Partly allowed

State of Karnataka v. Avinash M S

Karnataka HC20 Sept 2024CRL.P/6441/2024

Case brief

AI extract

What is this about?

Lokayukta challenged a trial court order allowing an accused in a corruption case to obtain call record details under Section 91 CrPC before framing of charges. Relying on Supreme Court precedent, the High Court held such invocation is impermissible at that stage, quashed the order, permitted a fresh application at the appropriate stage, and directed preservation of the call records.

What did the court decide?

Order dated 09.11.2023 quashed; liberty to respondent to file fresh Section 91 application; concerned court to decide per law; call record details to be preserved till then.

State of Karnataka Vs Avinash M S — Corruption | Karnataka HC (2024)

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NC: 2024:KHC:39662 CRL.P No. 6441 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 6441 OF 2024

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BETWEEN:

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STATE OF KARNATAKA BY SPL. P.P., HIGH COURT OF KARNATAKA, LOKAYUKTA POLICE, BANGALORE-560 001

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…PETITIONER

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(BY SRI. B. LETHIF, ADVOCATE) AND:

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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AVINASH M.S., S/O SURESH M.L., AGED ABOUT 33 YEARS, COMMERCIAL TAX INSPECTOR, SGSTO-192, CHAMARAJANAGAR, CHAMARAJANAGAR TALUK, C/O RATHNA H.S., HETHAGOWDANAHALLI, ARAKALAGUDU, HASSAN-573 102.

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MOHAMMED THOUSIF, S/O MOHAMMED SARDAR, AGED ABOUT 34 YEARS, R/AT NAGAVALLI VILLAGE, CHAMARAJANAGARA TALUK, AND DISTRICT-571 342.

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…RESPONDENTS

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(BY SRI. AVINASH M.S., PARTY-IN-PERSON FOR R1)

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NC: 2024:KHC:39662 CRL.P No. 6441 of 2024

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THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO SET ASIDE THE ORDER DATED 09.11.2023 PASSED BY PRL. DIST. AND SESSION JUDGE, CHAMARAJANAGARA IN ACB P.S., CR.NO.6/2021 FOR THE OFFENCE P/U/S 7(a) OF P.C. ACT ON A APPLICATION FILED U/S 91 OF CR.P.C.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioner - Karnataka Lokayukta is knocking at the doors of this Court calling in question an order dated

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09.11.2023 passed by Principal District and Sessions Judge, Chamarajanagara in ACB PS Crime No.6/2021 on an application filed by the respondent under Section 91 of Cr.P.C. permitting production of call record details as was sought for in the application by the respondent.

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Heard the learned counsel Sri. B. Latif appearing for petitioner and Sri. Avinash M.S., party -inperson/respondent No.1.

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NC: 2024:KHC:39662 CRL.P No. 6441 of 2024

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Sans details facts germane are as follows:

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The respondent gets embroiled in a Crime in Crime

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No. 6/2021 for offence punishable under Section 7A of Prevention of Corruption Act, 1988 (P.C. Act for short). The Lokayukta police conduct investigation and file a charge sheet.

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The issue in lis does not concern the merit of the matter before the concerned Court. The respondent files an application under Section 91 of Code of Criminal Procedure, 1973 (Cr.P.C. for short) seeking certain documents to be produced prior to the charges being framed before the concerned Court. The documents that were sought for were the call record details inter - alia . The Lokayukta files its objections on 09.11.2023 and the concerned Court passes an order on the same day allowing the application filed by the respondent permitting production of those records. The Lokayukta after about six months knocks at the doors of this Court contending that the call record details would have been destroyed as the

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NC: 2024:KHC:39662 CRL.P No. 6441 of 2024

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life of the call record details in law is only two years. The two years period would get over on 09.12.2023 and therefore, as on today, the call record details are not preserved and need not be preserved in law is the submission of the learned counsel for the petitioner.

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The learned counsel for the petitioner would further contend that the personal call details of the Investigating Officer interacting with others cannot be granted as it would breach the right to privacy.

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The respondent in person would refute the submission to contend that the order was passed on 09.11.2023, and it was well within the two years when the order was passed. The Lokayukta has preferred a petition after six months. The fault of the Lokayukta cannot be saddled upon the respondent is his submission.

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Be those submissions as they are. The stage at

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which the application under Section 91 of Cr.P.C. filed for

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NC: 2024:KHC:39662 CRL.P No. 6441 of 2024

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production of record could be entertained is no more resintegra .

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The Hon’ble Apex Court in the case of Nitya

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Dharmananda Alias K. Lenin and Another Vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda

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and Another reported in (2018) 2 SCC 93 has held as

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follows:

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"5. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the charge-sheet, has crucial bearing on the issue of framing of charge.

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6 . In Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415] , it was observed : (SCC pp. 579-80, para 25)

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“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

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NC: 2024:KHC:39662 CRL.P No. 6441 of 2024

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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.”

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7. In Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] a Bench of five Judges observed : (SCC pp. 115-16, para 19)

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“19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.”

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8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the chargesheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if

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such document is not a part of the charge-sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge.

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9. Accordingly, the view to the contrary in the impugned [Gopal Sheelum Reddy v. State of Karnataka, 2016 SCC OnLine Kar 8449] judgment cannot be sustained and is set aside. The trial court may now proceed to deal with the issue of framing of charge in the light of the observations made hereinabove and also to proceed with the matter expeditiously in accordance with law. The parties are directed to appear before the trial court for further proceedings on Monday, 12-22018."

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In that light, once the charges are framed and

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the trial commences, the right of the accused to file an application under Section 91 of Cr.P.C. seeking production of records would spring and at the present stage, charges are yet to be framed and trial is yet to commence. In that light, reserving liberty to the respondent to file the very application under Section 91 of Cr.P.C., the petition could be disposed.

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The issue would be whether the call record details as was directed by the concerned Court is to be preserved or not. The order is passed within two years and the call record details would have its life for two years in

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law. Therefore, the Lokayukta is obliged to preserve the

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call record details as they have preferred petition after six months i.e., only on 14.06.2024. The learned counsel Sri.B. Latif would submit that the call record details are preserved and would be till further orders from the concerned Court.

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In the light of what is aforesaid, the following:

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ORDER

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(i) The Criminal Petition is allowed in part.

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(ii) The order dated 09.11.2023 passed by Principal District and Sessions Judge, Chamarajanagara in ACB PS. Crime No.6/2021 is quashed.

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(iii) Respondent is at liberty to file application under Section 91 of Cr.P.C. seeking the very relief as is sought in the subject application.

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(iv) In the event respondent would file such application at the relevant stage, the concerned Court shall pass necessary orders in accordance with law, thereon.

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(v) Till such time, the call record details shall be preserved.

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All contentions of both the parties remain open.

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Sd/(M.NAGAPRASANNA)

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JUDGE

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