Allowed

Dillip Kumar Agarwal @ Agarwalla v. State of Odisha

Orissa HC30 Nov 2021CRLREV/471/2021

Case brief

AI extract

What is this about?

The High Court of Orissa allowed the criminal revision, holding that the rejection of a Section 91 Cr.P.C. application due to lack of prosecution initiation was fallible. The court directed the trial court to produce specific medical documents essential for the case, ensuring accused cross-examination rights and adhering to Supreme Court timelines.

What did the court decide?

Impugned order set aside; direction to trial court to direct production of documents under Section 91 Cr.P.C. and ensure accused cross-examination.

Dillip Kumar Agarwal @ Agarwalla Vs State of… — Civil Procedure and Limitation | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.471 of 2021

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Dillip Kumar Agarwal @ Agarwalla …. Petitioner

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Mr.Bidesh Ranjan Behera, Advocate

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Versus

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1.State of Odisha
2.Ram Gopal Khemka
3.Avinash Khemka
4.Sunita Khemka
….
5.Payal Khemka Opp. Parties
Mr.S.S.Pradhan, AGA
(for O.P. No.1)
Mr. B.N.Mohapatra, Advocate
(for O.P.Nos.2 to 5)
CORAM:
JUSTICE SAVITRI RATHO
ORDER
Order No. 30.11.2021
02. 1. This matter is taken up through hybrid mode.
2. In this application under Section 401 read with Section
397 Cr.P.C., the part of the order dated 04.09.2021 passed in
S.T. Case No.17/2018 by the learned Addl. Sessions Judge,
Rairangpur has been challenged by the petitioner, whereby the
application of the petitioner (informant) under Section 91 of
Cr.P.C. praying to direct the Superintendent, Sub-Divisional
Hospital, Rairangpur, District, Mayurbhanj and the Registrar,
Tata Main Hospital, Jamshedpur to cause production of the
documents mentioned in the schedule have been rejected mainly
on the ground that the Additional P.P. has not filed the petition
but has only given his endorsement as “Seen” and he has

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submitted that the complainant had sought for the medical document of Tata Memorial Hospital, Tata to be seized by the I.O. but those documents are very much available with the record.

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3. Mr. B.R.Behera, learned counsel for the petitioner states that these two documents mentioned in the schedule are (i) Bed Head Ticket of the deceased, Shibangi Khemka, W/O:Abinash Khemka vide OPD No.11053-D/12.01.2018 of Sub-Divisional Hospital, Rairangpur with requisition of Causality MO issued to the IIC, Rairangpur Police Station vide No.159 dated 12.01.2018 (ii) General Consent Form vide IP/18/002145 dated 12.01.2018 of deceased, Shivangi Khema, W/O: Abinash Khemka of Tata Main Hospital, Jamshedpur.

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Mr Behera learned counsel submits that he d oes not

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press the application so far as it relates to the second document in the schedule as that has already been marked as an Exhibit through the doctor of Tata Main hospital, Jamshedpur. But referring to the deposition of the I.O. Smt. Sangita Das, P.W No. 46, certified copy of which he has annexed as Annexure-8 to his additional affidavit filed on 26.11.2021 is that the submission of the learned counsel for the Opp parties Nos.2 to 5 on the last date i.e 24.11.2021 that the bed head ticket bearing OPD No. 11053-D dated 12.01.2018 of Sub Divisional Hospital, Rairangpur has already been marked as an exhibit is not correct and it is essential for a fair trial that the said bed head ticket with requisition of Casualty MO (mentioned at Serial No.1 of the Schedule in the application filed under Section – 91 CrlP.C ) are called for by the trial court so that they can be marked as exhibits. He also submits that the OPD registration number has

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been mentioned as 1053 in place of 11053 in paragraph-1 of the deposition of P.W 46 probably due to typographical error.

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4. Mr. Mohapatra, learned counsel for opp. party Nos.2 to 5 also draws my attention to the orders of the Hon’ble Supreme Court passed in SLP (Crl.) No.6349 of 2021 (annexed as Annexure-2 to the Criminal Revision), wherein there was a direction for disposal of the trial by the end of September, 2021. This period has been extended till December, 2021. He further submits that on the last occasion, he had inadvertently stated that the said Bed Head Ticket has already been marked as exhibit through the I.O Ms. Sangita Das, P.W.46. As he did not have a copy of the deposition with him, he had made the submission on basis of instructions supplied to him by the learned trial court counsel. He further submits that he has no objection if the documents in question are marked as exhibits provided the accused persons are given an opportunity to cross examine the witness through whom the documents are marked as exhibits. He further submits that as the main accused is in custody, he prays that the learned court below should be directed not to delay disposal of the case beyond the time limit fixed by the Hon’ble Supreme Court.

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5. Mr. S.S.Pradhan, learned Addl. Government Advocate also submits that it may not be necessary to call for the documents as they form part of the record having been seized by the Investigating Officer, but he does not dispute the submission that these documents are necessary to be marked as exhibits for proper adjudication of the case .

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6. Section 91 of the Crl.P.C is quoted below:

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91. Summons to produce document or other thing.

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(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

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(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

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(3) Nothing in this section shall be deemed-

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(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or

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(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

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A reading of Section 91 of the Crl.P.C reveals that the Court does not have to wait for an application to be filed by the prosecution to direct for production of any document or thing which is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding. The Court has the power to issue summons to a person to cause production of any document if it feels “ necessary or desirable for the purposes of

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any investigation, inquiry, trial” (emphasis supplied), and does not have to wait for any application to be filed.

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7. In this case when it was brought to the notice of the Court that the documents which pertain to the deceased and have a bearing on the case, have not been marked as Exhibits, he had ample power to direct for the production of the documents irrespective of the fact of who had filed the application. Even in the absence of any application, if such document or object was desirable or necessary for proper adjudication of the case, the learned Court below could have directed for their production.

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Vide the impugned order, the learned Court below has also warned the informant-petitioner not to file frivolous petitions and the main ground for rejection of the prayer of the informantpetitioner was that the application had not been filed by the prosecution (Addl. P.P.). This reasoning is fallible and perverse, as once it was brought to the notice of the learned Court that such document had not been marked as an exhibit, the learned Court below had ample power to examine if such document was necessary was adjudicating the case and it should have considered the desirability/necessity of calling for such document instead of dismissing the application on the technical ground that it had not been filed by the Addl. P.P.

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The bed head ticket contains the OPD number and mentions the health condition of the deceased and treatment given to her at the Hospital and the second document is the intimation of the medical officer regarding death of the deceased admitted vide OPD No.11053 due to 100% burns. They are therefore very much essential for adjudication of the case and in fact the application should have been filed by the Addl. P.P. But

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it is apparent that the informant – petitioner has been compelled to file such application as the Addl. P.P. did not do so himself. But it is surprising that instead of supporting the prayer in the petition, the Addl. P.P. has raised a technical objection. Be that as it may, it is not necessary to dwell upon the conduct of the Addl. P.P. as Mr. Behera, learned counsel for the informant – petitioner has brought to my notice that in the meanwhile on consideration of a petition of the informant – petitioner, the Director of Public Prosecution, Odisha vide order dated 26.11.2021 has appointed Smt. Sasmita Mohapatra, Public Prosecutor Mayurbhanj, Baripada to conduct the prosecution in the trial i.e S.T. case No 17/2018 for the “interest of the prosecution” until further order. This order has been annexed as Annexure-9 to the additional affidavit filed by the informant – petitioner.

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8. After considering the submission of the counsels and the aforesaid discussion, I am of the considered opinion that this is a fit case where the impugned order should be set aside and direction issued for calling for the documents mentioned in serial No.1 of the schedule of the petition filed under Section – 91 of the Code of Criminal Procedure. The learned trial court should direct the concerned witnesses to cause production of the documents mentioned in serial No.1 in the schedule of the application filed under Section-91 of the Crl.P.C. without any delay in view of the time limit fixed by the Hon’ble Supreme Court in SLP (Crl.) No.6349 of 2021. While doing so, opportunity should be given to the accused to cross-examine any witness, who is summoned for the said purpose.

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9. With the above direction and observations, the CRLREV is disposed of.

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10. Urgent certified copy of this order be granted as per rules.

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(Savitri Ratho) Judge

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Bichi

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Dillip Kumar Agarwal @ Agarwalla v. State of Odisha

Case brief

What is this about?

What did the court decide?

Dillip Kumar Agarwal @ Agarwalla v. State of Odisha

Case brief

What is this about?

What did the court decide?

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