Heard learned counsel for the parties and perused the material available on record.
By way of the instant misc. petition, the accused petitioner Sharad Chandra @ Sarat Chandra has approached this Court being aggrieved of the order dated 9.9.2015 passed by the learned Sessions Judge, Jodhpur District, Jodhpur in Sessions Case No.152/2013 whereby, the application preferred on his behalf in the trial Court under Section 91 Cr.P.C. for summoning certain documents, was rejected.
The petitioner is facing trial in the Court of learned Sessions Judge, Jodhpur District, Jodhpur for the offences under Sections 342, 376(2)(f), 376D, 354A, 370(4), 506, 509/34, 109 and 120-B I.P.C., Sections 23 and 26 of the Juvenile Justice Act and Sections 5(f)(g)/6 and 7/8 of the POCSO Act. The trial is presently proceeding at the stage of cross examination of the last prosecution witness namely, the Investigating Officer PW 43 Smt.Chanchal Mishra.
There is a serious contest between the accused and the prosecution regarding the age of the victim. The prosecution has come out with a proposition before the trial Court that the victim was below 18 years of age on the date of occurrence and, therefore, the accused are liable to be tried for the offences under the POCSO Act. On the other hand, the accused claims that the victim was above 18 years of age and thus, the prosecution of the accused under the POCSO Act is unwarranted. The prosecution endeavored to prove the age of the victim before the trial Court by producing her matriculation school certificate in evidence. As per the date of birth mentioned in the said certificate, the victim was below 18 years of age on the date of occurrence. However, the accused claimed to have laid hands on certain documents including contemporaneous school record as per which, the victim's age as on the date of occurrence comes to be above 18 years.
Earlier, the co-accused Asharam @ Ashumal raised this issue before the trial Court and prayed for summoning certain documents from the school where the victim was initially admitted. The said application was rejected by the trial Court upon which, the accused Asharam preferred S.B. Crl. Misc. Petition No.796/2014 before this Court. The said misc. petition too was rejected by this Court by order dated 29.3.2014 upon which the accused approached the Supreme Court by way of Criminal Appeal No.2337/2014. The said appeal was allowed by the Supreme Court in the following terms :-
"There is in our opinion considerable merit in the submission made by Mr. Luthra that the question of the age of the victim is an important question that would fall for determination of the Trial Court. It is true that the Trial Court has already take cognizance of the offences and the trial has commenced but the question whether she was a child as on the date of occurrence remains to be finally determined on a proper appreciation of the evidence adduced at the trial. In the circumstances the appellant's prayer for summoning of the documents in which the date of birth of the victim is given differently from what is alleged by the prosecution was absolutely legitimate and legally permissible. The Trial Court and so also the High Court in our opinion fell in error in denying to the appellant an opportunity to have the documents mentioned above summoned from the concerned quarters to provide an opportunity to the appellant to confront the witness who has signed the said documents insofar as the same recorded the date of birth differently from the one alleged by the prosecution to be her true date of birth.
In the circumstances we have no hesitation in setting aside the order passed by the Trial Court and that passed by the High Court and issuing an appropriate direction for summoning of the said documents. We accordingly allow this appeal, set aside the order passed by the Trial Court and the High Court and direct that the documents mentioned in the body of this order namely (1) the admission form (2) registration form (3) the affidavit allegedly sworn by Karam Vir Singh, father of the victim (4) proposal form in connection with the LIC policy No.222629997 issued by the LIC, Shahjahanpur Mandal, Bareily, U.P. be summoned by the Trial Court for such use as may be legally permissible on behalf of the defence. We make it clear that we have expressed no opinion about the genuineness or otherwise of the documents which question is left to be determined by the Trial Court. The Trial Court shall take steps to ensure that the process of summoning of the documents does not delay the trial."
At the stage when the investigating officer was in the process of being examined, the accused petitioner Sharad Chandra prayed for summoning various documents in order to prove and establish that the victim was above 18 years of age and also to demonstrate that the investigating agency had not acted fairly and was in collusion with the complainant.
The learned trial Judge has, during the course of the trial allowed the defence to exhibit the copies obtained under the R.T.I. Act of the very documents sought for by the accused under Section 91 Cr.P.C. under objection of the prosecution and the final decision regarding the admissibility of these documents has been deferred for later. This is so for the reason that the originals of the documents were not available with the accused who filed copies of the documents received under the Right to Information Act and purported to use the same for their defence.
The application moved on behalf of the accused petitioner under Section 91 Cr.P.C. was rejected by the learned trial Court vide order dated 9.9.2015, upon which, he has approached this Court praying for setting aside the order under challenge and for issuance of a direction to the trial Court that the original documents which the accused requires to establish his innocence be summoned so that his defence is not prejudiced.
Learned Senior Advocate Mr.M.R. Singhvi assisted by Mr.Ashwin Nayak and Mr.Bhavit Sharma the petitioner's counsel vehemently contended that the learned trial Judge acted in a totally mechanical and unjust fashion while rejecting the application preferred by the accused petitioner for summoning the original documents in defence. They contended that unless the original documents are summoned, the accused will be severely hampered in establishing the plea that the trial is wrongly being proceeded for the offences under the POCSO Act. They contended that the contemporaneous school documents sought to be summoned under Section 91 Cr.P.C. clearly establish that the date of birth of the victim as mentioned in the Secondary School certificate is incorrect and that she was as a matter of fact above 18 years of age on the date of occurrence. They drew the Court's attention to the application dated 27.3.2014 moved by the prosecution before the trial Court under Section 173(8) Cr.P.C. and urged that the prosecution proposed to collect and file most of the documents which the accused sought to summon by way of the application preferred under Section 91 Cr.P.C. before the trial Court. It was contended that the documents were not suiting the prosecution and, therefore, while filing the final result of investigation in the Court through a report dated 20.7.2015, the documents which were vital and had a material bearing for establishing the age of the victim were deliberately concealed by the investigating agency and were not filed along with the final charge-sheet. In this background, the accused petitioner was left with no option but to move the application before the trial Court under Section 91 Cr.P.C. for summoning the original documents. They relied on the following judgments :-
(i) Birad Mal Singhvi. vs. Anand Purohit reported in 1988 (Supp) SCC 604;
(ii) Babloo Pasi. vs. State of Jharkhand and Anr. reported in (2008) 13 SCC 133;
(iii) Madan Mohan Singh and Ors. vs. Rajni Kant and Anr. reported in (2010) 9 SCC 209;
(iv) Jitendra Singh alias Babboo Singh. vs. State of Uttar Pradesh. reported in (2010) 13 SCC 523;
(v) Abuzar Hossain alias Gulam Hossain. vs. State of West Bengal. reported in (2012) 10 SCC 489;
(vi) Criminal Appeal No.2337/2014 (arising out of SLP (Crl.) No.3517/2014), Asharam @ Ashumal vs. State of Rajasthan;
and urged that the impugned order passed by the trial Court is totally illegal and amounts to an abuse of process of law. They, therefore, contended that the impugned order deserves to be set aside and the documents prayed for by the accused petitioner be summoned in original and be allowed to be exhibited at the trial so that the accused is not prejudiced in his defence.
Learned Government Advocate Mr. S.K. Vyas assisted by Mr.Samit Singh, DCP (West) and Ms.Seema Hingoniya, ACP West and Mr.P.C. Solanki counsel for the complainant vehemently opposed the submissions advanced by the learned counsel for the petitioner. They submitted that the trial Court rightly rejected the petitioner's application on the premise that the investigating officer is not the person who prepared such documents and she cannot be confronted with the same. As such, the accused petitioner cannot insist for production of the documents during the testimony of the investigating officer. They submitted that the documents sought to be summoned are totally irrelevant to the controversy before the trial Court but still the accused would be at liberty to get summoned and prove such documents when defence evidence is recorded as observed by the trial Court in its order. They, therefore, urged that the order under challenge is perfectly just and legal and does not require any interference by this Court in exercise of its inherent powers.
I have heard the arguments advanced by the learned counsel for the parties and have gone through the order under challenge and the entire material filed on record.
On the face of record, the order passed by the trial Court appears to be anomalous and suffers from non-application of mind. Amongst the documents which the accused petitioner sought to be summoned were the Rojnamcha entries maintained by the police department. Certified copies of Rojnamcha provided to the accused by the police department under the RTI Act have been allowed to be exhibited during the course of cross examination of the investigating officer albeit under protest by the prosecution. The Rojnamcha is a document maintained by the police department. As such, if at all the trial Court was of the opinion that the rojnamcha entries which the accused desired to exhibit were relevant, then there was no reason to have exhibited such document under protest and not to have summoned the originals.
The Hon'ble Supreme Court while deciding the S.L.P. preferred by the co-accused Asharam @ Ashumal has clearly held that inspite of the victim's matriculation certificate filed on record by the prosecution, the accused has a right to make an endeavor to establish before the trial Court that the victim was above 18 years of age on the date of occurrence. In this background, the school record or other contemporaneous documents by which it could be established that the victim was major on the date of occurrence are relevant and material for reaching to a just conclusion and the production thereof is essential for providing a fair opportunity of defence to the accused who is facing trial for serious offences including the offences under the POCSO Act. Needless to say that if it can be established that the victim was above 18 years of age on the date of occurrence, the charge under the POCSO Act which provides arduous presumptions against innocence of accused would fail and the burden of proving innocence will be lifted from the shoulders of the accused and instead, the prosecution would be burdened with the onus of proving the guilt of the accused. In this background, the documents sought for by the petitioner under Section 91 Cr.P.C., which could possibly be material for deciding the age of victim and which the trial Court has already allowed to be proved under objection, are definitely relevant to the controversy prevailing before the trial Court. The accused was justified in entertaining a hope that the documents would be collected and produced by the investigating agency as is apparent from the following recitals made in the report dated 27.3.2014 forwarded by the Addl. S.P. Shri Pahad Singh to the learned P.P. :-
However, with the filing of the investigation closure report on 20.7.2015, this hope of the accused was extinguished and thereafter, he was left with no option but to move the trial Court for summoning the documents under Section 91 Cr.P.C. The approach adopted by the trial Court while allowing the documents to be exhibited under protest appears to be somewhat erroneous. Ordinarily, a document can only be allowed to be exhibited during trial of a criminal case if it is relevant for deciding the controversy involved therein. Thus, if the Court allows a document to be exhibited (albeit under protest), then it has to be assumed that the same may have some relevancy to the issue raised before it. A document can be allowed to be exhibited under protest in two circumstances ; (a) its relevancy is in question and is left open to be decided at the final stage of the case and (b) the original document is not available and a copy thereof is allowed to be exhibited under protest. In the case at hand, the trial Court has already allowed copies of the documents to be exhibited under protest. However, the Court appears to have reserved expression of opinion as to under which the above two categories, the objection was being marked on the documents. If the issue regarding the admissibility of the document is left open to be decided at the final stage of the case and at that stage, the trial Court discards the documents on the ground that the originals were not proved then the accused will be seriously prejudiced and rendered defenceless. Now comes the question as to when the original documents are required to be summoned. Suffice it to say that the Evidence Act clearly propounds that a document, unless the same falls in the category of the public document, has to be proved by examining the scribe of the document or such witness who is otherwise authorised to prove it. The investigating officer is obviously not the scribe of the documents sought to be summoned under Section 91 Cr.P.C. Most of the documents sought to be summoned are required by the accused for proving the age of the victim and were issued by different educational institutions and local bodies at Uttar Pradesh and as such, the accused should have requested the trial Court for summoning these documents in original when the victim or her father were in the witness box. No such request was made at that point of time. The trial Court was perfectly justified in observing that the investigating officer cannot be confronted with such documents. Nonetheless, the accused can generally question the witness regarding the circumstances emanating from such documents even without actually confronting the investigating officer with the document. Thus, now the only option available with the accused is to have the documents summoned and proved by examining the concerned witness who prepared or issued such document during defence evidence. The observations made by the trial Court in this regard while passing the order dated 9.9.2015 are perfectly justified. However, it is equally true that the accused was definitely entitled to entertain a reasonable expectation that the documents would be produced on the record by the investigating agency which was still making an endeavor to acquire the documents in the pending investigation as is evident from the aforequoted portion of the application dated 27.3.2014. These hopes evaporated with the filing of the final charge-sheet on 20.7.2015.
The trial Court, however, fell in error while adopting a similar approach for the documents in possession and control of the prosecution agency i.e. Rojnamcha entry. Since the original Rojnamcha is the document of the prosecution, the trial Court ought to have directed summoning thereof for the purpose of allowing the accused to confront the Investigating Officer with the same.
So far as the prayer made by the accused for being provided with a transcript of video recording of the statement of the victim recorded during investigation is concerned, the same is misconceived. It is a settled principle of criminal jurisprudence that a previous statement of a witness can only be used to confront the witness during his/her sworn testimony. The victim has long since been examined at the trial and the prayer to provide a transcription of the recorded statement if any should have been made at that stage. If the prayer was turned down, then the accused would be required to challenge the rejection by taking recourse to appropriate remedy. Having failed to do so, the accused cannot now claim that he be provided with the transcription. If at all, the accused is desirous of putting questions to the investigating officer in reference to the said recorded statement of the victim, then he would be entitled to do so after getting a transcription prepared at his own level.
As a consequence of the above discussion, the instant misc. petition deserves to be and is hereby partly allowed, the order dated 9.9.2015 passed by the learned Sessions Judge, Jodhpur District, Jodhpur cannot be sustained in its entirety and deserves to be modified. The trial Court is directed to summon the original Rojnamcha entries which have been allowed to be proved under protest and shall allow the accused to confront the investigating officer with the same, if such confrontation has already not been made.
The trial Court shall also summon all the other original documents copies whereof have been allowed to be exhibited under protest. The accused shall be entitled to prove these documents by examining the concerned witnesses in defence.
Stay petition also stands disposed of.