2012 ALL MR (Cri) 3664
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T.V. NALAWADE, J.

Central Bureau Of Investigation Vs. Raju Chintaman Sonawane & Ors.

Criminal Application Nos.4503 of 2011,Criminal Application Nos.4504 of 2011

20th October, 2012

Petitioner Counsel: Mr. SIDHARTH LUTHRA, Mr. D.N. SALVI, Mr. ALOK SHARMA, Shri SINGH
Respondent Counsel: Mr. M.A. TANDALE, Mr. V.D. SAPKAL, Mr. N.B. PATIL

(A) Criminal P.C. (1973), Ss.311, 319 - Examination of witness - Murder case - Applicant widow of deceased wanted to give her evidence to substantiate her allegation as to the involvement of some other persons who were not made accused - Recourse to the provisions of Ss.311 and 319 of Cr.P.C. can be taken - It cannot be said that examination of said lady will destroy case of prosecution.

The power of Criminal Court under Section 311 of Cr.P.C. is very wide power. This provision needs to be read with Section 319 of Cr.P.C. In the instant case the grievance of the widow of deceased is that the main accused who are behind the murder of her husband, are not made accused though there is material to make out the case of conspiracy against them. This lady has doubt about the fairness of investigating agency and also, the prosecuting agency. In view of the nature of grievance of this lady, the trial Court can have recourse to the provisions of Section 311 and 319 of Cr.P.C. if that is felt necessary. Even right is given to this lady to intervene. Inspite of these circumstances, the prosecution does not want to examine this lady as a witness. If this lady wants to give some evidence, in view of the nature of her grievance, opportunity needs to be given to her, to have her words by way of evidence on record. Whether she can be believed or not is to be decided by the Court. It cannot be said that this lady will destroy the case of prosecution. 2004 ALL MR (Cri) 2502 (S.C.) Ref. to. [Para 14]

(B) Criminal P.C. (1973), S.172(2) - Calling of case diaries - Power of Court.

Provisions of Section 172 (2) of Cr.P.C. also gives power to the Criminal Court to call the case diary. The trial Court has the power to call the case diaries of all the investigating agencies which had done some investigation in the case. If the material collected during investigation appears relevant to the trial Court, the trial Court can have recourse to the provisions of Sections 311 and 319 of Cr.P.C. If the trial Court wants to go through the record to ascertain the truth, the investigating agency cannot prevent the trial Court from going through the record by giving reason that they have not produced such record alongwith the charge sheet and they do not want to rely on such record. If the investigating agency or the prosecution is allowed to take such defence, the very purpose behind Section 172 (2), 311 and 319 of Cr.P.C. will be defeated. So such defence cannot be allowed. [Para 15]

Cases Cited:
Vijay Kumar Vs. State of Uttar Pradesh and another, 2011 ALL MR (Cri) 2893 (S.C.) =(2011) 8 SCC 136 [Para 8]
Masalti Vs. The State of Uttar Pradesh, 1968 (1) Cri.L.J. 226 (S.C.) [Para 8]
Darya Singh and others Vs. State of Punjab, 1965 (1) Cri.L.J. 350 (S.C.) [Para 8]
Shivkumar Vs. Hukumchand, (1999) 7 SCC 467 [Para 9]
P.V.Narsimharao Vs. State, 1997 Cri.L.J. 3117 [Para 9]
State of Gujrat Vs. Mohd.Atik, (1998) 4 SCC 351 [Para 9]
State of U.P. Vs. Battan and others , (2001) 10 SCC 607 [Para 9]
State of NCT of Delhi Vs. Ravi Kant Sharma and others, 2007 ALL MR (Cri) 1401 (S.C.) =(2007) 2 SCC 764 [Para 10]
Sidharth and others Vs. State of Bihar, 2006 ALL MR (Cri) 888 (S.C.)=(2005) 12 SCC 545 [Para 10]
Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), 2010 ALL MR (Cri) 1627 (S.C.) =(2010) 6 SCC 1 [Para 10]
Mohammed Ankoos and others Vs. Public Prosecutor High Court of A.P., 2010 ALL SCR 147 =(2010) 1 SCC 94 [Para 10]
Sankaran Moitra Vs. Sadhna Das and another, (2006) 4 SCC 584 [Para 11]
Central Bureau of Investigation Vs. R.S.Pai and another, 2002 ALL MR (Cri) 1396 (S.C.) =(2002) 5 SCC 82 [Para 12]
Pravin Manikrao Naik & Anr Vs. The State of Maha & Anr., 2012 ALL MR (Cri) 1189 [Para 13]
Pratap Singh & Anr Vs. State of M.P., 2006 ALL MR (Cri) 555 (S.C.) [Para 13]
Shakuntalabai Khairuprasad Joshi & Anr Vs. State of Maharashtra, 2012 ALL MR (Cri) 1970 =2011 (1) Bom.C.R. (Cri) 653 [Para 13]
Zahira Habibulla H. Shaikh and another Vs. State of Gujrat and others, 2004 ALL MR (Cri) 2502 (S.C.) =AIR 2004 SC 3114(1) [Para 13]


JUDGMENT

JUDGMENT :- Both proceedings are filed under Section 482 of Cr.P.C. to challenge some orders passed by Additional Sessions Judge, Jalgaon in Sessions Case No.8/2006. In the first proceeding, the orders passed on Exh.407 and 464 are challenged and in the second proceeding, the order passed on Exh.342 is challenged. These applications were filed by the widow of the deceased. She is respondent no.2 in this proceeding. Both sides are heard. Copies of some documents which include copies of orders passed by this Court in previous proceedings were also produced for the perusal of this Court.

2. The application at Exh.407 was filed to seek reliefs of directions to prosecution, the investigating agency and to mobile phone company and landline telephone company to produce some record like Call Details, Record of conversation etc. Particulars like the numbers of SIM cards and landline numbers were given by the applicant. It is the case of the widow of the deceased that the persons against whom the charge sheet is filed were in touch with the three political rivals of the deceased and the political rivals had hatched the conspiracy of murder of the deceased. The widow wants that the three political rivals of the deceased are made accused in the case and for that such record needs to be brought before the Court. This application was opposed by the prosecution. The Sessions Court has allowed the application by observing that such record needs to be placed before the Court as it may be relevant under Section 10 of the Evidence Act and, as there is the charge of criminal conspiracy of murder of deceased.

3. The application at Exh.464 was filed for permission to examine the widow, Smt.Rajani Patil as a witness. The prosecution does not want to examine her. Her statement was recorded under Section 161 of Cr.P.C. In the application, she has contended that she has personal knowledge about the political rivalary and about the enmity which the political rivals of the deceased had with the deceased. It can be said that she wants to give evidence on motive for the crime which can be used against the political rivals who are not made accused. This application was also opposed by the prosecution but the Sessions Court has allowed this application. The Sessions Court has observed that the widow of the deceased had cooperated the investigating agency, her statement was recorded under Section 161 of Cr.P.C. and as there is a grievance of the widow that the prosecution is not examining her with some alternate motive, her evidence can be taken on record by using Section 311 of Cr.P.C.

4. In the application filed at Exh.342, the widow of the deceased prayed for a direction to investigating officer to produce some record like panchanamas of seizure of car of the deceased, seizure of some documents, which include complaints given by the deceased to higher authorities against his rivals and panchanama dated 21/9/2005. She also requested for giving direction to produce a panchanama in respect of the information collected by the investigating agency after recording the statement of accused Raju Sonawane under Section 27 of Evidence Act. These documents were prepared on 3/10/2005. She also requested to give direction to investigating officer to produce Call Details Record in respect of three mobile phone numbers. She has contended that the accused who executed the job of murder had contacted the political rivals of the deceased on these three mobile numbers. This application was also opposed by prosecution. The Sessions Court has given direction in respect of the aforesaid prayers and in respect of only these prayers, the application is allowed. There were many other prayers of the widow but the other prayers are not allowed.

5. It appears that the crime at C.R.No.242/05 was registered in Zilla Peth Police Station, Jalgaon for offences u/s 302, 120-B, 34 etc. of I.P.C. initially against two unknown persons. The deceased Shri B.G.Patil was the Presidnet of Jalgaon District Congress [I] Committee. The investigation from local police was handed over to C.I.D. The widow of the deceased was not satisfied with the investigation and so the investigation was first transferred to C.I.D. She filed proceeding in this Court for a direction to hand over the investigation to C.B.I. The investigation was then handed over to C.B.I. She filed another proceeding viz. Writ Petition No.1278/2007 for requesting this Court [Division Bench] to monitor the investigation. Reports were produced by investigating agency, C.B.I. from time to time in this proceeding. Ultimately, the proceeding came to be disposed of with some directions to the investigating agency. It appears that after making some investigation by C.B.I., accused nos.3 and 4 were added and charge sheet came to be filed against them. Allegations are to the effect that accused nos.1 and 2 executed the job for accused nos. 3 and 4.

6. At present, only respondent no.1 is facing the trial. Other accused against whom initially charge sheet was filed, died in jail. The proceeding as against the added accused has been stayed.

7. It was submitted for applicant - C.B.I. that the Sessions Court has committed error in giving aforesaid directions. It was submitted that if the widow of the deceased is allowed to be examined, her evidence may affect the prosecution case adversely. It was submitted that the aforesaid orders and probably further steps may affect the case filed against the four accused and it will derail the case. On the other hand, advocate of the widow of the deceased submitted that the Court had exercised the power given to it under Section 311 of Cr.P.C. and as the direction given by this Court in Writ Petition No.1278/07 were not complied with by C.B.I. there was no other alternative before this lady, than to move the aforesaid applications. Both the sides placed reliance on many reported cases.

8. On the basis of some observations made by Apex Court in following three reported cases : [1] (2011) 8 S.C.C. 136 : [2011 ALL MR (Cri) 2893 (S.C.)] [Vijay Kumar V/s State of Uttar Pradesh and another] [2] 1968 (1) Cri.L.J. page 226 (S.C.) Masalti V/s The State of Uttar Pradesh and [3] 1965 (1) Cri.L.J. 350 (S.C.) [Darya Singh and others V/s State of Punjab]. it was submitted for C.B.I. that the Sessions Court ought to have given reasons for allowing the widow to give evidence in the Court and also for giving direction with regard to production of aforesaid material. It was submitted that the prosecution cannot be compelled to examine a particular witness by the Court and it is the choice of the prosecution to decide as to which and how many witnesses need to be examined in a case. It was submitted that the Court is not expected to take the role of prosecutor in the exercise of powers u/s 311 of Cr.P.C. [old Section 540]. In this regard it can be said that sufficient reasons are given by Sessions Court and the widow will be examined as Court witness. The other contention is being discussed lateron.

9. On the basis of observations made in the two cases like [1999] 7 S.C.C. page 467 [Shivkumar V/s Hukumchand] and 1997 Cri.L.J. 3117 Delhi High Court [P.V.Narsimharao V/s State] it was submitted that in view of specific legislative intent appearing behind Section 301 of Cr.P.C., the private party like the widow of the deceased cannot be allowed to make such application as such participation of the private party would be against the spirit of Section 301 of Cr.P.C. One case reported as (1998) 4 S.C.C. page 351 [State of Gujrat V/s Mohd.Atik] was cited. This case was cited on altogether different point, on merits of the case. The Apex Court has discussed the admissibility of the confessional statement given by the accused during investigation and so, it is not necessary to discuss this case. The other case reported as (2001) 10 S.C.C. page 607 [State of U.P. V/s Battan and others] is also on different point and so this Court is avoiding to discuss the points involved in these two reported cases. In Writ Petition No. 1278/07, this Court has allowed the widow to intervene. Further, Sessions Court is using Section 311 of Cr.P.C. and Section 301 of Cr.P.C. cannot be used against Court.

10. The following cases were also cited for the applicant [1] (2007) 2 S.C.C. 764 : [2007 ALL MR (Cri) 1401 (S.C.)] [State of NCT of Delhi V/s Ravi Kant Sharma and others; [2] (2005) 12 S.C.C. 545 : [2006 ALL MR (Cri) 888 (S.C.)] [Sidharth and others V/s State of Bihar]; [3] (2010) 6 S.C.C. page 1 : [2010 ALL MR (Cri) 1627 (S.C.)] [Sidhartha Vashisht @ Manu Sharma V/s State (NCT of Delhi) and [4] (2010) 1 S.C.C. 94 : [2010 ALL SCR 147] [Mohammed Ankoos and others V/s Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. In these cases, provisions of Section 172 and 161 (3) of Cr.P.C. are considered by the Apex Court and the rights of the accused with regard to the perusal of the case diary and the record which is not produced alongwith charge sheet are considered. This Court holds that these cases have no relevance as the orders passed by the Sessions Court do not show that the Sessions Court will be making this record available to the defence. This Court presumes that the Sessions Court will peruse the record and then decide as to whether or not some witnesses need to be called in relation to the record for giving evidence. Further, the Sessions Court has expressed that it is using powers given under Section 311 of Cr.P.C.

11. It was submitted for the applicant, CBI that if the widow of the deceased has some grievance, she wants that the political rivals of her deceased husband needs to be made accused, she can take recourse like filing of private complaint. It is submitted that if such complaint is filed, that can be independently dealt with in view of the provisions of Section 210 of Cr.P.C. On this point, reliance was placed on the case reported as (2006) 4 S.C.C. page 584 [Sankaran Moitra V/s Sadhna Das and another]. If such defence is allowed it will make the provision of Section 319 of Cr.P.C. redundant.

12. As submission was made for the respondents that the directions given by this Court [Division Bench] in Writ Petition No. 1278/07, are not complied with and subsequently charge sheet is not filed after the order, the learned Senior Counsel Shri Luthra placed reliance on the case reported as (2002) 5 S.C.C. page 82 : [2002 ALL MR (Cri) 1396 (S.C.)] [Central Bureau of Investigation V/s R.S.Pai and another]. It was submitted that in view of the provisions of Section 173(5) & (8) of Cr.P.C., after filing of the charge sheet, if some record is collected, the investigating agency can produce such record and the wordings of Section 173(5) of Cr.P.C. needs to be interpreted in such a way that the direction given in this Section is directory and not mandatory. This point need not be discussed in the present matter.

13. On the other hand, Mr.Sapkal, Advocate for respondent no.2 placed reliance on following reported cases : [1] 2012 ALL MR (Cri) 1189 [Pravin Manikrao Naik & Anr V/s The State of Maha & Anr.] ; [2] 2006 ALL MR (Cri) 555 (S.C.) [Pratap Singh & Anr V/s State of M.P.]; [3] 2011 (1) Bom.C.R. (Cri) 653 : [2012 ALL MR (Cri) 1970] Shakuntalabai Khairuprasad Joshi & Anr V/s State of Maharashtra] and [4] AIR 2004 S.C. 3114(1) : [2004 ALL MR (Cri) 2502 (S.C.)] [Zahira Habibulla H. Shaikh and another V/s State of Gujrat and others]. In the 4th case reported in AIR 2004 S.C. 3114(1), the Hon'ble Apex Court has observed as follows:

"46. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Courts cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."

14. The power of Criminal Court under Section 311 of Cr.P.C. is very wide power. The Aforesaid observations of the Apex Court show that it is the duty of the trial Court to ascertain that nothing relevant is withheld from it. This provision needs to be read with Section 319 of Cr.P.C. The grievance of the widow of deceased is that the main accused who are behind the murder of her husband, are not made accused though there is material to make out the case of conspiracy against them. This lady has doubt about the fairness of investigating agency and also, the prosecuting agency. In Writ Petition No.1278/2007, Division Bench of this Court has in substance observed that in view of the nature of grievance of this lady, the trial Court can have recourse to the provisions of Section 311 and 319 of Cr.P.C. if that is felt necessary. The order shows that even right is given to this lady to intervene. Inspite of these circumstances, the prosecution does not want to examine this lady as a witness. If this lady wants to give some evidence, in view of the nature of her grievance, opportunity needs to be given to her, to have her words by way of evidence on record. Whether she can be believed or not is to be decided by the Court. It cannot be said that this lady will destroy the case of prosecution.

15. If the orders made by Sessions Court are considered, it can be said that the only order which can be said as order against the prosecution is granting permission to the lady to give evidence. This permission is granted by using the power under Section 311 of Cr.P.C. There was virtually no reason for C.B.I. to challenge the other two orders. The provisions of Section 172 (2) of Cr.P.C. also gives power to the Criminal Court to call the case diary. The trial Court has the power to call the case diaries of all the investigating agencies which had done some investigation in the case. If the material collected during investigation appears relevant to the trial Court, the trial Court can have recourse to the provisions of Sections 311 and 319 of Cr.P.C. It was submitted for C.B.I. that only some part of Call Details Record was handed over by C.I.D. to them and so it is not in a position to produce the record as directed by Sessions Court. Such submission could have been made before Sessions Court and C.B.I. could have shown the documents like charge report under which the papers of previous investigation and the property collected by previous investigating agency were handed over to C.B.I. In this regard also, there are some observations made by Division Bench of this Court in aforesaid proceedings. If the trial Court wants to go through the record to ascertain the truth, the investigating agency cannot prevent the trial Court from going through the record by giving reason that they have not produced such record alongwith the charge sheet and they do not want to rely on such record. If the investigating agency or the prosecution is allowed to take such defence, the very purpose behind Section 172 (2), 311 and 319 of Cr.P.C. will be defeated. So such defence cannot be allowed.

16. Advocate Shri M.A.Tandale represented the accused respondent no.1, who is facing trial. It appears that the said accused has no grievance with regard to the aforesaid orders made by Sessions Court.

17. In view of the circumstances of the present case, this Court holds that there are no merits in both the proceedings and no interference is possible in the orders made by Sessions Court. In the result, both the applications stand rejected.

18. After order was declared, the learned Senior Counsel Mr.Luthra appearing for applicants, prayed for stay, for three weeks. It appears that this Court had granted stay to the proceedings of the trial Court and the stay was there for about one year. Mr.Sapkal, learned counsel for respondent no.2 opposed to this prayer. In view of the rival contentions, stay is continued for three more weeks.

Ordered accordingly.