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2005(3) JLJ 131
U.C. Maheshwari, J.
Nandlal and others v. State of Maharashtra
Criminal Revision No. 1609 of 2004 : against the order of III Additional Sessions Judge, Chhindwara, passed in Sessions Trial No. 237 of 1996;
Decided on 14.2.2005.
(2) Criminal P.C., 1973--Ss. 311, 312 and 147--defence recalling witness for further cross-examination -- documents on which cross-examination sought were flied subsequently by prosecution expenses cannot be imposed on defence.
Trial u/Ss. 302, 376(2) (g) and 201 read with section 34 of Indian Penal Code (for short ‘IPC‘) was pending and in its earlier stage one prosecution witness, regarding expert report of DNA test, Doctor G.V. Rao (PW 58) was examined, cross-examined and discharged but some of the documents in regard to said report were not submitted either by prosecution or by this witness at earlier stage of examination. Then an application U/S 91 of the Code was submitted by the applicants for calling all those documents, same was dismissed by the trial Court after which revision before this Court was preferred in which the order was set aside and remitted back to trial Court for deciding afresh, which again dismissed, the same, the applicants again filed Criminal Revision No. 1184/04 before this Court which was also dismissed on 30.1.2003, then the matter went up to the Supreme Court. [Para 2
The prosecution was directed to submit documents as they are related with the said report and witness. Dr. G.V. Rao, then defence was entitled to cross-examine this witness again in view of said documents and with this prayer, application u/s 311 of Code was submitted. This application was considered and allowed at earlier stage before passing the impugned order as appears from the order itself, and as directed the said witness did not appear inspite of intimation as per prescribed procedure and it was also reported before the trial Court that due to conviction in a criminal matter, the said witness had been dismissed or terminated or discontinued from that laboratory or office and is not available as regular employee and when he was called by the Court through process for his further cross-examination then he sent some message to the Court that subject to payment of Rs. 12,000/- as T A, DA he would appear for further cross-examination.
In these circumstances, the question of bearing expenses of this witness as per prosecution should be borne by applicants accused because prayer for recalling was made by them, while the present applicants prayed that prayer for recalling this witness was in view of those documents which had been submitted at the later stage and the same were not on record when witness was examined and discharged at early stage so witness should be recalled on the expenses of non-applicant to give an opportunity of cross-examination to defence.
In the above said circumstances, by impugned order applicants accused were directed to afford and deposit the expenses of the witness with further direction that after depositing this amount the witness be called for his further cross-examination. This order has been called in question by this revision. [Paras 4 to 6
Held : So far as his first submission is concerned, that the order is interlocutory and cannot be entertained in revisional jurisdiction, has not impressed me because by impugned order, applicants are directed to deposit a very huge amount for recalling of the witness while the concerning documents were not submitted by the prosecution at the earlier stage when witness was cross-examined at first occasion and subsequently when at the efforts of the applicants upto the apex Court the documents are submitted, then, in view of this, the applicants are entitled to cross-examine the witness at the expenses of prosecuting agency. Suppose the impugned order is maintained and the applicants are not in a position to deposit the money of the expenses then they will be deprived of their valuable right to cross-examine by which they may prove their case and it is a settled principle of criminal jurisprudence that defence of the accused should never be prejudiced because of the act of the prosecuting agency.
In view of section 312 of the Code, the trial Court was duty bound to direct the non-applicant-State to afford the expenses of witness in above mentioned circumstances but contrary to it, impugned order was passed without supplying proper and cogent reasons. So non-applicant cannot be given any advantage just contradictory to provision of section 312 of Code. AIR 1936 Lah. 919, AIR 1926 Pat. 214, AIR 1963 Pun. 143 and 1968 JLJ 530 relied on. 2003(1) MPLJ 200, AIR 2000 SC 3346 and AIR 1999 SC 1028 distinguished. [Paras 12 & 13
(3) Criminal P.C., 1973--S. 91--application filed by accused for production of documents pertaining to DNA tests -- prosecution should produce such documents -- accused should be allowed to inspect such documents. [Para 2
¼1½ naM çfØ;k lafgrk] 1973&/kkjk 397@401&lk{kh dks vkSj çfrijh{kk ds fy, cqykus gsrq vfHk;qDr }kjk cgqr cM+h jde fuf{kIr fd, tkus dk vkns‘k&u oS/k] u U;k;ksfpr gh&varoZrh ugha ekuk tk ldrk&iqujh{k.kh; gSA ¼2½ naM çfØ;k lafgrk] 1973&/kkjk 311] 312 rFkk 147&çfrj{kki{k }kjk lk{kh vkSj çfrijh{kk ds fy, cqyk;k x;k&ftu nLrkostksa ij çfrijh{kk bZfIlr og vfHk;kstui{k }kjk ckn esa Qkby fd, x,&O; çfrj{kki{k ij vf/kjksfir ugha fd;k tk ldrkA Hkkjrh; naM lafgrk ¼la{ksi ds fy, ^naM lafgrk*½ dh /kkjk 34 ds lkFk ifBr /kkjk 302] 376¼2½ ¼N½ rFkk 201 ds v/khu fopkj.k yafcr Fkk rFkk mlds iwoZrj çØe ij Mh ,u , ijh{k.k dh fo‘ks"kK fjiksVZ ds laca/k esa vfHk;kstu lk{kh Mk- th-oh- jko ¼v lk 58½ dh ijh{kk vkSj çfrijh{kk dh xbZ Fkh rFkk mls mUeksfpr dj fn;k x;k Fkk ijarq mDr fjiksVZ ls lacaf/kr dqN nLrkost vfHk;kstui{k }kjk ;k bl lk{kh }kjk ijh{kk ds iwoZrj çØe ij is‘k ugha fd, x, FksA fQj vkosndx.k }kjk og lc nLrkost e¡xkus ds fy, naM çfØ;k lafgrk dh /kkjk 91 ds v/khu vkosnu fd;k x;k] mls fopkj.k U;k;ky; }kjk [kkfjt dj fn;k x;k ftlds i‘pkr~ bl U;k;ky; ds le{k iqujh{k.k vkosnu fd;k x;k ftlesa vkns‘k vikLr dj fn;k x;k vkSj u, fljs ls fofu‘p;u ds fy, vkosnu fopkj.k U;k;ky; dks okil çsf‘kr dj fn;k x;k ftlus iqu% mls [kkfjt dj fn;kA vkosndx.k us iqu% bl U;k;ky; ds le{k nkafMd iqujh{k.k Ø-1184@04 Qkby fd;k] og Hkh 30-1-2003 dks [kkfjt dj fn;k x;k] fQj ekeyk mPpre U;k;ky; esa x;kA ¼iSjk 2½ vfHk;kstui{k dks nLrkost is‘k djus dk funs‘k fn;k x;k D;ksafd og mDr fjiksVZ vkSj bl lk{kh Mk- th-oh-jko ls lacaf/kr gS] fQj çfrj{kki{k mDr nLrkostksa dh n`f"V ls bl lk{kh dh iqu% çfrijh{kk djus dk gdnkj gS bl çkFkZuk ds lkFk naM çfØ;k lafgrk dh /kkjk 311 ds v/khu vkosnu fd;k x;kA bl vkosnu ij fopkj fd;k x;k rFkk] tSlk Lo;a vkns‘k ls çrhr gksrk gS] vkf{kIr vkns‘k ikfjr djus ls iwoZ ds çØe ij eatwj fd;k x;k] rFkk funs‘kkuqlkj mDr lk{kh] fofgr çfØ;k ds vuqlkj lalwfpr fd, tkus ds ckotwn] milatkr ugha gqvk rFkk fopkj.k U;k;ky; ds le{k ;g Hkh fjiksVZ dh xbZ fd nkafMd ekeys esa nks"kflf) ds dkj.k mDr lk{kh ml ç;ksx‘kkyk ;k dk;kZy; dh lsok ls gVk fn;k x;k gS vFkok mldh lsok lekIr ;k fofPNUu dj nh xbZ gS vkSj og fu;fer deZpkjh dh Hkk¡fr miyC/k ugha gSA mls tc mldh vkxs çfrijh{kk ds fy, U;k;ky; }kjk vknsf‘kdk ds ek/;e ls cqyk;k x;k rc mlus U;k;ky; dks lans‘k Hkstk fd Vh ,] Mh , ds :i esa # 12]000@& ds lank; ds v/;/khu og vkxs çfrijh{kk ds fy, milatkr gksxkA bu ifjfLFkfr;ksa esa] vfHk;kstui{k ds vuqlkj bl lk{kh dk O;; vkosnd vfHk;qDrx.k }kjk ogu fd;k tkuk pkfg, D;ksafd iqu% cqykus dh çkFkZuk mUgksaus dh Fkh( tcfd çLrqr vkosndx.k us çkFkZuk dh fd bl lk{kh dks iqu% cqykus dh çkFkZuk mu nLrkostksa dh n`f"V ls dh xbZ Fkh ftUgsa i‘pkorhZ çØe ij is‘k fd;k x;k Fkk rFkk tc iwoZrj çØe ij lk{kh dh ijh{kk dh xbZ Fkh vkSj mls mUeksfpr fd;k x;k Fkk rc og vfHkys[k ij ugha Fks( vr% çfrj{kki{k dks çfrijh{kk dk volj nsus ds fy, lk{kh dks vukosnd ds O;; ij iqu% cqyk;k tkuk pkfg,A mi;qDr ifjfLFkfr;ksa esa] vkf{kIr vkns‘k }kjk vkosnd&vfHkqDrx.k dks lk{kh dk O;; ogu vkSj fuf{kIr djus dk funs‘k bl vfrfjDr funs‘k ds lkFk fn;k x;k fd og jde fuf{kIr djus ds i‘pkr~ lk{kh dks vkSj çfrijh{kk ds fy, cqyk;k tk,A bl iqujh{k.k esa ;g vkns‘k ç‘uxr fd;k x;k gSA ¼iSjk 4 ls 6½ vfHkfu/kkZfjr % tgk¡ rd mudk çFke ladFku lacaf/kr gS fd vkns‘k varoZrh gS vkSj iqujh{k.k vf/kdkfjrk esa xzg.k ugha fd;k tk ldrk] eSa mlls çHkkfor ugha gw¡ D;ksafd vkf{kIr vkns‘k }kjk vkosndx.k dks lk{kh iqu% cqykus ds fy, cgqr cM+h jde fuf{kIr djus dk funs‘k fn;k x;k gS] tcfd iwoZrj çØe ij tc lk{kh dh çFke volj ij çfrijh{kk dh xbZ Fkh rc vfHk;kstui{k }kjk lacaf/kr nLrkost is‘k ugha fd, x, Fks rFkk ckn esa tc vkosndx.k ds mPpre U;k;ky; rd fd, x, ç;klksa ds i‘pkr~ nLrkost is‘k fd, x, gSa rc] bl n`f"V ls] vkosndx.k vfHk;kstu vfHkdj.k ds [kpZ ij lk{kh dh çfrijh{kk djus ds gdnkj gSaA eku fy;k tk, fd vkf{kIr vkns‘k dk;e j[kk tkrk gS vkSj vkosndx.k O;; dk /ku fuf{kIr djus dh fLFkfr esa ugha gSa rc og çfrijh{kk ds vius ewY;koku vf/kdkj ls] ftlds }kjk og viuk i{kdFku lkfcr dj ldrs gSa] oafpr gks tk,¡xs rFkk ;g nkafMd fof/k ‘kkL= dk lqLFkkfir fl)kar gS fd vfHk;kstu vfHkdj.k ds dk;Z ds dkj.k vfHk;qDr dh çfrj{kk ij dHkh&Hkh çfrdwy çHkko ugha iM+uk pkfg,A naM çfØ;k dh /kkjk 312 dh n`f"V ls( fopkj.k U;k;ky; Åij mfYyf[kr ifjfLFkfr;ksa esa vukosnd&jkT dks lk{kh dk O;; ogu djus dk funs‘k nsus dks drZO; }kjk vkc) Fkk] ijarq rRçfrdwy] mfpr vkSj rdZiw.kZ dkj.k fn, fcuk vkf{kIr vkns‘k ikfjr dj fn;k x;kA blfy, vukosnd dks lafgrk dh /kkjk 312 ds mica/k ds Bhd foijhr dksbZ Qk;nk ugha fn;k tk ldrkA , vkb vkj 1936 ykgkSj 919] , vkb vkj 1926 iVuk 214] , vkb vkj 1963 iatkc 143 rFkk 1968 ts ,y ts 530 voyafcrA 2003¼1½ ,e ih ,y ts 200] , vkb vkj 2000 ,l lh 3346 rFkk , vkb vkj 1999 ,l lh 1028 çHksfnrA ¼iSjk 12 ,oa 13½ ¼3½ naM çfØ;k lafgrk] 1973&/kkjk 91&Mh ,u , ijh{k.k ls lacaf/kr nLrkost is‘k fd, tkus ds fy, vfHk;qDrx.k }kjk vkosnu&vfHkkstui{k dks nLrkost is‘k djuk pkfg,&vfHkqDrx.k dks nLrkostksa dk fujh{k.k djus nsuk pkfg,A ¼iSjk 2½
1. This revision petition under sections 397 read with section 401 of the Criminal Procedure Code ('The Code' in brief) is directed against the order dated 20th September, 2004, passed by III Additional Sessions Judge, Chhindwara, in Sessions Trial No. 237/96, whereby the expenses for recalling of witness was directed to be deposited by applicants.
2. Brief facts which are necessary for disposal of this revision petition are like that, the trial u/Ss. 302, 376(2) (g) and 201 read with section 34 of Indian Penal Code (for short 'IPC') was pending and in its earlier stage one prosecution witness, regarding expert report of DNA test, Doctor G.V. Rao (PW 58) was examined, cross-examined and discharged but some of the documents in regard to said report were not submitted either by prosecution or by this witness at earlier stage of examination. Then an application u/s 91 of the Code was submitted by the applicants for calling all those documents, same was dismissed by the trial Court after which revision before this Court was preferred in which the order was set aside and remitted back to trial Court for deciding afresh, which again dismissed, the same, the applicants again filed Criminal Revision No. 1184/04 before this Court which was also dismissed on 30.1.2003, then the matter went up to the Supreme Court by Special Leave Appeal (Criminal) No. 691/03, in which the fo11owing order was passed :
"Leave granted.
Learned counsel appearing for the respondent State is directed to produce before the trial Court documents pertaining to both the DNA tests, i.e., the documents mentioned in item 1 of para 3 of the impugned judgment and the correspondence, if any, carried on by the prosecuting agency with the laboratory CDFD (CCMB), Hyderabad. No other documents to be produced. The appellants to be permitted to inspect the documents after they are produced.
The appeal stands disposed of accordingly. No order as to costs."
3. Thereafter, in compliance of the said order, only few documents were submitted by prosecution but not all as directed. But as submitted by applicants that the non-production of the documents are not the subject-matter of this revision and therefore this aspect is not necessary to examine at this stage.
4. While the prosecution was directed to submit documents as they are related with the said report and witness. Dr. G.V. Rao, then defence was entitled to cross-examine this witness again in view of said documents and with this prayer, application u/s 311 of Code was submitted. This application was considered and allowed at earlier stage before passing the impugned order as appears from the order itself, and as directed the said witness did not appear inspite of intimation as per prescribed procedure and it was also reported before the trial Court that due to conviction in a criminal matter, the said witness had been dismissed or terminated or discontinued from that laboratory or office and is not available as regular employee and when he was called by the Court through process for his further cross-examination then he sent some message to the Court that subject to payment of Rs. 12,000/as T A, DA he would appear for further cross-examination.
5. In these circumstances, the question of bearing expenses of this witness as per prosecution should be borne by applicants-accused because prayer for recalling was made by them, while the present applicants prayed that prayer for recalling this witness was in view of those documents which had been submitted at the later stage and the same were not on record when witness was examined and discharged at early stage so witness should be recalled on the expenses of non-applicant to give an opportunity of cross-examination to defence.
6. In the above said circumstances, by impugned order applicants accused were directed to afford and deposit the expenses of the witness with further direction that after depositing this amount the witness be called for his further cross-examination. This o
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