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2011 Supreme(All) 302
[2011(2) ADJ 240 (LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : SHRI NARAYAN SHUKLA, J.
SHEKHAR TEWARI …Petitioner
Versus
STATE OF U.P. AND ANOTHER …Respondents
(Criminal Misc.Application No. 381 of 2011, decided on 2nd February, 2011)
Counsel:
Dilip Kumar and Parmanand Sharma for the Petitioner; G.A., Abhishekh Ranjan and I.B. Singh for the Respondents.
Headnote:(A) Information Technology Act, 2000—Section 2(1)(t)—Evidence Act, 1872—Sections 65-A, 65-B(1), 3 and 165—Criminal Procedure Code, 1973—Section 311—Summon—Witness—Application for—To take sample of her voice and photographs of her face and body—For seeking expert opinion of any CFL—Rejection of—On ground neither defence witness nor accused provided DVD to I.O.—Which is recording of interview of PW 10 for investigation—Nor did they raise objection during course of investigation—Further, during course of examination of PW 10 no such application was moved on behalf of accused—Past efforts made by accused to delay proceedings also taken into consideration—In present case PW 10 interviewed voluntarily—Being so it is always admissible in evidence—Fair trial is a paramount consideration—Case must be tried fairly after collecting all relevant evidence for a just decision—Although, there is a direction of Supreme Court to expedite trial—But, it does not mean to ignore material evidence—Which is necessary for just decision—After enactment of Act, 2000 all documents including electronic records are included under definition of Evidence Act—Thus, after testing her voice as well as her photographs by CFL—Which is permissible under Evidence Act—There would be more relevant evidence for a decision of trial Court—Relevant evidence not be ignored on ground of delay—In term of Section 165 of Act Court have ample powers to order production of documents—Impugned order set aside. [Paras 3, 12, 14, 15 and 16]
(B) Criminal Procedure Code, 1973—Section 311—Object—Just decision—There may not be failure of justice on account of mistake of either party—In bringing valuable evidence on record or leaving ambiguity in statements of witnesses examined from either side—Determinative fact is whether it is essential to just decision of case. [Para 12]
(C) Evidence Act, 1872—Section 165—Documents—Production of—Proof of relevant facts—Powers of Court—In term of Section 165, Courts have ample powers to order production of documents or things—In order to discover or to obtain proper proof of relevant facts. [Para 16]
Hon’ble Shri Narayan Shukla, J.—Heard Mr. Dilip Kumar, learned counsel for the petitioner and Mr. I.B.Singh, learned Senior Advocate Special Public Prosecutor as well as Mr. Salil Srivastava, learned counsel for opposite party No. 2.
2. The petitioner has challenged the order dated 21.1.2011 passed by the Special Judge, Ayodhya Prakaran/Additional Sessions Judge, Lucknow in Session Trial No. 446 of 2009 and 447 of 2009.
3. By means of order impugned the petitioner’s application being Application No. 192-B to summon P.W.10 and to take the sample of her voice and photographs of her face and body for seeking expert opinion of any of the Central Forensic Laboratory has been rejected. The learned Sessions Judge has rejected the application on the ground that neither the witness D.W.11 nor accused provided D.V.D. to the Investigating Officer which is recording of interview of P.W.10 Smt. Shashi Gupta for investigation nor did they raise such objection during the course of the investigation. Further during the course of examination of P.W.10 no such application was moved on behalf of the accused and the statements of witnesses have to be evaluated in the light of the transcript of interview of P.W.10 demonstrated on Screen as well as on the basis of D.V.D. provided by the D.W.11. The learned sessions Court has also considered the factum of delay in the matter and keeping in view the past efforts made by the accused to delay the proceedings, the application in question has also been treated in the same series.
4. The learned counsel for the petitioner submitted that since P.W.10 who is sole eye-witness of the incident, has disowned the contents of the First Information Report dated 24.12.2008 and now the number of persons who were about 11, have been made the accused where as they were not named in the First Information Report in order to test the veracity of their statements, therefore, it has become necessary to test her voice. It is stated that though through her statement recorded under section 161 Cr.P.C. during the course of the investigation she reiterated the version of the First Information Report but in her examination-in-chief she has given absolutely contrary statement before the trial Court. It is the duty of the Investigating Officer to collect all the materials, which are relevant in the matter but they failed to do so. It is further stated that P.W.10 has already consented during the course of examination to give the sample of her voice and photographs. Earlier the petitioner’s application for such request was rejected on the ground that unless it is verified that person shown by T.V. Channel is the same, she cannot be directed to be produced for the expert opinion. Now after examination of D.W.11 who interviewed her and has verified her that she (P.W.10) is the lady who was interviewed by him and it is the lady who was present in the Court when DVD was operated, it has become relevant to call upon her in exercise of powers provided under section 311 of Code of Criminal Procedure (hereinafter referred to as the Code) and to take sample of her voice and photographs and sent those to the laboratory for testing.
5. Mr. I.B. Singh, learned Senior Advocate opposed the prayer of the petitioner and submitted that the trial has been delayed too much despite repeated direction of the Court at several stages. He further invited the attention of this Court towards the order passed by the Hon’ble Supreme Court in S.L.P.(Crl.) No. (s)-9628-9629/2010, in which on 17.1.2011 by allowing the appeal the Hon’ble Supreme Court observed that the trial shall now be heard and decided expeditiously. He also furnished a list of cases which had been filed by the petitioner and almost have been dismissed, to establish that the petitioner has made much efforts to delay the proceedings. Therefore, he submitted that in light of the observation of the Hon’ble Supreme Court for any reason no interference is warranted by this Court and prayed
