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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF JULY 2016

BEFORE

THE HON’BLE MR.JUSTICE H.BILLAPPA

CRIMINAL PETITION No.938/2016

BETWEEN: Sri.Gopal Sheelum Reddy, Also known as Nithya Bhaktananda, Aged about 54 years, Presently R/o.Nithyananda Dhyanapeeta,

Allugopanahalli village, Bidadi Hobli, Ramanagar Tq., Ramanagar Dist. ...PETITIONER (By Sri.C.V.Nagesh, Sr.Counsel for Sri.Raghavendra K. Adv.)

AND: State of Karnataka By the Station House Officer, Bidadi Police Station, Ramanagara Dist. ...RESPONDENT

AND: Sri.Nithya Dharmananda @ K.Lenin Aged about 40 years, S/o.Late Sri.L.aruppanan,

Old No.94, Odaiadu, Veppampoondi village, Gangavalli Tq.,

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Salem Dist., Tamil Nadu. …IMPLEADING APPLICANT-1 Ms.Aarthi Rao, Major in age,

D/o.Shri Sethumadhavan, PHA Grace Garden Apartments, Hennur Main Road, Bengaluru -560 043. …IMPLEADING APPLICANT-2 (Sri.P.M.Nawaz, SPP for R-1;

Sri.M.S.Rajendra Prasad, Sr. Counsel and Smt.T.S.Rajarajeshwari, Advocates. for impleading applicants) **********

This Criminal Petition is filed u/s 482 Cr.P.C. to set

aside the order dated 28.1.2016 passed in S.C.No.86/2014 presently pending on the file of III Addl. Dist. & S.J., Ramanagara on the application filed by the petitioner under

S.91 of Cr.P.C. and further be pleased to grant the said application in its totality.

This Criminal Petition coming on for orders this day, the

Court made the following:

O R D E R

The petitioner who is accused No.2 in S.C.86/2014 on

the file of III Addl. Dist. & Sessions Judge, Ramanagara, has

filed this petition challenging the order dated 28.1.2016

passed by the Trial court rejecting the application filed by the

petitioner and three other accused to summon the statements

of witnesses and documents mentioned in the application.

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2. By the impugned order, trial court has rejected the

application filed by the petitioner and three other accused

under Sec.91 of Cr.P.C. praying to summon the documents

and statement of witnesses mentioned in the application.

3. Aggrieved by that, the petitioner has filed this

criminal petition.

4. Briefly stated the facts are: The petitioner and

four other accused have been charge-sheeted for the offences

punishable under Secs.376, 377, 295-A, 420, 506 R/w

Sec.120-B of IPC. At the stage of hearing before framing of

the charges, the petitioner and three other accused have filed

application under Sec.91 of Cr.P.C. praying to summon

statements of witnesses and some documents collected in the

course of investigation. The Trial court by its order dated

28.1.2016 has rejected the application.

5. Aggrieved by that, petitioner has filed this criminal

petition.

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6. The applicants Sri.Nitya Dharmananda @ K.Lenin

and Ms.Aarthi Rao have filed I.A.2/16 praying to permit them

to come on record and contest the matter.

7. The learned counsel for the petitioner contended

that the impugned order cannot be sustained in law. He also

submitted that the statements of witnesses and documents

sought to be summoned were collected during the course of

investigation and it was part of the investigation. Therefore,

the trial court was not justified in rejecting the application.

Further he submitted that petitioner or the other accused are

not seeking to produce the defence documents and they are

seeking to summon the statements of witnesses and

documents which were collected during the course of

investigation. If the statements and documents are not

summoned, it would seriously affect the rights of the accused

persons. Further he submitted that the trial court has

rejected the application mainly relying upon the decision of

the Hon’ble Supreme Court in the case of Debendra Nath

Padhi’s case. The Trial court has mis-read the judgment.

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The law laid down in the said case is that the defence cannot

produce any documents seeking discharge under Sec.221 of

Cr.P.C. In the present case, the petitioner and other accused

are not seeking to produce any defence documents. They are

requesting the court to summon statements and documents

which were collected during the course of investigation. It is

the duty of the investigating officer to bring all the material

collected during investigation on record. In the present case,

the statements of witnesses recorded and documents

collected in the course of investigation are not part of the

charge-sheet. Further, though ordinarily accused persons

cannot produce the defence documents but in rare cases if

the documents are undisputed such documents can be

produced for consideration of the court even by the accused

also at the stage of framing of charges. The Trial court has

failed to consider that non-production of the material

collected during the course of investigation wantonly and

without any justification has seriously affected the rights of

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the accused. In support of his submission, he placed reliance

on the following decisions:

1. A.I.R. 2005 S.C. page 359

2. A.I.R. 2009 S.C. page 1013

3. (1) 2007 D.M.C. page 793

4. 2016(2) AKR Page 177

8. The learned SPP submitted that the impugned

order does not call for interference. At this stage, the

application is mis-conceived and not maintainable. Further

he submitted that item Nos.3 & 4 mentioned in the order at

para 8 are already furnished. Notes and orders sought by the

petitioner are not there. Statement of Krishna Shama Rao is

not at all recorded. Further he submitted that Ranjita is not

cited as a witness in the charge-sheet and therefore, her

statement is not part of the charge-sheet. Further he

submitted under Sec.207 of Cr.P.C., the statement of the

persons whom prosecution proposes to examine as witnesses

only need to be furnished. Accordingly, along with the

charge-sheet statement of all the witnesses whom the

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prosecution proposes to examine have been furnished.

Therefore, the application was mis-conceived and not

maintainable. Further he submitted that out of 48 witnesses,

the statements of 32 witnesses is part of the case diary and

statements of 10 witnesses is part of the charge-sheet i.e.,

CWs.-1, 16, 36 to 43. He also submitted that in so far as the

remaining 38 witnesses, statements of 32 witnesses is part of

the case diary and six witnesses were enquired and their

statements were not recorded. Further submitted that the

statement of Ranjitha was recorded subsequent to 11.6.2010

and it is part of the case diary. The affidavit of investigating

officer Sri.K.N.Yogappa has been filed. Regarding 13

statements requested by the petitioners under the Right to

Information Act, the learned SPP submitted that the

statements of Sri.Nithya Atmaprabhananda, Ma Nithya

Bhaktikananda (Valli R), Ma Nithya Dayananda Mayi (Jyothi

Sheelum), Ma Nithya Gopikananda (Umadevi), Ma Nithya

Supriyananda, Sri.Nithya Yogananda & Sri.Nithya

Hamsananda were not recorded. Statements of Ma Nithya

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Shantananda (Suman) and Ma Nithya Vimalananda

(Parameshwari) is part of the charge-sheet and they are CWs-

37 & 39. Further he submitted that the statements of

Sri.Nithya Atmaprabhananda, Dr.Sri.Nithya Pranananda,

Sri.Nithya Yogatmananda, Sri.Nithyeshwarananda & Ma

Nithya Achalananda are recorded but not part of the charge-

sheet.

9. Placing reliance on the decision of the Hon’ble

Supreme Court reported in AIR 2005 SC page 359 in the

case of State of Orissa v. Debendra Nath Padhi, the

learned SPP submitted that Section 91 cannot be invoked by

the accused to compel production of document at this stage

to show his innocence.

10. Further placing reliance on the decision of the

Hon’ble Supreme Court reported in 2014 Cri.LJ 1444 in the

case of State of Tamilnadu by Ins. of Police Vigilance and

Anti Corruption vs. N.Suresh Rajan and Ors., the learned

SPP submitted that at the stage of consideration of framing

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the charges, the Court has to proceed with an assumption

that material produced by the prosecution is true and

evaluate the said material to find out whether prima-facie

case is made out or not.

11. Further placing reliance on the decision of the

Madras High Court reported in 2004 Cri.LJ 1623 in the case

of M.Sathiamoorthi vs. State rep. by SPE/CBI/ACB, the

learned SPP submitted that under Section 91, the accused is

neither entitled to seek for production of documents either by

the Court or by other side nor it is incumbent on the part of

the Trial Court to summon the documents. He, therefore,

submitted that the impugned order does not call for

interference.

12. The learned counsel for the applicant No.1

submitted that applicant No.1 is the complainant at whose

instance the proceedings are initiated, and applicant No.2 is

the victim. Their presence is required for effective

adjudication of the matter. In Crl.P.No.4090/2011, the

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applicant No.1 was made party to the proceedings. Further,

the persons whose statements are recorded and who are not

cited as witnesses cannot be summoned at the instance of the

accused. It is the domain of the prosecution to produce the

documents in support of its case as we are working in

inquisitorial system. He, therefore, submitted that the

applicants may be permitted to come on record and contest

the matter.

13. The learned counsel for the applicant No.2

adopted the arguments of the learned counsel for the

applicant No.1.

14. In reply, the learned counsel for the petitioner

referring to Section 24(1) and 24(8) of Cr.P.C submitted that it

is the Public Prosecutor who is in-charge of the case and the

case needs to be conducted by the State represented by the

Public Prosecutor under Section 24(8) of Cr.P.C. The victim

may be permitted to engage the services of a counsel to assist

the prosecution. The victim or any other person if permitted

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can only assist the prosecution and they cannot directly

participate in the proceedings. The application filed by the

victim in Crl.P.4582/12 was rejected by this Court. It is the

discretion of the Court to allow or not to allow. In the present

case, the prosecution is effectively contesting the matter and

the matter relates to summoning of the documents and

statements collected in the course of investigation and

therefore, the presence of the applicants is not required and

they cannot be heard. Therefore, the application may be

rejected.

15. I have carefully considered the submissions made

by the learned counsel for the parties.

16. The points that arise for my consideration are:

i. Whether I.A.No.2/2016 filed by the applicants need to be allowed?

ii. Whether the impugned order calls for interference?

17. Point No.1:

I.A.No.2 has been filed by the applicants claiming

that applicant No.1 is the complainant and applicant No.2 is

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victim and their presence is required for effective adjudication

of the matter. They need to be heard in the matter.

18. Section 24 of Cr.P.C. provides for appointment of

a Public Prosecutor or Addl. Public Prosecutor for conducting

the case in any prosecution, appeal or other proceedings on

behalf of the Government. Section 24 (8) provides that the

Central or State Governments may appoint for any case or

class of case, a person who has been in practice as an

advocate, as a Spl.Public Prosecutor. Proviso to Section 24(8)

of Cr.P.C provides that the Court may permit the victim to

engage an advocate of his choice to assist the prosecution

under this sub-section.

19. It is clear from Section 24(1) and 24(8) that it is

the Public Prosecutor who should conduct the prosecution. No

doubt, the victim may be permitted to engage an advocate to

assist the Prosecutor. In fact, applicant No.2 had filed an

application in Crl.P.No.4582/2012. It has been rejected by this

Court. It is stated, the applicants have filed application

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before the trial Court and it is still pending. Further, the

application filed by the applicant No.2 has been rejected earlier.

The present case relate to summoning of the documents and

statements collected during the course of investigation. The

prosecution is effectively contesting the matter. Therefore, it is

unnecessary to permit the applicants to come on record.

Accordingly, I.A.No.2/2016 is hereby rejected.

20. Point No.2:

The petitioner and three other accused have filed application

under Section 91 of Cr.P.C. praying to summon statements of

witnesses and also documents collected during the course of

investigation. Briefly, the documents sought to be summoned

are;

i. Statement of one Ranjitha.

ii. Statement of 48 witnesses recorded prior to 11.06.2010.

iii. Medical report of Aarathi Rao

iv. Medical examination report of accused Nos.1 & 2.

v. Notes and orders.

vi. Statement of Dr.Krishna Shama Rao.

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vii. Potency test report of 1st accused.

21. However, the learned counsel for the petitioner

submitted that he confines only to the following statements and

documents:

i. Statement of Ranjitha;

ii. Statement of 48 witnesses recorded prior to 11.06.2010

iii. The medical records of Aarthi Rao for the period from 2004 to 2010 maintained at University of Michigan Hospitals, USA;

iv. Medical examination report of accused No.1 done at Fortis hospital, New Delhi; and

v. E-mail correspondence between Aarthi Rao and Vinay Bharadwaj.

22. It was contended by the learned SPP that the

application is misconceived and not maintainable. It is only to

protract the proceedings such an application has been filed.

He placed reliance on the decision of the Hon’ble Supreme

Court reported in AIR 2005 SC page 359.

23. As against this, the learned counsel for the

petitioner contended that the trial Court has misread the

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judgment. The law laid down in Debendra Nath Padhi’s case

is that the accused cannot produce defence documents at the

stage of framing charges to prove his defence. It has nothing to

do with summoning of the documents from the investigating

agency which are collected during the course of investigation.

He placed reliance on the decision of this Court reported in

2016 (2) AKR 177 Mrs.Sharada Urs v. Bharthi Urs Rani

and others to contend that once statement of witnesses is

collected during the course of investigation that should be

produced before the Court in order to provide an opportunity to

the accused, if necessary to make use of the material,

otherwise, it is denying fair trial to the accused.

24. He also placed reliance on the decision of the Delhi

High Court in the case of Shakuntala vs. The State of

Delhi reported in 1 (2007) DMC 793 and submitted that

fair investigation is the right of the accused and it can be

exercised by the accused at the time of charge and accused

can insist upon the Court to summon the material collected

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by the Investigating Officer, but not made part of the charge

sheet. In the present case, the accused is not producing any

documents in support of his defence, but is requesting the

Court to summon the statements and documents collected

during the course of investigation.

25. Further, placing reliance on the decision of the

Hon’ble Supreme Court reported in AIR 2009 SC 1013 in the

case of Rukmini Narvekar v. Vijaya Satardekar & Ors., the

learned counsel for the petitioner submitted that even while

framing charges also if the material established that the whole

prosecution case was absurd or totally concocted, the accused

can produce defence documents. Therefore, in the present case,

the trial Court was not justified in rejecting the application.

26. In State of Orissa v. Debendra Nath Padhi reported

in AIR 2005 SC 359(1), the Hon’ble Supreme Court has held

that Section 91 of Cr.P.C. does not confer any right

on the accused to produce document in his possession to

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prove his defence. Section 91 presupposes that when the

document is not produced process may be initiated to compel

production thereof. It is clear what is considered by the

Hon’ble Supreme Court in Debendra Nath Padhi’s case is

whether the accused invoking Section 91 can produce

documents in his possession to prove his defence. In that

context the Hon’ble Supreme Court has held that the accused

cannot produce any documents in his possession to prove his

defence at the time of framing charges. But, in the present

case, the circumstances are totally different. In the course of

investigation the statement of witnesses have been recorded

and documents have been collected, but they are not produced

with the charge sheet. Therefore, the petitioner is seeking to

produce statements and documents collected during the course

of investigation.

27. It is relevant to refer to the Division Bench

decision of this Court reported in 2016 (2) AKR 177 in the

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case of Mrs.Sharada Urs v. Bharthi Urs Rani and others, at

para 112, it is observed as follows:

“It is the fundamental principle of criminal

jurisprudence that whether it is helpful or not helpful to

the prosecution, but once the statement of witnesses

collected during the investigation, that should be

produced before the Court in order to provide

opportunity to the accused if necessary to make use of

such material.”

28. Similarly, in the decision reported in 1 (2007)

DMC 793 the Delhi High Court has observed as follows at para

4:

“It is settled law that fair and just

investigation is a hallmark of any investigation. It is not

the duty of the Investigating Officer to strengthen the

case of prosecution by withholding the evidence

collected by him. If an Investigating Officer withholds

the evidence collected by him the accused has a right to

rely upon that evidence and tell the Court to take that

evidence into account while framing the charges. The

Court while framing charges may not take into account

the defense of the accused or the documents in custody

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of the accused which were not produced by the accused

before the Investigating Officer or which did not form

part of the investigation but the Court is duty bound to

consider the evidence collected by the Investigating

Officer during the investigation of the case. If it is

brought to the notice of the Court by the accused that

some of the evidence or documents have been withheld

by the Investigating Officer or the prosecution

deliberately, so that truth does not come out before the

Court, the Court, before framing of charge can order the

Investigating Officer to place the entire investigation

before it and ask him to produce case diaries. Fair

investigation is the right of the accused and this right

can be exercised by the accused at the time of charge

and the accused can insist upon the Court to consider

the evidence collected by the Investigating Officer but

not made part of the charge-sheet. The evidence relied

upon by the accused is not produced by the accused

from his custody but it is the evidence collected by the

Investigating Officer.”

29. It is clear from the above decisions that the

material collected in the course of investigation need

to be produced by the prosecution. In the present case, the

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prosecution has not produced statements and documents

collected in the course of investigation. Therefore, the

petitioner and other accused have prayed to summon the

statements and documents collected in the course of

investigation.

30. The learned SPP has filed affidavit of the

Investigating Officer who was in-charge of the investigation

during that period. It is stated in the affidavit that during the

course of investigation, he recorded the statement of 48

witnesses as on 11.06.2010 including the further statement of

the complainant. Out of 48 witnesses, the statement of 10

witnesses is already part of the charge sheet i.e., C.W.1,

C.W.16, C.Ws.36 to 43. Further, insofar as the remaining 38

witnesses are concerned, the statement of 32 witnesses is part

of the case diary. However, it is stated, six witnesses were

inquired to know about the whereabouts of the accused and

their statements were not recorded. Further, it is stated

that statement of Ranjitha was recorded subsequent to

11.06.2010 and it is part of the case diary. It is clear, the

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Investigating Officer has admitted that statement of 42

witnesses were recorded. Insofar as six witnesses are

concerned, their statements were not recorded. The learned

counsel for the petitioner does not dispute that statements of

10 witnesses i.e., C.W.1, C.W.16, C.Ws.36 to 43 are part of the

charge sheet. The statement of 32 witnesses recorded

during the course of investigation are available. Insofar as the

statement of Ranjitha is concerned, it is stated, her statement

was recorded subsequent to 11.06.2010 and it is not produced

along with the charge sheet. Insofar as the medical records of

Aarathi Rao for the period from 2004 to 2010 pertaining to

her treatment at University of Michigan Hospitals, USA, it is

stated in the statement of objections filed before the trial

Court that Investigating Officer has not collected the

documents but somebody from the accused side to help the

accused produced some documents and as they were not

related to the proceedings they were not considered. As the

documents came from the accused side, copies of the

documents were not furnished. It is clear, in the course of

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investigation some documents have been produced. It is not

clear, what are those documents and who produced them. It

can be ascertained from the case diary or other investigation

material.

31. It is clear that 32 statements recorded prior to

11.06.2010 are available. Statement of Ranjitha is also

available. It is not clear whether statement of six

persons was recorded or not. It is also not clear what was the

medical report of Aarathi Rao, the medical report of accused

No.1 and e-mail correspondence. Therefore, the trial Court can

be directed to summon the statement of 32 witnesses which

were recorded prior to 11.06.2010 and the statement of

Ranjitha. Insofar as the statement of six witnesses, the

medical records of Aarathi Rao, medical records of accused

No.1 and e-mail correspondence between Aarathi Rao and

Bharadwaj is concerned, it is for the trial Court to look into

the case diary and other investigation material. If it is found

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that those documents are available, the trial Court can

summon and consider them.

32. Accordingly, the criminal petition is allowed and

the order dated 28.01.2016 passed by the trial Court on the

application filed by the petitioner and three other accused is

hereby set-aside. Further, it is ordered as follows:

i. The trial Court is directed to summon statements of

32 witnesses, which are available with the Investigating

Officer and the statement of Ranjitha.

ii. Insofar as the statement of six witnesses, medical

records of Aarathi Rao, medical records of accused No.1

and e-mail correspondence between Aarathi Rao and

Vinay Bharadwaj is concerned, the trial Court shall look

into the case diary and investigation material and if it is

found that those documents are available, the same can

be secured and considered.

At this stage, the learned SPP requested to return the

statement of 32 witnesses produced before this Court

stating that they are going to be summoned by the trial Court.

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Accordingly, the learned SPP is permitted to take back the

statement of 32 witnesses by furnishing Xerox copies of those

statements.

Sd/- JUDGE

R*/BSR

2016-08-19T14:17:54+0530SUSHMA LAKSHMI B S