The Allahabad High Court while allowing the petition said that for a free and fair trial, the trial court is bound to allow the accused to furnish all relevant documents for his defence at any stage. In any matter whether civil or criminal, the defendant/accused has a right to present his defence to counter the allegations imposed against him.
A Single Bench of Justice Shiv Shanker Prasad passed this order while hearing a Criminal Revision filed by Manik Pandey.
The criminal revision has been filed for setting aside the order dated 12.07.2023 passed by the Additional Sessions Judge/ Special Judge (E.C. Act), Etah, arising out of Case under Section 8/20 of the N.D.P.S Act, Police Station Kotwali Nagar, District Etah, whereby the court below has rejected the application moved by the revisionist.
Counsel for the revisionist submitted that on 21.09.2021 an F.I.R being Case under Section 8/20 of the N.D.P.S Act has been lodged against the revisionist. After lodging of the FIR, the Investigating Officer has conducted the statutory investigation under Chapter XII Cr.P.C and after conclusion of the same, he/she submitted the charge-sheet against the accused-revisionist under Section 8/20 N.D.P.S. Act on 22.12.2021 in the Court of Additional Sessions Judge/Fast Track Court II, Etah.
Revisionist applied for bail before the Court which was rejected by the Court vide order dated 10.06.2022. After that he moved a second bail application before the Court which too has been dismissed by the Court.
It is further submitted that trial is going on against the revisionist and the father of the revisionist was examined as defence witness. On 01.07.2023 he made an application for call recording of the police personnels, who have raided the house of the revisionist under the Information Technology Act and the said mobile and its chips should be taken on record.
The order dated 07.07.2023, the trial court accepted the said application and directed that the Samsung mobile and its chips should be kept in the file after properly making seal and stamp.
After that on 11.07.2023 the revisionist moved a second application being Application and requested that the voice, which has been recorded in the mobile, belonging to certain police personnels, should be summoned for voice sample and their voice sample should be taken and sent for F.S.L report. The said application along with other applications have been rejected by the trial judge by common order dated 12.07.2023. Hence the criminal revision under Sections 397/401 CrPC.
The trial court has recorded that the charge sheet against the accused was submitted by the Investigating Officer on 22.12.2021 against the accused under Section 8/20 NDPS before the Additional Sessions Judge/Fast Track Court II, Etah.
In the case, four witnesses have been examined as prosecution witnesses to prove the prosecution version. On 22.05.2023, a request was made by the prosecution to finish the evidence, accordingly the opportunity of prosecution evidence was ended. The statement of the accused was recorded under section 313 Cr.P.C on 06.06.23. The defence has also adduced five witnesses to support the defence version and the file was fixed for argument. The above application has been presented by the defence at the stage of argument.
It is on the basis of the discussion and considering the facts and circumstances of the case, the trial court has come to the conclusion that all the applications including application has been made by the defence only to delay the concussion of the trial. Thus, the trial court has rejected all the applications.
From the perusal of the order impugned, the Court found that the first ground taken by the trial court for passing the order impugned is that since the defence counsel has already cross-examined the prosecution witnesses and the case is fixed for argument, therefore, such stage for adducing any evidence or requesting for taking voice sample of the Police Personnels whose conversations have been recorded by father of the revisionist in his mobile, which has already been produced during the course of trial for getting the same verified by an Expert, has elapsed, therefore, such request cannot be considered at this stage, as the same has been made only to delay the trial.
“It is a basic principle of the trial that the accused has to establish his defence by cross examination of the prosecution witness and it cannot be termed that the accused defence shall start only at the stage of defence evidence. By confronting the prosecution witness with evidence and rebutting them by cross examination is the defence of the accused at the stage of prosecution evidence also. For free and fair trial, the trial court is bound to allow the accused to furnish all relevant documents for his defence at any stage.
In any matter whether civil or criminal, the defendant/accused has a right to present his defence to counter the allegations imposed against him. The question which arises in a lot of matters is as to when does this stage of defence of an accused/ defendant begins. Is it after the plaintiff/prosecution has presented their evidence and witnesses, or does it begin the very moment the stage of evidence starts?
The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest”, the Court said while allowing the petition.
Accordingly, the order dated 12.07.2023 passed by the Additional Sessions Judge/ Special Judge (E.C Act), Etah arising out of Case under Section 8/20 of the N.D.P.S Act, Police Station Kotwali Nagar, District Etah, rejecting the revisionist’s application cannot be legally sustained and is hereby set aside.
The trial court is directed to allow the application of the revisionist being an application for taking voice samples of the Police Personnels, whose conversations are alleged to have been recorded by father of the revisionist and get the same verified or identified by an Subject Expert so that the trial may bring to its logical end.