Dismissed

Syed Zakir Ahmed v. The State of Telangana

Telangana HC20 Apr 2021CRLP/715/2021

Case brief

AI extract

What is this about?

Special Public Prosecutor sought to call documents from Superintendent of Police via Section 91 Cr.P.C. to refute Accused No. 1's divorce plea. High Court held production was not from accused's possession and affirmed trial court allowed application correctly to disprove defence.

What did the court decide?

Criminal Petition No. 715 of 2021 is dismissed; no quashing of the impugned order.

Syed Zakir Ahmed Vs The State of Telangana — Civil Procedure and Limitation | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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"ii,'JI; Ii,'.if iffi }il,?fl y,g5,fE*,.

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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CR IMI NALP ETITI ON N O: 715 OF 20 1

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Between:

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AND

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...PETITIoNER/ACGUSED No 1

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The State of Telanoana nuoov ii[tii.il{.Hi; i']g;8flJ S,H:T,[?:,]i33s,!i ?i.*fs:daprr, sansa

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Petition under Sectio n 4g2 of Cr.p . Crrrr,., ;::::::ffi::::: :l:l in the Memorandum of Grounds of criminal petition, the High court may be preased to QUASH the orders passed in crr.rv.p.No.1 17 0r 2019 in S.c.No.349 0f 2015, dated 30^'12.2020 on the fire of the Hon'bre court of the Judge, Family court-cumVll Additional District and sessions Judge, Ir,4edak at sanga Reddy and set aside the same

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l.A. NO: 1 oF 2021

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Petition under Section 482 of cr.p.c praying that in the circumstances stated in the lVemorandum of Grounds of criminal petition, the High court may be pleased to grant interim suspension of the orders passed in crl.lt/.p.No.1 17 ol 2019 in s.c. No. 349 of 201 5, dated 30.12.2020 on the fire of the Hon'bre court of the Judge, Family court-cum-Vll Additional District and sessions Judge, IVedak at Sanga Reddy in the interest of justice pending disposar of the above criminal petition

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of criminal Petition and upon hearing the arguments of Sri s. Surender Reddy, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent

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The Court made the following: ORDER

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THE^{HON'BLE SRIJUSTICEK' LAKSHMAN} cRl MtN^{ALPETITroNNo.71 5of2} 0²¹

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ORDER:

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This^{petition is filed under Section 482 of Cr'P'C''to quash the} order dated^{30.12'2020 in Crl'tt4P'No '117 of 2019 in S'C'No'349 of} 2015^{passed by the Judge' Family Court-cum-Vll Additional District} and Sessions^{Judge, Medak at Sangareddy'}

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The^{petitionerherein is Accused No'1in S'C No'349 of 2015'} The offences^{alleged against him are under Sections 344' 363 and} 302oflPCandunderSection23ofJuvenileJustice(Careand Protection of Children)^{Act,2OO5and under Section 14 of Child} Labour^{(Prohibition and Regulation)Act, 1986'}

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Heard Sri S. Surender^{Reddy, learned counsel for the} petitioner/Accused No.1 and^{learnedPublic Prosecutor for the} respondent-complainant.

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The respondent-complainant has filed a^{petition under} Section 91 of Cr.P.C., vide Crl.M.P.No.117^{of 2019 in S.C.No.349 of} 2015 seeking production of certain documents^{from the} Superintendent of Police, Sangareddy, i.e., Nomination^{Form of} General lnsurance, T.S.G.L.l. Bhadratha^papers and^Membership- cum-Nomination Form of A.P.Police Department^Employees Benevolent and Termination Letter etc., to^provewhether Khulanama recorded in the service record of Accused No.1 to delete the name of his wife/Accused No.2 from his service record.

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KL, J Crl.P.No.715 of 2021

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The respondent herein has filed the above said application contending that during the course of examination under Section 313 of Cr.P.C., the petitioner herein/Accused No.1 stated that due to misunderstandings cropped between him and his wife/Accused No.2, she gave divorce to him on 22.05.2014 i.e., prior to the date of offence. Later, he was dismissed from service w.e.f. 28.10.2015. Therefore, in view of the said defence taken by petitioner herein/Accused No.1 in S.C.No.349 of 2015 during his examination under Section 313 of Cr.P.C., the prosecution with an intention to elicit the truth about the relationship between the petitioner /Accused No.1 and Accused No.2 at the time of offence and also with regard to the genuinity of Exs.Dl and D2 marked on behalf of Accused Nos.1 and 2, called for the said documents. According to the prosecution, Accused No.1 has created a fake document i.e., Khulanama, which was obtained from the President of Madina Mazid Committee at Mahilya Arya Nagar, Zaheerabad. The President of the said Mazid is not a competent authority to record divorce as there is separate wing i.e.,Khazarath Office (Divorce Office), for the purpose of dissolution of marriage.

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The trial Court vide order dated 30.12.2020, allowed the said application on the ground that the said documents are relevant for the purpose of disproving the defence/plea taken by the accused during the course of examination under Section 313 of Cr.P.C. The Court below also gave a finding that the delay in filing the application by fne respondenUcomplainant is not a ground to dismiss the application as the defence taken by the accused is only after

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KL. J Crl.P.No.715 of 2021

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completion of^prosecution evidence^{and therefore,there is no} chance for the^prosecution to^produce the^{rebuttal evidence} regarding the alleged Khulanama^prior to^{the production of D.W.'1} evidence by the accused,

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Sri S. Surender Reddy, learned counsel for the^petitioner, referring to Section 91 of Cr.P.C., would submit that the Court^{is not} having power to call for incriminating material from the^accused. Placing reliance on the principle laid down by the Honourable Apex Court in State of Gujarath v. Shyamlal Mohanlal Choksil; L.Hemalatha v. T. Suryachandra Reddy and another2; Girika Nagalakshmi and others v, State of Andhra Pradesh and another3; Rajesh Talwar and another v. Central Bureau of lnvestigation and anothera; Om Prakash Sharma v. CBl, Delhis; State of Orissa v. Debendra Nath Padhi6; and K. Senthamarai and others v. StateT, learned counsel for^petitioner would submit that the Court is not having power to call for incriminating material from an accused by invocation of its^power under Section 91 of Cr.P.C. He would further submit that the prosecution cannot be, at the stage of framing of charge, invoked Section 91 of Cr.P.C., to seek production of any document to prove the defence taken by the accused. He would further submit that the trial Court, without appreciating the said contentions of the petitioner and also the principle laid down in the above said judgments, allowed the

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'^{ltR t965 sc t2st} I^zoozlr 1^aro 1ca.1^{6s8 (A.P.)} '2016(1)ALD^(Crl.)320

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o 2014(r ) scc 628 :^{(2ooo)sscc 679} " 2005(1)scc 568 ' 1998(1) ALD (Crl ) 658 Madras

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.l KL. J Crl.P.No.715 of 2021

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application filed by the prosecution under Section g1 of Cr.p.C. vide impugned order dated 30J22020. With the said submissions, learned counsel for the petit[oner sought to quash the impugned order.

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On the other hand, learned Public Prosecutor would submit that Accused No.1, during his examination under Section 3i3 of Cr.P.C., has taken defence that Accused No.2 has taken divorce from him on 22.05.2014 itself i.e., prior to the date of offence, and thereafter, he was dismissed from service on 28.10.2015. He has filed Ex.D1 and D2-Khulanama obtained from the President of Madina Mazid Committee situated at Mahilya Arya Nagar, Zaheerabad, which is not competent to issue the said certificate. The competent authority to record divorce is Khazarath Office.

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Learned Public Prosecutor would further submit that the trial Court did not call for any document from the petitioner herein/Accused No.1 under Section 91 of Cr.P.C., and the prosecution has sought to call for the said documents from the office of the Superintendant of Police, Sangareddy. The intention of the prosecution is to prove that the defence taken by the petitioner/Accused No.1 is false and he has taken the said defence by way of producing fake documents under Exs.Dl and D2, including Khulanama. Therefore, the prosecution with an intention to disprove the defence taken by the petitioner/Accused No.1 sought for the documents from the office of the Superintendant of Police under Section 91 of Cr.P.C. Considering all the facts and the contentions raised by both parties only, the trial Court vide impugned

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KL. J Cd .P .No .7 1 5 ol 2021

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order allowed the^{petitionfiled by the prosecutionunder Section91} of Cr.P.C. According to^{the learned Public Prosecutor,there is no} error in the impugned^{order. With the said submissions,learned} Public Prosecutor sought^{to dismiss the presentpetition.}

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ln view of the above said^{rival submissions,it is relevant to} extract Section 91 of Cr.P.C.,^{to decide the lis involvedin the present}

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case.

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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 thingis} necessary or desirable for the^{purpose of any investigation, inquiry,trial} or other^proceeding under this Court^{by or beforesuch Courtor officer,} such Court may issue a summons,^{or such officera written order, to the} person in whose possession or power such document or thing^is believed to be, requiring him to attend^{andproduceit, or to produceit 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 things shall^{be deemedto have compliedwith the} requisition if he causes such^{document or thingsto be producedinstead} of attending^personally to^{produce the same.}

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As per the said^provision, the trial^{Court considersthat 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, may issue summons^{callingfor the said documents from} the person in whose^possession, the^{said documents are there.}

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lt is also relevant to note that it is the specific^{contention of} the prosecution that the^petitioner herein/Accused No.1 has taken^a defence that Accused No.2 gave divorce to him on 22.05.2014 i.e., prior to the date of offence. He was dismissed from service on 28.10.2015 and he has filed Exs.D1 and D2-Khulanama in^proof of

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the same during his examination under Section 313 of Cr.P.C. He has also examined D.W.1, President of Madina Mazid Committee, and filed the above said -Khulanama issued by Madina Mazid Committee at N/ahilya Arya, Nagar, Zaheerabad, According to the prosecution, the President of the said ttlazid is not competent authority to record divorce as there is separate wing for dissolution of marriage i.e., Khazarath Office. lt is also relevant to note that there are serious allegations against the petitioner herein/Accused No.1. On 29.01 .2015, the complainant, Social Worker and Director, CARPED and Child Line Director, Medak, lodged a report stating that he received information that a girl is being tortured physically in the house of Accused Nos.1 and 2 at ti/alkapur Cross Roads, Kondapur. On that, he took the assistance of police and proceeded to the house of Accused Nos.1 and 2 and found a girl, aged 5 years, in a pathetic condition with burn injuries and she was unable to move and talk. The complainant called for 108 ambulance and shifted the said girl along with Accused No.2 to the Government Hospital, Sangareddy, for treatment, where the doctor examined and declared that the girl was brought dead. On enquiry, he came to know that the girl is not the daughter of Accused Nos.1 and 2 and she was brought one month back from somewhere and detained^her in their house for domestic work and^{harassed her and due to} unbearable harassment, said^girl died.^{Basing on the said complaint} lodged by the complainant, the^{police have registered a case for the} aforesaid offences.

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KL, J Crl.P,No.715^{of 2021}

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Thus, there^{are serious allegationsagainst the petitioner} herein/Accused^{No.1 and Accused No 2' Both the accusedpleaded} not guilty for the^{charges framed against them The prosecution has} examined P.Ws.1^{to 31 and markbd ExsP l to P'41'On behalf of} the accused, D.W.1^{was examinedand Exs'D1and D2 were} marked. After^{closure of the prosecution evidence,AccusedNos'1} and 2 were examined^{under Section31 3 of Cr'P'C', whereinthey} havestatedthattheyhavetakendivorceandresidingseparately. The^{petitionerherein/AccusedNo.1 and Accused No'2also} examined the^{Presidentof Madina tt/azid Committeeas D'W'1' who} deposed that^{AccusedNo.2 has approachedthe said Mazid} committee and^{informedthat she wants to give divorceto Accused} No.1 and accordingly,^{he called both the parties' and Accused No2} has executed Khulanama.^{Ex.D1 is the said Khulanama} dated 22.05.2014,^{which is prior to the alleged date of offence'} According to^{prosecution, said Ex.Dl'Khulanama is a fake document} and the^person before^{whom saidKhulanamawas executed is not} competent. lt is also further^{contendedby the prosecution that there} is no entry in the service record of^{Accused No.1 regardingthe said} divorce (Khulandma). The name of Accused^{No.2was not deleted} from the service record of Accused No.1. Therefore,^{it is necessary} to direct the Superintendent of Police, Sangareddy, to^{produce the} Nomination Form of General lnsurance, TSGLI Bhadratha^papers, Membership-cum-Nomination Form of A.P. Police Department Employees Benevolent and Termination Letter and also the service record of Accused No.1 to disprove that the name of Accused No.2

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KL, J Crl.P.No.715^{of 2021}

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was not deleted^{and also the contention that both AccusedNos"l} and 2 have^{obtained divorce}

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12.Theabovestateddiscussionwouldrevealthattheprosecution did not call^{for any document, much less incriminating material from} the^{possessionof the accused. The prosecution has called for the} above said^{information from the possessionof the Superintendent of} Police, Sangareddy,^{in order to disprove the defence taken by the} petitioner/Accused^{No.'l that he has takendivorcefrom his wife-} Accused^{No.2 by way of Ex'D1-Khulanama'According to the} prosecution, they want^{to disprove that the said Ex'D1-Khulanamais} a fake document^{and the Presidentof the MadinaN/azidCommittee'} It/ahilya Arya^{Nagar, Zaheerabad, is not having power to issue} Ex.D1-Khulanama^{and the said fact would be disproved onlycalling} for the record^{of petitioner/Accused No'1from the possession of the} Superintendent^{of Police, Sangareddy' Thus' it is clear that the} prosecution did not^{call for any information' much less incriminating} material from the^{possession of the accused as contended by the} learned counsel^{for the petitioner}

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ln Shyamlal^{Mohanlal Choksi'scase supra' a Five-Judge} Bench of the^{HonourableApex Court had on occasionto deal with} Section^{94 of Cr.P.C.,and held that if by summoninga personwho} is accused^{beforethe Courtto produce documentsor things, he is} compelled^{to be a witness againsthimself' the summonsand all} proceedings taken^{thereon by order of the Courtwill be void' This} protection must,^{undoubtedly,be made effective'but within the}

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sphere delimited by^{the judgment of this Court in State of Bombay} v. Kathi Katu Oghad8. lt^{needs however to be affirmed that the} protection against what is called testimonial compulsion^{under Article} 20(3) is against^proceedings in^{Court. lt does not applyto orders} which may be made by a^{police officerin the course of investigation.} The Court cannot therefore^{be calleduponto considerwhether the} action of a^police officer calling^{upon a person chargedwith the} commission of an offence to^produce a^{documentor thing in his} possession infringes the guarantee under Article 20(3) of^the Constitution.

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As discussed supra, in the^{present case, the prosecution} called for documents from the^{possessionof the Superintendent of} Police, Sangareddy, but not from the^{possessionof the petitioner} herein/Accused No.1 and therefore, the^{principlelaid down by the} Honourable Apex Court in the above^{judgmentis not applicable to} the facts of the^present case.

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ln other^judgments cited by the^{learned counselfor the} petitioner supra, it was held that the investigating officer or Courts are not having power to call for any document and^{incriminating} material from the possession of the accused under Section 91 of Cr.P.C., whereas in the present case, the^prosecution did not call for any material including incriminating material from the^possession of the accused. The^prosecution has filed the^{present petition} under Section 9'l of Cr.P.C., seeking to call for the records and information from the possession of the Superintendent of Police, Sangareddy, E't got crt.L.;. eso

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for the purpose of disproving the defence^taken by^the petitioner/Accused No.1 that he has obtained divorce from Accused No.2 under Exs.D1 - Khulanama. Therefore,^{the principle laid down} therein is not applicable to the facts of^{the present case.}

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As stated above, the Court below^{gave a specific findingin the} impugned order. The Court below^{has also considered the aspect of} delay and fair trial and the^{relevance of the documents soughtby the} prosecution and its genuinity. Therefore, according to this^Court, there is no error, much less manifestly^{committedby the trial Court in} the impugned order. According to this^{Court, the trial Court has} rightly allowed the application^{filed by the prosecutionunder} Section 91 of Cr.P.C.,^{vide the impugned order' Thus, the petitioner} herein fails to establish any^{ground seeking interference of this Cou(} to quash the impugned^{order invoking the inherent powers of this} Court under Section 482 of^Cr.P.C.