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Under sec. 311. 233 of Cr. p.c. r/w evidence Act at fag end of trial = RAJESH TALWAR & ANR Vs. CBI & ANR published in judis.nic.in/supremecourt/filename=40869

Under sec. 311. 233 of Cr. p.c. r/w evidence Act – No application for summoning witnesses and

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

for summoning documents etc., at the fag end of the trial,  filed for dilatory tactics is to be allowed =

 

       

 

Apex court held that the application is vexatious and intended to only delay the proceedings as

 

      was also found by the trial Court and High court.

 

 

 

After considering the rival submissions on this point,  

 

we  find

 

      no merit in the contention on behalf  of  the  petitioners  that  they

 

      could not have approached this Court earlier.  

 

There is no reason  why

 

      the petitioners ought to have waited from 19.7.2013  to  17.9.2013  to

 

      approach this Court and allowed the trial to proceed even further.  –

 

 

 

     a.    Accused filed application dated 22.07.2013 in  Trial  Court  for

 

      adjournment to produce their defence witness.  They moved  application

 

      dated 06.8.2013 in  Trial  Court  for  direction  to  CBI  to  produce

 

      document, Tabulated chart etc.

 

      b.     Trial  Court  passed  order  dated  12.08.2013  rejecting   the

 

      application for supplying of tabular charts.

 

      c.    Accused moved application dated 02.09.2013  in  Trial  Court  to

 

      call PW-6 Dr.B.K.Mahapatra, CFSL, Bio Division, to file an affidavit.

 

      d.    Trial Court passed order dated 03.09.2013 rejecting  the  prayer

 

      to call upon Dr.B.K.Mahapatra to file affidavit.

 

      e.    Trial Court passed order dated 03.09.2013 directing the  accused

 

      to produce the defence witnesses from foreign   country  on  the  next

 

      date or through video conferencing.

 

      f.    Accused moved application dated 07.09.2013  for  adjournment  to

 

      produce defence witness from foreign country.

 

      g.    Accused moved application dated 12.09.2013 in Trial   Court  for

 

      exhibiting documents.

 

      h.    Accused moved application to recall Dr. B.K. Mahapatra  for  his

 

      further cross examination.

 

      ?i.    Seventh DW examined.

 

 

 

 

 

      j.    Accused filed another application  for  re-examination  of  DW-7

 

      (Dr.Andrei Semikhodskii).

 

      k.     Trial  Court  dismissed  the  aforesaid  application  for   re-

 

      examination  of  Dr.B.K.Mahapatra  and  posted  the  case  for   final

 

      arguments i.e stage of 233 Cr.P.C. is crossed.

 

           It may be pertinent to note that petitioners took 04  months  to

 

      produce 7 DWs after  the  closing  of  statement  u/s  313  Cr.PC.  On

 

      25.09.2013 case was  fixed  for  final  arguments  but  accused  moved

 

      applications u/s 233 Cr.PC.

 

      l.    Accused moved application U/s 233 Cr.P.C.  dated  26.09.2013  in

 

      Trial Court to send physical exhibit Khukri abroad for re-examination.

 

 

 

 

 

      m.     Trial  Court  passed  order  dated  28.09.2013  dismissing  the

 

      aforesaid application.

 

      n.    Accused moved application U/s 233 Cr.P.C.  dated  30.09.2013  in

 

      Trial Court to file disclosure statements of Krishna, Vijay Mandal and

 

      Rajkumar. Case adjourned to 1.10.2013 for objections and arguments  on

 

      the application. Petitioners moved another application U/s 233 Cr.P.C.

 

      dated 30.09.2013 in Trial Court for summoning witnesses of lOs of CBI,

 

      UP Police and private persons as defence witnesses. Case adjourned  to

 

      1.10.2013 for objections and arguments on the application.

 

      o.    On 1.10.2013, petitioners did not argue the applications and one

 

      lawyer informed the court that  their  counsel  is  ill  and  obtained

 

      adjournment.

 

 

 

   Thus,  from  the  afore-stated  facts,  it  is   evident   that

 

      petitioners have been adopting dilatory tactics on every  moment.  The

 

      impugned order was passed on 19.7.2013. This petition was filed  after

 

      about two months.

 

 

 

 

 

      12.   In view of the above, we are  of  the  considered  opinion  that

 

      facts and circumstances of the case do not warrant  any  interference.

 

      The  special leave petition is accordingly dismissed.

 

REPORTABLE

 

 

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 

Special Leave Petition (Crl.) No.7966 of 2013

 

Dr. Rajesh Talwar & Anr. … Petitioners

 

 

 

Versus

 

C.B.I. & Anr. …Respondents

 

 

 

 

 

 

 

O R D E R

 

 

 

S.A BOBDE, J.

 

 

 

1. This special leave petition has been preferred against the
impugned judgment dated 19.7.2013, passed by the High Court of
Judicature at Allahabad in Application under Section 482 No.20215 of
2013 whereby the petitioners’ prayer for documents pertaining to
scientific tests made in their application 405/Kha dated 11.6.2013
filed under Section 233 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘Cr.PC’) read with Section 91 was
rejected.

 

2. The petitioners are being tried for charges of committing the
murder of their daughter Arushi and their domestic helper Hemraj in
their house. At the initial stage, the investigation was conducted by
the U.P. Police, however, it was later transferred to the Central
Bureau of Investigation (hereinafter referred to as the ‘CBI’). A
closure report was submitted before the Magistrate who disagreed with
it and has issued the process to the petitioners for the charge of
committing the double murder.

 

3. The present stage of the trial is that the evidence of the
prosecution is closed and the statements of the accused are being
recorded under Section 313 Cr.PC. The application in question under
Section 311 for examining 7 other left over witnesses was moved at
this stage. Alongwith this application, another application under
Section 233 Cr.PC read with Section 91 has been moved on 11.6.2013, in
respect of the reports of certain tests conducted on 3 persons who at
one time were suspected accused and had been in police custody,
namely, Krishna, Raj Kumar and Vijay Mandal. By this application, the
petitioners’ sought the following reports:

 

(i) Narco-analysis test reports and CD of Krishna conducted at FSL
Bangalore;
(ii) Narco-analysis test reports and CD of Rajkumar conducted at FSL
Bangalore;
(iii) Narco-analysis test reports and CD of Vijay Mandal conducted at
FSL Bangalore;
(iv) Brain mapping test of Rajkumar conducted at FSL Gandhinagar;
(v) Brain mapping test of Krishna conducted at Bangalore;
(vi) Brain mapping test of Vijay Mandal conducted at Bangalore;
(vii) Lie detector, polygraph test reports of Krishna, Raj Kumar and
Vijay Mandal conducted at CFSL New Delhi, FSL Bangalore, FSL
Gandhinagar;
(viii) Psychological analysis test reports of Krishna, Raj Kumar and
Vijay Mandal conducted at AIIMS, FSL Bangalore, FSL Gandhinagar.
(ix) The Narco-analysis test, brain mapping test, polygraph test and
the psychological tests done at AIIMS, CFSL New Delhi and at FSL
Gandhinagar of the accused Dr. Rajesh Talwar and Mrs. Nupur Talwar.
x) The written opinion / report and its annexures and other related
documents dated 31.7.2008 of the postmortem doctors i.e. Dr. Sunil
Dohre and Dr. Naresh Raj regarding inspection and examination of the
then murder weapon (Khukhri) sent to them by the CBI.

 

In addition, applicants also asked for call records, material
forming the basis of report prepared by PW.6 and sound simulation test
reports.

 

4. These applications were disposed of by the trial Court by order
dated 18.6.2013 allowing them partly.

 

5. Before the High Court, it was contended by the petitioners that
the said reports are essential for the defence since they pertain to
those persons who were at one time suspected as being responsible for
the offence and contain exculpatory statements favouring the
petitioners. According to the petitioners, it is only upon
examination of the reports by the Court that the petitioners will be
able to put up their plea that the crime, in fact, may have been
committed by Krishna, Raj Kumar and Vijay Mandal who were earlier
suspected of the offence and had been interrogated. The High Court
inter-alia rejected the petitioners’ prayer on the ground that the
application is vexatious and intended to only delay the proceedings as
was also found by the trial Court.

 

6. Before us, Shri U.U. Lalit, learned Senior counsel for the
petitioners submitted that the production of the reports pertaining to
the abovenamed 3 persons is absolutely essential and relying on
Section 91 Cr.PC, submitted that the production of these reports being
relevant, the prayer ought to have been allowed by the High Court.
According to Shri Lalit, the reports, if produced, would not breach
either Article 21 read with Article 20(3) which protects the accused
from self-incrimination and/or would not be hit by Section 21 of the
Evidence Act since the persons in respect of whom those reports have
been prepared are not accused anymore. In any case, according to the
learned counsel, the reason given by the High Court that such reports
having been prepared on the basis of statements and data collected in
contravention of Article 20 are premature and this could only have
been found after the reports were produced in courts.

 

7. Shri Siddharth Luthra, learned ASG vehemently opposed the prayer
and submitted that the production of these reports is pointless in
view of the law laid down by this Court in Selvi & Ors. v. State of
Karnataka (2010) 7 SCC 263, wherein such reports are held to be
inadmissible in evidence. The learned ASG further submitted that the
timing of the application and the stage at which it was made clearly
shows that the applications are vexatious and intended to delay the
proceedings which are at a concluding stage. In support of his
contention, Shri Luthra relied on sequence of events which according
to him show that the petitioners have at every stage tried to delay
the proceedings by making one application after the other. The
learned counsel further submitted that even the present special leave
petition is delayed in view of the fact that it is preferred on the
file on 18.9.2013 against the judgment of the Allahabad High Court
which was passed on 19.7.2013. The order of the trial Court was, in
fact, passed on 18.6.2013.

 

8. Shri Lalit, learned Senior counsel for the petitioners submitted
that the petitioners have been occupied in the trial and could not
challenge the order of the High Court earlier.

 

9. After considering the rival submissions on this point, we find
no merit in the contention on behalf of the petitioners that they
could not have approached this Court earlier. There is no reason why
the petitioners ought to have waited from 19.7.2013 to 17.9.2013 to
approach this Court and allowed the trial to proceed even further. We
make this observation in the background of the observation of the High
Court that even the initial applications were made at a stage where
the prosecution evidence had been concluded and the defence had
entered and almost concluded its evidence. In fact, the petitioners
had, without raising any objection that the reports and documents
allegedly proved by the witnesses have not been supplied to them or
made part of the Court record, participated in the examination and
cross-examination of two witnesses. We might note that criminal
courts are not obliged to accede to the request made by any party to
entertain and allow application for additional evidence and in fact,
are bound in terms of Section 233(3) Cr.PC. to refuse such request if
it appears that they are made in order to vex the proceedings or delay
the same. It is also pertinent to mention here that the learned Trial
Judge who has been conducting the trial is likely to retire very soon.
Relevant part of the Trial Court proceedings as well as Trial Court’s
orders thereto are given as under:

 

a. Accused filed application dated 22.07.2013 in Trial Court for
adjournment to produce their defence witness. They moved application
dated 06.8.2013 in Trial Court for direction to CBI to produce
document, Tabulated chart etc.
b. Trial Court passed order dated 12.08.2013 rejecting the
application for supplying of tabular charts.
c. Accused moved application dated 02.09.2013 in Trial Court to
call PW-6 Dr.B.K.Mahapatra, CFSL, Bio Division, to file an affidavit.
d. Trial Court passed order dated 03.09.2013 rejecting the prayer
to call upon Dr.B.K.Mahapatra to file affidavit.
e. Trial Court passed order dated 03.09.2013 directing the accused
to produce the defence witnesses from foreign country on the next
date or through video conferencing.
f. Accused moved application dated 07.09.2013 for adjournment to
produce defence witness from foreign country.
g. Accused moved application dated 12.09.2013 in Trial Court for
exhibiting documents.
h. Accused moved application to recall Dr. B.K. Mahapatra for his
further cross examination.
?i. Seventh DW examined.

 

j. Accused filed another application for re-examination of DW-7
(Dr.Andrei Semikhodskii).
k. Trial Court dismissed the aforesaid application for re-
examination of Dr.B.K.Mahapatra and posted the case for final
arguments i.e stage of 233 Cr.P.C. is crossed.
It may be pertinent to note that petitioners took 04 months to
produce 7 DWs after the closing of statement u/s 313 Cr.PC. On
25.09.2013 case was fixed for final arguments but accused moved
applications u/s 233 Cr.PC.
l. Accused moved application U/s 233 Cr.P.C. dated 26.09.2013 in
Trial Court to send physical exhibit Khukri abroad for re-examination.

 

m. Trial Court passed order dated 28.09.2013 dismissing the
aforesaid application.
n. Accused moved application U/s 233 Cr.P.C. dated 30.09.2013 in
Trial Court to file disclosure statements of Krishna, Vijay Mandal and
Rajkumar. Case adjourned to 1.10.2013 for objections and arguments on
the application. Petitioners moved another application U/s 233 Cr.P.C.
dated 30.09.2013 in Trial Court for summoning witnesses of lOs of CBI,
UP Police and private persons as defence witnesses. Case adjourned to
1.10.2013 for objections and arguments on the application.
o. On 1.10.2013, petitioners did not argue the applications and one
lawyer informed the court that their counsel is ill and obtained
adjournment.

 

10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka
& Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013,
after referring to its earlier judgments in Smt. Triveniben v. State
of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh (5) v. State of
Gujarat, AIR 2006 SC 1367; Capt. Amarinder Singh v. Parkash Singh
Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State
(Govt. of NCT of Delhi), AIR 2012 SC 750; and Natasha Singh v. CBI,
(2013) 5 SCC 741, dealt with the issue of fair trial observing:

 

“Fair trial is the main object of criminal procedure and
such fairness should not be hampered or threatened in any
manner. Fair trial entails the interests of the accused, the
victim and of the society. Thus, fair trial must be accorded
to every accused in the spirit of right to life and personal
liberty and the accused must get a free and fair, just and
reasonable trial on the charge imputed in a criminal case.
Any breach or violation of public rights and duties adversely
affects the community as a whole and it becomes harmful to
the society in general. In all circumstances, the courts
have a duty to maintain public confidence in the
administration of justice and such duty is to vindicate and
uphold the ‘majesty of the law’ and the courts cannot turn a
blind eye to vexatious or oppressive conduct that occurs in
relation to criminal proceedings.

 

Denial of a fair trial is as much injustice to the
accused as is to the victim and the society. It necessarily
requires a trial before an impartial judge, a fair prosecutor
and an atmosphere of judicial calm. Since the object of the
trial is to mete out justice and to convict the guilty and
protect the innocent, the trial should be a search for the
truth and not a bout over technicalities and must be
conducted under such rules as will protect the innocent and
punish the guilty. Justice should not only be done but
should be seem to have been done. Therefore, free and fair
trial is a sine qua non of Article 21 of the Constitution.
Right to get a fair trial is not only a basic fundamental
right but a human right also. Therefore, any hindrance in a
fair trial could be violative of Article 14 of the
Constitution.

 

xx xx xx xx

 

Article 12 of the Universal Declaration of Human Rights
provides for the right to a fair trial what is enshrined in
Article 21 of our Constitution. Therefore, fair trial is the
heart of criminal jurisprudence and, in a way, an important
facet of a democratic polity and is governed by rule of law.
Denial of fair trial is crucifixion of human rights.”

 

11. Thus, from the afore-stated facts, it is evident that
petitioners have been adopting dilatory tactics on every moment. The
impugned order was passed on 19.7.2013. This petition was filed after
about two months.

 

12. In view of the above, we are of the considered opinion that
facts and circumstances of the case do not warrant any interference.
The special leave petition is accordingly dismissed.

 

…………………….………………..J.
(DR. B.S. CHAUHAN)

 

 

 

………….………………………J.
(S.A. BOBDE)

 

New Delhi,
October 8, 2013

 

———————–
11

 

 

 

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