Order in Criminal Petition No. 938 of 2016, High Court of Karnataka

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF JULY 2016

BEFORE

THE HON'BLE MR.JUSTICE H.BILLAPPA

CRIMINAL PETITION No.938/2016

BETWEEN:

Sri.Gopal Sheelum Reddy, Also known as Nithya Hhaktananda, Aged about 54 years, Presently R/o.Nithyananda Dhyanapeeta, Allugopanahalli village, Bidadi Hobli, Ramanagar Tq., Ramanagar Dist. ... PETITIONER

(By Sri.C.V.Nagesh, Sr.Counsel for Sri.Raghavendra K. Adv.)

AND:

State of Karnataka By the Station House Officer, Bidadi Police Station, Ramanagara Dist. ... RESPONDENT

AND:

Sri.Nithya Dharmananda @ K.Lenin Aged about 40 years, S/o.Late Sri.L.aruppanan, Old No.94, Odaiadu, Veppampoondi village, Gangavalli Tq.,

This Certified copy contains ..... .... Pages And Copying clarges of ₹. 72 Racaived

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Salem Dist., Tamil Nadu. ... IMPLEADING APPLICANT-1 Ms.Aarthi Rao, Major in age, D/o.Shri Sethumadhavan, PHA Grace Garden Apartments, Hennur Main Road, Bengaluru -560 043. .. IMPLEADING APPLICANT-2

(Sri.P.M.Nawaz, SPP for R-1; Sri.M.S.Rajendra Prasad, Sr. Counsel and Smt.T.S.Rajarajeshwari, Advocates. for impleading applicants) ********** This Criminal Petition is filed u/s 482 Cr.P.C. to sct aside the order dated 28.1.2016 passed in S.C.No.86/2014 presently pending on the file of III Addl. Dist. & S.J., Ramanagara on the application filed by the pctitioner under S.91 of Cr.P.C. and further be pleased to grant the said application in its totality.

This Criminal Petition coming on for orders this day, the Court made the following:

ORDER

The petitioner who is accused No.2 in S.C.86/2014 on

the file of III Addl. Dist. & Sessions Judge, Ramanagara, has

filcd this petition challenging the order dated 28.1.2016

passed by the Trial court rejecting the application filcd by the

petitioner and three other accused to summon the statements

of witnesses and documents mentioncd in the application.

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. By the impugned order, trial court has rejected the application filed by the petitioner and three other accused under Sec.91 of Cr.P.C. praying to summon the documents and statement of witnesses mentioned in the application. 3. Aggrieved by that, the petitioner has filed this criminal petition.

4. Briefly stated the facts are: The petitioner and four other accused have been charge-shected for the offences punishable under Secs.376, 377, 295-A, 420, 506 R/w Sec.120-B of IPC. At the stage of hearing before framing of the charges, the petitioner and three other accused have filed application under Sec.91 of Cr.P.C. praying to summon statements of witnesses and somc documents collected in the course of investigation. The Trial court by its order dated 28.1.2016 has rejected the application.

5. Aggrieved by that, petitioner has filed this criminal petition.

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6. The applicants Sri.Nitya Dharmananda @ K.Lenin and Ms.Aarthi Rao have filed I.A.2/16 praying to permit them to come on record and contest the matter.

7. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the statements of witnesses and documents sought to be summoned were collected during the course of investigation and it was part of the investigation. Therefore, the trial court was not justificd in rejccting the application. Further he submitted that petitioner or the other accused are not seeking to produce the defence documents and they are seeking to summon the statements of witnesses and documents which were collected during the course of investigation. If the statements and documents are not summoned, it would seriously affect the rights of the accused persons. Further he submitted that the trial court has rejected the application mainly relying upon the decision of the Hon'ble Supreme Court in the case of Debendra Nath Padhi's case. The Trial court has mis-read the judgment.

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The law laid down in the said case is that the defence cannot produce any documents seeking discharge under Sec.221 of Cr.P.C. In the present case, the petitioner and other accused are not seeking to produce any defence documents. Thcy are rcquesting the court to summon statements and documents which were collected during the course of investigation. It is the duty of the investigating officer to bring all the material collected during investigation on record. In the present case, the statements of witnesses recorded and documents collected in the course of investigation arc not part of the charge-sheet. Further, though ordinarily accused persons cannot produce the defence documents but in rare cases if the documents are undisputed such documents can be produced for consideration of the court even by the accused also at the stage of framing of charges. The Trial court has failed to consider that non-production of the material collected during the course of investigation wantonly and without any justification has seriously affected the rights of

BENG.LUA

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the accused. In support of his submission, he placed reliance

on the following decisions:

1. A.I.R. 2005 S.C. page 359 2. A.I.R. 2009 S.C. page 1013 3. (1) 2007 D.M.C. page 793 4. 2016(2) AKR Page 177

8. The learned SPP submitted that the impugned order does not call for interference. At this stage, the application is mis-conceived and not maintainable. Further he submitted that item Nos.3 & 4 mentioned in the order at para 8 are already furnished. Notes and orders sought by the petitioner are not there. Statement of Krishna Shama Rao is not at all recorded. Further he submitted that Ranjita is not cited as a witness in the charge-sheet and therefore, her statement is not part of the charge-shect. Further he submitted under Sec.207 of Cr.P.C., the statement of the persons whom prosecution proposes to examine as witnesses only need to be furnished. Accordingly, along with the charge-sheet statement of all the witnesses whom the

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prosecution proposes to examinc have been furnished. Therefore, the application was mis-conceived and not maintainable. Further he submitted that out of 48 witnesses, the statements of 32 witnesses is parl of the case diary and statements of 10 witnesses is part of the charge-sheet i.e., CWs .- 1, 16, 36 to 43. He also submitted that in so far as the remaining 38 witncsses, statements of 32 witnesses is part of the case diary and six witnesses were enquired and their statements were not recorded. Further submitted that the statement of Ranjitha was recorded subsequent to 11.6.2010 and it is part of the case diary. The affidavit of investigating officer Sri.K.N.Yogappa has been filed. Regarding 13 statements requested by the petitioners under the Right to Information Act, the learned SPP submitted that the statements of Sri.Nithya Atmaprabhananda, Ma Nithya Bhaktikananda (Valli R), Ma Nithya Dayananda Mayi (Jyothi Sheclum), Ma Nithya Gopikananda (Umadevi), Ma Nithya Supriyananda, Sri.Nithya Yogananda & Sri.Nithya Hamsananda were not recorded. Statements of Ma Nithya ODR KANA

=== Page 8 === Shantananda (Suman) and Ma Nithya Vimalananda (Pararneshwari) is part of the charge-sheet and they are CWs- 37 & 39. Further he submitted that the statements of Sri.Nithya Atmaprabhananda, Dr.Sri.Nithya Pranananda, Sri.Nithya Yogatmananda, Sri.Nithyeshwarananda & Ma Nithya Achalananda are recorded but not part of the charge- sheet.

9. Placing reliance on the dccision of the Hon'ble Supreme Court reported in AIR 2005 SC page 359 in the case of State of Orissa v. Debendra Nath Padhi, the learned SPP submitted that Section 91 cannot be invoked by the accused to compel production of document at this stage to show his innocence.

10. Further placing reliance on the decision of the Hon'ble Supreme Court reported in 2014 Cri.LJ 1444 in the case of State of Tamilnadu by Ins. of Police Vigilance and Anti Corruption vs. N.Suresh Rajan and Ors., the learned SPP submitted that at the stage of consideration of framing

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the charges, the Court has to procced with an assumption that material produced by the prosecution is truc and evaluate the said material to find out whether prima-facie case is made out or not.

11. Further placing reliance on the decision of the Madras High Court reported in 2004 Cri.LJ 1623 in the case of M.Sathiamoorthi Ds. State rep, by SPE/CBI/ACB, the learned SPP submitted that under Section 91, the accused is neither entitled to seek for production of documents either by the Court or by other side nor it is incumbent on the part of the Trial Court to summon the documents. He, therefore, submitted that the impugned order does not call for interferencc. 12. The learned counsel for the applicant No.1 submitted that applicant No.1 is the complainant at whose instance the proceedings are initiated, and applicant No.2 is the victim. Their presence is required for effective adjudication of the matter. In Cri.P.No.4090/2011, the

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applicant No.1 was made party to the proceedings. Further, the persons whose statements are recorded and who are not cited as witnesses cannot be summoned at the instance of the accused. It is the domain of the prosecution to produce the documents in support of its case as we are working in inquisitorial system. He, therefore, submitted that the applicants may be permitted to come on record and contest the matter

13. The lcarned counsel for the applicant No.2 adopted the arguments of the lcarned counsel for the applicant No.1.

14. In reply, the learned counsel for the petitioner referring to Section 24(1) and 24(8) of Cr.P.C subrnitted that it is the Public Prosecutor who is in-charge of the case and the case needs to be conducted by the State represented by the Public Prosecutor under Section 24(8) of Cr.P.C. The victim may be permitted to engage the services of a counsel to assist the prosecution. The victim or any other person if permitted

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can only assist the prosecution and thy cannot directly participate in the proceedings. The application filed by the victim in Crl.P.4582/12 was rejected by this Court. It is the discretion of the Court to allow or not to allow. In the present casc, the prosecution is effectively contesting the matter and the matter relates to summoning of the documents and statements collected in the course of investigation and therefore, the presence of the applicants is not required and they cannot be heard. Therefore, the application may be rejected.

15. I have carefully considered the submissions made by the learned counsel for the parties.

16. The points that arise for my consideration are: i. Whether I.A.No.2/2016 filed by the applicants need to be allowed? Whether the impugned order calls for interference?

17. Point No.1: I.A.No.2 has bcen filcd by the applicants claiming that applicant No.1 is the complainant and applicant No.2 is

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victim and their presence is required for effective adjudication of the matter. They need to be heard in the matter.

18 Section 24 of Cr.P.C. provides for appointment of a Public Prosecutor or Addl. Public Prosecutor for conducting the case in any prosecution, appeal or other proceedings on behalf of the Government. Scction 24 (8) provides that the Central or State Governments may appoint for any case or class of case, a person who has been in practice as an advocate, as a Spl.Public Prosecutor. Proviso to Section 24(8) of Cr.P.C provides that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.

19. It is clear from Section 24(1) and 24(8) that it is the Public Prosecutor who should conduct the prosecution. No doubt, the victim may be permitted to engage an advocale to assist the Prosecutor. In fact, applicant No.2 had filed an application in Crl.P.No.4582/2012. It has bcen rejected by this Court. It is stated, the applicants have filed application

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before the trial Court and it is still pending. Further, the application filed by the applicant No.2 has been rejected earlier. The present case relate to summoning of the documents and statements collected during the course of investigation, The prosccution is effectively contesting the matter. Thereforc, it is unnecessary to permit the applicants to come on record. Accordingly, I.A.No.2/2016 is hereby rejected.

20. Point No.2:

The petitioner and three other accused have filed application

under Section 91 of Cr.P.C. praying to summon statements of

witnesses and also documents collected during the course of

investigation. Briefly, the documents sought to be summoned

are;

i. Statement of one Ranjitha. ii. Statement of 48 witnesses recorded prior to 11.06.2010. Medical report of Aarathi Rao iv. Medical examination report of accused Nos.1 & 2. v. Notes and orders vi. Statement of Dr.Krishna Shama Rao.

YTALURU

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vii. Potency test report of 15t accused.

21. However, the leamed counsel for the petitioner submitted that he confines only to the following statcments and documents:

i. Statement of Ranjitha; Statement of 48 witniesses recorded prior to 11.06.2010 The medical rccords of Aarthi Rao for the period from 2004 to 2010 maintained at University of Michigan Hospitals, USA; iv Medical examination report of accused No.1 done at Fortis hospital, New Delhi; and V. E-mail correspondence between Aarthi Rao and Vinay Bharadwaj.

22. It was contended by the learned SPP that the application is misconceived and not maintainable. It is only to protract the proceedings such an application has been filed. He placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 2005 SC page 359.

23. As against this, the learned counsel for the petitioner contended that the trial Court has misread the

PTAKA

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judgment. The law laid down in Debendra Nath Padhi's case is that the accused cannot produce defence documents at the stage of framing charges to prove his defence. It has nothing to do with summoning of the documents from the investigating agency which are collected during the course of investigation. He placcd reliance on the decision of this Court reported in 2016 (2) AKR 177 Mrs.Sharada Urs u. Bharthi Urs Rani and others to contend that once statement of witnesses is collected during the course of investigation that should be produced before the Court in order to provide an opportunity to the accused, if ncccssary to make use of the material, otherwise, it is denying fair trial to the accused.

24. He also placed reliance on the decision of the Delhi High Court in the case of Shakuntala vs. The State of Dethi reported in 1 (2007) DMC 793 and submitted that fair investigation is the right of the accused and it can be exercised by the accused at the time of charge and accused can insist upon the Court to summon the material collected

ANGALURU

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by the Investigating Officer, but not made part of the charge shect. In the present case, the accused is not producing any documents in support of his defence, but is requesting the Court to summon the statements and documents collected during the course of investigation.

25. Further, placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 2009 SC 1013 in the case of Rukmini Narvekar v. Vijaya Satardekar & Ors., the learned counsel for the petitioner submitted that even while framing charges also if the material cstablished that the whole prosecution case was absurd or totally concocted, the accused can produce defence documents. Therefore, in the present case, the trial Court was not justified in rejecting the application.

26. In State of Orissa v. Debenara Nath Padhi reported in AIR 2005 SC 359(1), the Hon'ble Supreme Court has held that Section 91 of Cr.P.C. does not confer any right on the accused to produce document in his possession to

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prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. It is clear what is considered by the Hon'ble Supreme Court in Debendra Nath Padhi's case is whether the accused invoking Section 91 can produce documents in his possession to prove his defence. In that context the Hon'ble Supreme Court has held that the accused cannot produce any documents in his posscssion to prove his defence at the time of framing charges. But, in the present case, the circumstances are totally different. In the course of investigation the statement of witnesses have been recorded and documents have been collected, but they are not produced with the charge sheet. Therefore, the petitioner is seeking to produce statements and documents collected during the course of investigation.

27. It is relevant to refer to the Division Bench decision of this Court reported in 2016 (2) AKR 177 in the

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case of Mrs.Sharada Urs v. Bharthi Urs Rani and others, at para 112, it is observed as follows:

"It is the fundamental principle of criminal jurisprudence that whether it is helpful or not helpful to the prosecution, but once the statement of witnesses collected during the investigation, that should be produced before the Court in order to provide opportunity to the accused if necessary to make use of such material .*

28. Similarly, in the decision reported in 1 (2007) DMC 793 the Delhi High Court has observed as follows at para 4

"It is settled law that fair and just invesligation is a hallmark of any investigation. It is not the duty of the Investigating Officer to strengthen the case of prosecution by withholding the evidence collected by him. If an Investigating Officer withholds the evidence collected by him the accused has a right to rely upon that evidence and tell the Court to take that evidence into account while framing the charges. The Court while framing charges may not take into account the defense of the accused or the documents in custody

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of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the Court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. If it is hmught to the notice of the Court by the accused that some of the evidence or documents have been withheld by the Investigating Officer or the prosecution deliberately, so that truth does not come out before the Court, the Court, before framing of charge can order the Investigating Officer to place the entire investigation before it and ask him to produce case diaries. Fair investigation is the right of the accused and this right cun be exercised by the accused at the time of charge and the accused can insist upon the Court to consider the evidence collected by the Investigating Officer but not made part of the charge-sheet. The cuidence relied upon by the accused is not produced by the accused from his custody but it is the evidence collected by the Investigating Officer."

29. It is clear from the above decisions that the material collected in the course of investigation need to be produced by the prosecution. In the present case, the

SENGAURO

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prosecution has not produced statements and documents collected in the course of investigation. Therefore, the petitioncr and other accused have prayed to summon the statements and documents collected in the course of investigation.

30. The learned SPP has filed affidavit of the Investigating Officer who was in-charge of the investigation during that period, It is stated in the affidavit that during the course of investigation, he recorded the statement of 48 witncsscs as on 11.06.2010 including the further statement of the complainant. Out of 48 witnesses, the statement of 10 witnesses is already part of the charge sheet i.e., C.W.1, C.W.16, C.Ws.36 to 43, Further, insofar as the remaining 38 witnesses are concerned, the statement of 32 witnesses is part of the case diary. Ilowever, it is statcd, six witnesses were inquired to know about the whereabouts of the accused and their statements were not recorded. Further, it is stated that statement of Ranjitha was recorded subsequent to 11.06.2010 and it is part of the case diary. It is clear, the

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Investigating Officcr has admitted that statement of 42 witnesses were recorded. Insofar as six witnesses are concerned, their statements were not recorded. The learned counsel for the petitioner docs not dispute that statements of 10 witnesses i.e., C.W.1, C.W.16, C.Ws.36 to 43 arc part of the charge sheet. The statement of 32 witnesses recorded during the course of investigation are available. Insofar as the statement of Ranjitha is concerned, it is stated, her statement was recorded subsequent to 11.06.2010 and it is not produced along with the charge sheet. Insofar as the medical records of Aarathi Rao for the period from 2004 to 2010 pertaining to her treatment at University of Michigan Hospitals, USA, it is stated in the statement of objections filed before the trial Court that Investigating Officer has not collected the documents but somebody from the accused side to help the accused produced some documents and as they were not related to the proceedings they were not considered. As the documents came from the accused side, copies of the documents were not furnished. It is clear, in the course of

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investigation some documents have been produced. It is not clear, what are those documents and who produced them. It can be ascertained from the casc diary or other investigation material.

31. It is clear that 32 statements recorded prior to 11.06.2010 are available. Stalement of Ranjitha is also available. It is not clear whether statement of six persons was recorded or not. It is also not clear what was the medical report of Aarathi Rao, the medical report of accused No.1 and e-mail correspondence. Thereforc, the trial Court can be directed to summon the statement of 32 witnesses which were recorded prior to 11.06.2010 and the statement of Ranjitha. Insofar as the statement of six witnesses, the medical records of Aarathi Rao, medical records of accused No.1 and e-mail correspondence between Aarathi Rao and Bharadwaj is concerned, it is for the trial Court to look into the case diary and other investigation material. If it is found

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that those documents arc availablc, the trial Court can summon and consider them.

32. Accordingly, the criminal petition is allowed and the order dated 28.01.2016 passed by the trial Court on the application filed by the petitioner and three other accused is hereby set-aside. Further, it is ordered as follows:

i. The trial Court is directed to summon statements of 32 witnesses, which are available with the Invcstigating Officer and the statement of Kanjitha. ii. Insofar as the statement of six witnesses, medical records of Aarathi Rao, medical records of accused No.1 and e-mail correspondence between Aarathi Rao and Vinay Bharadwaj is concerned, the trial Court shall look into the case diary and investigation material and if it is found that those documents are available, the same can be sccured and considered.

At this stage, the learned SPP requested to return the statement of 32 witnesses produced before this Court stating that they are going to be summoned by the trial Court.

. SONGAIURU

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Accordingly, the learned SPP is permitted to take back the statement of 32 witnesses by furnishing Xerox copies of thosc statements.

Sd/- JUDGE

TRUE COPY' R*/BSR0 Seetion Offider High Court of Kumatuka Bengaluru-5o0 001

RGNGALUR

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