity must be granted to the accused in participating the trial
and trial should not be an empty trial.
11. So also Section 91 of Cr.P.C. plays a vital role in unearthing the
truth. It has got vital role to play in any given trial in not only facilitating the
parties to place evidence on record, but also empowers the Court at any stage
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to summon the document, which the parties want to rely upon.
12 Section 91 of Cr.P.C. reads as under:
“91. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of a police station
considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation,
inquiry, trial or other proceeding under this Code by or before
such Court or officer, such Court may issue a summons, or such
officer a written order, 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.
(2) Any person required under this section merely to produce a
document or other thing shall be deemed to have complied with
the requisition if he causes such document or thing to be produced
instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(1) to affect, sections 123 and 124 of the Indian Evidence Act,
1872(1 of 1872), or the Bankers, Books Evidence Act, 1891 (13 of
1891), or
(3) to apply to a letter, postcard, telegram or other document or
any parcel or thing in the custody of the postal or telegraph
authority.
13. Bare perusal of provisions contained under Section 91 Cr.PC,
reveals that application under this provision of law can be made at any stage
of trial and scope of Section 91 is very wide and it can neither be restricted
only to the documents on which the prosecution relies nor to the stage
contemplated by Section 233 or 243 of the Code. Section 91 empowers a
Court to ensure production of any document or other thing, “necessary or
desirable”, for the purpose of any investigation, inquiry, trial or other
proceedings under the Code, by issuing a summons or a written order to
those in possession of such materials. If, Section 91 Cr.PC is read in its
entirety, it clearly reveals that sine qua non for an order under this Section is
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consideration of the Court that the production of the document/material
concerned is desirable and necessary for the purposes of trial. 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.
14. Learned counsel for the petitioners has argued that the said
dcouments especially rojnamcha sanha have got a great bearing on the merits
of the matter. The said documents are necessary or desirable for
the defence of the accused, in not only establishing that the accused is
innocent of the offences alleged against him, but also would place on record
the truth about the alleged incident.
15. From perusal of cross-examination of S.D. Batham, Assistant Sub-
Inspector, who was posted on the date of incident at Police Station Joura, it
is reflected that in his deposition, in Para 5, he clearly admitted rojnamcha
has not been attached with the case.
16. Hence, considering the aforesaid provisions of law, learned court
below has committed an error in dismissing the application filed by
petitioner for calling such documentary evidence i.e. rojnamcha sanha in
respect of aforesaid criminal case, rather it was the duty of the Investigating
Officer to file that Rojnamcha Sanha alongwith the charge-sheet.
17. Accordingly, this petition is allowed. The impugned order dated
29.11.2024 so far as it rejects the application filed by the petitioner under
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Section 233(2), 233(3) and 91 of Cr.P.C. stands quashed. The application
filed by the petitioner under Section 233(2), 233(3) and 91 of Cr.P.C. before
the trial Court is allowed and the documents that the petitioner seeks shall be
brought on record.
(MILIND RAMESH PHADKE)
JUDGE
ojha
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