Mohd. Azam Khan vs State of U. P. - 2023 Supreme(All) 1206

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1206

IN THE HIGH COURT OF ALLAHABAD
RAJEEV MISRA, J.
Mohd. Azam Khan - Applicant
Versus
State of U.P. and Another - Opposite Parties
Application U/s 482 No. 14477 of 2023
Decided On : 25-07-2023

Advocates:
Advocate Appeared:
For the Applicant : Syed Imran Ibrahim.

Headnote:
Indian Penal Code, 1860 - Sections 504, 171(G) - Criminal Procedure Code, 1973 - Section 482, 161- Representation of Peoples Act, 1951 - Section 125 - Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 - Section 3(1)(X) - Evidence Act - Section 65-B - Forensic Science Laboratory - Quashing of criminal proceeding - Intentional insult with intent to provoke breach of peace - False statement in connection with an election - Held, Court finds that only objection raised by applicant which is tenable in law is that only when there is a requisite certificate of competent person only then disputed cassette is worthy of consideration and can be relied upon - Since objection raised by applicant relates to a procedural irregularity coupled with fact that judgement of Apex Court in (supra) does not prohibit from obtaining requisite certificate i.e. one required in terms of Section 65-B of Evidence Act at subsequent stage of trial but before delivery of judgement, objection raised by learned counsel for applicant is liable to be sustained - Disposed of.

JUDGMENT :

1. This application under Section 482 Cr.P.C. has been filed by accused-applicant Mohd. Azam Khan challenging the order dated 29.10.2022, passed by Additional Sessions Judge/Special Judge (M.P./MLA), Court No.4, Rampur in Special Sessions Trial No.37 of 2018 (State Vs. Mohd. Azam Khan), under Sections 504 and 171(G) IPC, Section 125 Representation of Peoples Act, 1951 and Section 3(1)(X) SC/ST Act, police station Tanda, district Rampur, whereby a direction has been issued to the accused-applicant to give his voice sample so that the Director F.S.L., Moradabad could examine the voice of the audio cassette to ascertain as to whether the inflammatory/derogatory speech recorded in the audio cassette is that of the accused-applicant and the order dated 22.11.2022, whereby the application (paper no.43 kha) filed by the accused-applicant for recall of order dated 29.10.2022 has been rejected.

2. Heard Mr. Syed Imran Ibrahim, the learned counsel for applicant, Mr. Mahesh Chandra Chaturvedi, the learned Additional Advocate General assisted by Mr. Manu Raj Singh, the learned A.G.A.-I and Mr. Prashant Kumar, the learned A.G.A. for State.

3. Record shows that in respect of an incident, which is alleged to have occurred on 07.08.2007, a delayed F.I.R. dated 08.08.2007 was lodged by first informant-opposite party-2, namely, Dheeraj Kumar Sheel and was registered as Case Crime No.959 of 2007, under Sections 504 and 171(G) IPC, Section 125 Representation of Peoples Act, 1951 and Section 3(1)(X) SC/ST Act, police station Tanda, district Rampur. In the aforesaid F.I.R., applicant has been nominated as solitary named accused.

4. The gravamen of the allegations made in the F.I.R. is to the effect that on 07.08.2007, accused-applicant, who was member of Legislative Assembly and a leader of Samajwadi Party, made a speech, which was derogatory, inasmuch as, the words used were offensive in nature as they caused hurt to the sentiments of a particular community and further the said act of the accused-applicant violated the model code of conduct, issued by the Election Commission.

5. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime number in terms of Chapter XII Cr.P.C. He examined the first informant and other witnesses by recording their statements under Section 161 Cr.P.C.. During course of investigation, statement of Gulab Rai-Naib Tehsildar was also recorded by the Investigating Officer on 21.07.2007. This witness in his statement before the Investigating Officer has stated that the entire event which occurred on 07.08.2007 including the inflammatory/derogatory speech of the accused was recorded and the CD cassette of the same was handed over to the Station Officer of the concerned police station, namely, M.P. Singh.

6. Record further shows that second statement of aforesaid witness, namely, Gulab Rai was recorded on 11.01.2008, in which he has stated that the services of one Sanjay, who runs a studio by the name of Pooja Cassette Centre, were taken to record the entire event. This witness further stated that the entire event was video-graphed by the proprietor of aforementioned firm, namely, Sanjay and the video cassette of the same was submitted by him on 09.08.2007 to the police officials.

7. Subsequently, the statement of Sanjay, proprietor of Pooja Cassette Centre, was recorded. This witness in his statement has categorically stated that the event which occurred on 07.08.2007 was recorded by him on the instructions of Gulab Rai, Naib Tehsildar. After recording was completed, the video cassette was handed over by him to Gulab Rai, Naib Tehsildar.

8. After the aforesaid video cassette was received by the Investigating Officer, it appears that an application was filed before court below seeking permission of the court to have voice sample of the accused-applicant so that the veracity of the recovered cassette as to whether the voice recorded therein is that of accused