Order on Board

11-10-2022

1. This criminal revision is filed against the order passed by the learned First Additional Sessions Judge, Ambikapur, District Sarguja in Sessions Trial No. 56 of 2021 parties being “State of Chhattisgarh vs. Nohar Sai and Ors.” dated 10.8.2022 whereby an application moved under Section

91 of the Cr.P.C. was rejected.

2. The case in the nutshell is that the applicants are being prosecuted for the offence punishable under Section 302 read with Section 34 of the IPC. In the Sessions Trial, all the prosecution witnesses have been examined and thereafter, an application under Section 91 read with Section 172 of the Cr.P.C. was moved before the learned Court below on the ground that Sunil Kumar Kerketta, Investigating Officer (PW-7) has stated in paragraph 15 of his evidence that he has registered the offence under Section 302 of the IPC without obtaining the postmortem report (Ex.P/7). As the doctor has given a short postmortem report in which manner of death is narrated as homicidal and the short postmortem report is not a part of the charge-sheet. It is further stated in the application that the case-diary may be produced before the learned trial Court before passing the judgment to verify the above stated facts.

3. Learned trial Court vide order dated 10.8.2022 rejected the application on the ground that the Investigating Officer has already been cross- examined and necessity of the case-diary was not raised during the cross-examination.

4. Learned counsel for the applicants submits that the case-diary is necessary for just adjudication of the case. He further submits that an application moved under Section 311 of the Cr.P.C. for recalling the doctor as well as the Investigating Officer, has subsequently been allowed by the learned trial Court, therefore, it is necessitated to call for the case-diary to bring the above facts on record.

5. On the other hand, learned State counsel opposes the above made submissions and submits that the trial Court has rightly rejected the application moved by the applicants and there is no necessity to produce the case-diary before the Court below.

6. I have heard learned counsel for the parties and perused the record.

7. From the record, it appears that an application under Section 91 read with Section 172 of the Cr.P.C. has been moved by the present applicants in trial for the offence punishable under Section 302 read with Section 34 of the IPC. In the said application, the applicants have stated that the Investigating Officer in his evidence has admitted that a short postmortem report was prepared by the doctor but the same is not a part of the charge-sheet and therefore, a prayer was made by the present applicants to call for case-diary to contradict the evidence of the Investigating Officer.

8. The Hon’ble Supreme Court in Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi), reported in (2010) 6 SCC 1 while dealing with right of accused to request the Court for production of a document which is part of general diary held as under:- ‘215. As is evident from the consistently stated principles of law, that right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions aforereferred. But still the accused has been provided with definite rights under the provisions of the Code and the constitutional mandate to face the charge against him by a fair investigation and trial. Fairness in both these actions essentially needs to be adhered to.

217. Further, Section 91 empowers the Court to summon production of any document or thing which the Court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the Court for issuance of process for compelling