Mohd Imran v. State of U.P. and Another

Court No. - 64

Case :- CRIMINAL REVISION No. - 2913 of 2024

Revisionist :- Mohd Imran Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Chandra Kant Bharadwaj,Upendra Upadhyay Counsel for Opposite Party :- G.A.

Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Vinay Saran, learned Senior Advocate assisted by Sri Chandra Kant Bharadwaj and Sri Upendra Upadhyay, learned counsels for the revisionist, Sri Ajay Singh, learned A.G.A-I for the State and perused the record.

¶3The present revision has been filed by the revisionist with the prayer to allow this revision and set aside the impugned order dated 25.4.2024 passed by Addl. Sessions Judge/Special Judge (M.P./M.L.A), Prayagraj in S.T. No.408 of 2019 (State of U.P. Vs. Talib @ S.P. City and others) arising out of Case Crime No.30 of 2019, under sections 147, 148, 149, 323, 504, 394, 342, 364, 120-B IPC, P.S. Dhoomanganj, District Prayagraj pending in the court of Addl. Sessions Judge/Special Judge (M.P./M.L.A), Prayagraj and further to direct the trial court to allow the application under Section 91 Cr.P.C. filed by the revisionist and summon those documents including CDR location for the just and fair trial of the case and further with the prayer to stay the further proceedings of aforesaid case during the pendency of the present criminal revision before this Court.

¶4The facts of the case are that the revisionist is an accused in a case in which a FIR was lodged on 8.1.2019 under Sections 147, 148, 149, 323, 504, 506, 394, 342, 364, 120-B IPC and 7 Crl. Law (Amendment) Act, 1932 against the applicant and 14 other persons. The applicant filed an anticipatory bail application before this Court being Crl. Misc. Anticipatory Bail Application No.3315 of 2020 (Imran Vs. State of U.P.) which was rejected vide order dated 4.11.2020 by a coordinate Bench of this Court. The said order reads as under:- "1. Heard Mr. Upendra Upadhyay along with Mr. Abou Sofian Usmani and Mr. Chandra Kant Bharadwaj, learned counsel for the applicant, Sri Omar Zamin, learned counsel for informant no. 1 and Sri Sanjay Kumar Singh, learned AGA and perused the material on record.

¶2This anticipatory bail application has been filed on behalf of the applicant - Imran, seeking anticipatory bail in Case Crime No. 30 of 2019, under Sections - 147, 148, 149, 323, 504, 506, 394, 342, 364, 120-B I.P.C. & Section 7 Criminal Law (Amendment) Act, Police Station - Dhoomanganj, District - Allahabad, during the pendency of trial.

¶3A short counter affidavit has been filed by the State today. Learned counsel for the applicant do not propose to file any rejoinder affidavit. They prayed that the matter be heard today.

¶4Upon hearing learned counsel for the parties, it transpires that most serious allegations have been made in the FIR of unauthorised entry having been allowed in a district jail and of commission of serious cognizable offence inside the cell of a jail inmate. The allegations are to the effect that the victim had been abducted at Prayagraj and taken to District Jail, Deoria where they were assaulted inside a jail cell on 22.11.2018. Similar allegation appears to have been made in another case with respect to incident dated 26.12.2018. However, those are not subject matter of the present FIR.

¶5By means of the short counter affidavit, learned AGA has placed on record the charge sheet submitted against various jail officials and punishment order passed upon completion of the enquiry, with respect to the incidents that took place on

22.11.2018 and 22.6.2018.

¶6Further, a perusal of the documents appended to the short counter affidavit reveals that during the course of the aforesaid enquiry, video recordings of the Closed Circuit T.V. (CCTV in short) Camera installed at the jail premises were examined. While a categorical allegation appears to have been made with respect to unauthorised entry of 13 persons on 26.12.2018, a reference has been made to unauthorised entry of 5-6 persons in the incident dated 22.11.2018. However, the video recording of the C.C.T.V. Camera has not been made available to the learned AGA. At the same time, existence of such recording has been asserted on the strength of a letter written by the Superintendent, District Jail, Deoria to the Director General (Jails), dated 24.10.2020 wherein a request was made to make available that CCTV footage on a pen-drive of District Jail, Deoria.

¶7The submissions of learned counsel for the applicant are that in the first place, the applicant had not visited the District Jail, Deoria on 22.11.2018, inasmuch as neither he signed the visitor register nor there is any video recording of his presence at that place and at that time as may require the applicant's participation or arrest in the investigation arising from the present FIR. He further submits that the applicant was in fact, busy attending a marriage ceremony at Prayagraj on

22.11.2018 with respect to which specific pleadings have been made and in support thereof certain photographs have been annexed to submit that those photographs are of the date 22.11.2018 when the applicant was present at Prayagraj. He has also submitted that if the location of the applicant's cellular phone would be checked, it would show that he was present on 22.11.2018 at Prayagraj and he never travelled to Deoria on that day.

¶8Second, it has been submitted that the FIR is wholly belated inasmuch as the incident is alleged to have taken place on 22.11.2018 whereas the FIR was first registered on 8.1.2019 i.e. after more than one month.

¶9Last, it has been submitted that whereas the FIR allegation is of 15 persons 2 CRLR No. 2913 of 2024 having carried out the act of abduction of the victim at Prayagraj and of having taken them to the district jail, Deoria, according to own case of the prosecution agency, only 5-6 persons had unauthorisedly entered the district jail, Deoria on

22.11.2018.

¶10Controverting the aforesaid submissions, Sri Sanjay Kumar Singh, learned AGA for the State, would submit that, at this stage, there is evidence in the shape of a video recording of 5-6 persons having gained unauthorised entry into the district jail, Deoria on 22.11.2018. Thus it cannot be said that the fact allegations made in the FIR are false or unfounded or that the applicant was not one of the 5-6 persons who had participated in the occurrence on 22.11.2018 at the district jail, Deoria. As to absence of the pen drive or the video recording, it has been submitted that the same had been sent to the Director General, Jails for the purpose of the earlier departmental enquiry. Upon it being returned, the same would be made available to the Investigating Officer who may now proceed in accordance with law. Keeping in mind the nature of allegations made in the FIR, it has been submitted that complete freedom may be granted to the Investigating Officer to carry out his task as the nature of allegations are most serious involving use of district jail premises to commit serious offences. Learned AGA has also pointed out that the applicant has criminal history of three cases.

¶11In short, it has been submitted that the allegations made in the FIR, are of commission of most serious offences within the jail premises by people who have earlier been accused of commission of serious and / or heinous offences. Therefore, even otherwise, the Court may not interfere in exercise of its discretion.

¶12Having heard learned counsel for the parties and having perused the record, in the first place, it cannot be denied that the FIR allegations as they stand are of most serious / grave nature. There cannot be a more heinous offence than one which is alleged to have been committed by a person lodged at a district jail facility. If the premises of a district jail facility are itself so porus and its administration so lax as may allow such jail premises to be used to commit further crime both outside and inside the jail, the members of the society would be under a serious threat and the entire social and civil structure and order would be at risk of erosion. The fact that the preliminary enquiry conducted by the departmental authority has found truth in the allegation, it commends to the Court to prima-facie believe the correctness of the allegations made in the FIR.

¶13While no conclusion is required to be drawn at this stage and none is being reached as the matter is pending investigation, yet, the Court cannot even on prima-facie basis admit a possibility at this stage that the applicant was not one of the 5-6 persons who went inside the district jail, Deoria, on 22.11.2018. Though, the CCTV recording has not been produced before this Court, at the same time, for the purposes of the present application, there is nothing to disbelieve the claim made by the State as to its existence inasmuch as, besides the letter dated 20.10.2020 written by the Jail Superintendent, District Jail, Deoria to the Director General, Jails, requesting his higher authority to return the pen-drive containing such recording, the disciplinary enquiry proceedings make a clear reference to the unauthorised entry of 5-6 persons in the jail premises on 22.11.2018. Any further observation made by this Court would risk interference in a full and fair investigation. Therefore, that issue is left to the Investigating Officer to examine thread bare.

¶14The submission of learned counsel for the applicant that the applicant had 3 CRLR No. 2913 of 2024 remained present at Prayagraj on 22.11.2018, is founded on certain photographs and pleadings & cellular phone details which again may be inquired into at the appropriate stage. In any case, by very nature of the plea, it is one of an alibi, and therefore, does not merit any consideration at this stage.

¶15Similarly the fact that only 5-6 individuals had unauthorisedly entered in district jail, Deoria is a matter that may not absolve the present applicant at this stage as, in the first place, identity of those 5-6 individual has to be ascertained by the investigating officer and thereafter their accomplices or conspirators would have to be determined. In any case, the applicant has been assigned a direct role in abduction of the victim at Prayagraj. Again, the matter being pending investigation, the Court stops short of making any further observation in that regard, but expects a thread bare investigation.

¶16The submission of the learned counsel for the applicant that the FIR is wholly belated, may not itself lead to any conclusion in favour of the applicant at any stage, as in such a case, the very nature of the allegation is so shocking to the Court that if the narration of the event made in the FIR be true, it is no surprise that the FIR came to be lodged with some delay. If a citizen is abducted and his abductors have the audacity and the means to take the abducted inside the district jail premises for the purposes of commission of serious cognizable offence, the only surprise that the Court may express is at such a citizen having found enough courage to lodge an FIR, thereafter. The courage shown would be commendable. The time taken by him to act and to lodge FIR can only be described as reasonable. However, the truthfulness of the allegation is not being commented upon at this stage as the matter is pending investigation. Yet the Court must underline and emphasise that the investigation be carried out meticulously, in the right earnest, free from any influence other than to discover the truth and no stone be left unturned to uncover it, speedily.

¶17The police owes an obligation to the laws and the society. If such offence has been committed, not only it has a chilling effect on the individual members of the society who, for their individual circumstances may not be strong enough to counter the threats posed to them by such offences and offenders but more importantly it completely undermines the authority of law and the law enforcing agencies as also justice delivery structure, created and supported by our Constitution.

¶18Accordingly, purely to secure the minimum interest of justice, certain observations have become necessary to be made even while rejecting the anticipatory bail application filed by one of the named accused persons:

(i) The SSP, Prayagraj is directed to personally ensure that the investigation is carried out strictly in accordance with law with utmost expedition, which duty the said authority is otherwise obliged to perform by very nature of his official position and also by virtue of the implied trust of the society.

(ii) The SSP Prayagraj shall personally remain cognizant of the security and safety of the first informant as also all witnesses of fact during the currency of the investigation as also till conclusion of the trial, if any. Such obligation also pre-exists on that authority.

(iii) The concerned magistrate shall remain cognizant of his jurisdiction and powers 4 CRLR No. 2913 of 2024 to ensure that a fair and proper investigation is conducted in the case, keeping in mind the law laid down in that regard by the Supreme Court in Sakiri Vasu Vs. State of U.P. & Ors., (2008) 2 SCC 409.

(iv) For the purposes of securing a fair and proper investigation, the learned magistrate may also remain vigilant as to the safety and security of the first informant and the witnesses during the investigation and he may pass such order in that regard, as may appear necessary if the SSP Prayagraj fails to discharge the trust placed on him, by virtue of the earlier directions issued above.

¶19The Court is conscious that, in normal circumstances, such observations and directions, as have been made above, would be unwarranted and may be even out of place, to be made while rejecting an anticipatory bail application. However, the Court cannot turn a blind eye to the allegations made in the FIR which, if true, would fall in the nature of most undesirable and impermissible nature of organised crime, as narrated in the FIR. In any case, the directions and observations made are reiteration of the settled position of law.

¶20In view of the above, the anticipatory application is rejected. The interim order and protection granted earlier is specifically vacated. Let a copy of this order be made available to the learned AGA for being communicated to the SSP, Prayagraj. Also, the Registrar General of the Court may communicate a copy of this order to the Chief Judicial Magistrate, Prayagraj for being marked and communicated to the concerned magistrate for effective compliance.".

¶5The matter was investigated and a charge sheet was submitted against the revisionist and other accused persons on which the court concerned took cognizance and proceeded with trial.

¶6The revisionist filed an application dated 20.4.2024 under Section 91 Cr.P.C. being Application No. 89-Kha before the trial court with the prayer that the CDR of the phone of the applicant and the pen drive of C.C.T.V footage of gate no.1 and 2 of District Jail, Deoria dated 22.11.2018 be summoned. The grounds taken for the same are that from the CDR, which are part of case-diary of the applicant and the first informant Mohd. Zaid Khalid, Umaish Ahmad and Abhishek Pandey, it would transpire that he has with malafide intentions been implicated in the present matter. The location of the revisionist has intentionally been not shown. Further for the C.C.T.V. footage, it is pleaded that the same was sent through a special messenger to the jail headquarters as such the same is important and relevant and be summoned. The said application of the revisionist stood rejected vide order dated 25.4.2024 passed by Additional Sessions Judge/Special Judge, M.P/M.L.A, Prayagraj. The said order is impugned herein with a further prayer to direct the trial court to allow the application under Section 91 Cr.P.C. for just and fair trial.

¶7Learned counsel for the revisionist submitted that the order impugned is bad in the eyes of law inasmuch as the same is cryptic and has not adverted to the facts of the matter. It is submitted that there is no finding in the order 5 CRLR No. 2913 of 2024 impugned as to why the same is being passed and why the application under Section 91 Cr.P.C. of the revisionist is being rejected. Learned counsel for the revisionist has relied upon the judgement of the Apex Court in the case of Nitya Dharmananda @ K. Lenin Vs. Sri Gopal Sheelum Reddy : AIR 2017 SC 5846 and while placing para 9 of the same has submitted that the court is not barred from summoning the said evidence as the same are of sterling quality. Learned counsel for the revisionist has further relied upon the judgement of the Apex Court in the case of Varsha Garg Vs. The State of Madhya Pradesh and others : 2022 0 AIR (SC) 3707. Para 33 of the same has been placed and it is submitted that the court has held that where it considers the production of the such document or things necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Cr.P.C., the court should summon the same. It is submitted that the prayer made in the application under Section 91 Cr.P.C. of the applicant is necessary and desirable also to reach to a fair trial. Learned counsel for the revisionist has further relied upon the judgement of a single judge of High Court of Punjab and Haryana at Chandigarh in the case of Paramjit Kaur Vs. State of Haryana : that the court has considered the fact of summoning of CDR in the said matter for the purpose of preserving the call details and tower location details which was necessary for ensuring free and fair investigation and trial. It is submitted that looking to the said judgements, the present criminal revision be allowed and the prayers made therein be granted.

¶8Per contra, learned counsel for the State opposed the arguments and the present revision and submitted that the order impugned of the trial court is a well reasoned and speaking order and also refers to the judgement and law on the issue as held by the Apex Court. It is submitted that the defence of the accused cannot be taken at any stage. It is submitted that the stage of discharge is over and as of now the perusal of the order impugned goes to show that the statement of P.W.2 Umaish Ahmad has been recorded and as such the same is not the proper stage for raising the defence of the accused. It is further submitted that the stage of Section 91 Cr.P.C. is not a general stage to be invoked at any time. The prayer for summoning the document by the accused under Section 91 Cr.P.C. can only be done at the stage of defence which has to be after the stage of 207 Cr.P.C., 227 Cr.P.C. and 313 Cr.P.C. It is submitted that there is no illegality and irregularity in the order impugned. The present revision be dismissed.

¶9After having heard learned counsel for the parties and perusing the records, it is apparent that the revisionist is an accused facing trial. The stage in the trial as of now is that the statement of P.W.2 Umaish Ahmad has been recorded as is stated in the order impugned dated 25.4.2024. The revisionist has moved an application under Section 91 Cr.P.C. dated

20.4.2024 with the prayer to summon the CDR with location and pen drive containing the CCTV footage of the two gates of District Jail, Deoria of

22.11.2018. The said application has been rejected by the trial court vide order dated 25.4.2024 which is impugned herein. The stage in the present 6 CRLR No. 2913 of 2024 matter has even surpassed the stage of discharge and framing of charge. At the present time the evidence of the prosecution is being recorded. The application under Section 91 Cr.P.C. has been moved at this stage. The contents of the application go to show that the accused-revisionist by pleading that the CDR's be summoned, wants to show his location and that of Mohd. Zaid Khalid, Umaish and Abhishek Pandey. Further from the pen drive recording of C.C.T.V. footage of the gate of the jail, there is nothing pleaded as to why the same is needed and what has to be shown from it. Para 9 and 10 of the said application relate to the details of the pen-drive and C.C.T.V. footage but they do not in any manner show as to what the revisionist wants to show from it. Even by not clearly disclosing it, the same can be presumed to be having something in it which he would consider would benefit him. The prayer for summoning in the application under Section 91 Cr.P.C. of the said two things is in the nature of defence of the accused-revisionist. The law with regards to the same is trite. In the case of State of Orissa v. Debendra Nath Padhi : (2005) 1 SCC 568 it has been held by the Apex Court that entitlement of the accused to seek order under Section 91 would ordinarily not come till the stage of defence. It has been held as under: "25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code". The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof." (emphasis supplied)

¶10Looking to the facts and circumstances of the case and also the law on the subject, an accused cannot raise his defence at any stage of the trial as per his sweet-will. The same has to be in consonance with the prescribed 7 CRLR No. 2913 of 2024 procedure and law for trial. In view of the same, no ground exists to entertain the present revision. The revision has no merits. The same is, accordingly, rejected.

¶11The office to communicate this order to the trial court concerned within two weeks.

(Samit Gopal, J.) Order Date :- 4.10.2024 Gaurav Kuls 8 CRLR No. 2913 of 2024 High Court of Judicature at Allahabad