Criminal Law Journal 1960-2008

Criminal Revn. No. 280 of 2003, D/- 8 -7 -2003.

2-Sanjay Gupta, against the order dated 8-4-2003, passed

by IInd Addl. Sessions Judge, Mhow, (Smt. S. B. Rehman)
in S.T. No. 383/2002, whereby rejected the prayer of the
applicant for grant of time to appear and examine witness
Komalbai, mother of deceased daughter and for issuance of
direction to the prosecution to produce the letters written by
the deceased seized during investigation by the police and
also sent for examination by handwriting expert.

Rameshchandra Agrawal, Petitioner v. State of M.P. and

others, Respondents.

2. The important facts giving rise to this revision are as

follows :-

Criminal P.C. (2 of 1974), S.91, S.311 - Production of

documents - Duty of Court - Offence for abetment of
suicide and ill-treatment for demand of dowry
registered against accused-husband and in-laws Mother of deceased was an important witness to whom
deceased used to disclose factum of ill-treatment Mother not examined - Letters written by deceased
prior to her death to her parents seized but not
produced before Court - Role of A.G.P. held, is
condemnable - In such case it was onerous duty of
Court to direct concerned investigation agency to take
effective steps for bringing all those letters with
handwriting expert report for filing before Court - But
trial Court left case at mercy of A.G.P. and acted
merely as an umpire instead of using its power u/Ss. 91,
311, Cr.P.C. and u/S. 165, Evidence Act - Order of trial
Court set aside - High Court directed examination of
mother as witness and production of said letters. (Paras
11, 13, 16, 17)

3. The applicant's daughter Geeta was married with

respondent No. 2-Sanjay Gupta and died in the house of her
in-laws because of burn injuries. On report, police has
investigated the matter and filed the charge-sheet against
the non-applicant Nos.2 to 8 for the offences u/Ss. 498-A,
306/34, I.P.C. It is alleged by the prosecution that she met
unnatural death/committed suicide because of ill-treatment
for demand of dowry. In the charge-sheet, mother of the
deceased named Komalbai is one of the important witness
before whom deceased used to disclose about ill-treatment
and demand of dowry. Along with charge-sheet, police has
also filed seizure memo regarding seizure of number of
letters written by deceased to her parents during her lifetime
describing the events. Police has also filed the letter/memo
regarding sending of the seized letters to handwriting
expert. But these original letters and handwriting expert
report were not filed by the prosecution during the course
of trial and A.G.P. and In-charge of the case Shri N. C. Pant
did not try to secure these letters and expert report prior to
commencing of trial or during trial.

2004 CRI. L. J. 721

MADHYA PRADESH HIGH COURT
(INDORE BENCH)
S. L. KOCHAR, J.

Cases Referred :
Chronological Paras
Raju alias Rajendra Prasad v. State of M.P., 2002 Cri LJ
2367 (Madh Pra)
7, 9, 11
Shiv Kumar v. Hukum Chand, (1999) 7 SCC 467 : (1999) 6
JT (SC) 385
15
Imran Khan v. State of Madhya Pradesh, 1995 Cri LJ 17 :
1994 MPLJ 862
7, 8, 11
Mukul Dalal v. Union of India, (1988) 3 SCC 144 : (1988)
2 JT 280
15
Ramchander v. State of Haryana, 1981 Cri LJ 609 : AIR
1981 SC 1036
8
K. C. Sud v. S. C. Gudimani, 1981 Cri LJ 1779 (Delhi) 14
Vivek Singh, for Petitioner; G. Desai, Dy. A.G., for
Respondent No. 1; Umesh Maheshwari, Advocate, for
Respondents Nos. 2 to 8; N. C. Pant, A.G.P. is present in
person.
@page-CriLJ722

Judgement
ORDER :- This revision has been filed by the father of
deceased-daughter, who was married with respondent No.

(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

3A. On 8-4-2003, the learned trial Court has received

unserved bailable warrant with the note that witness Smt.
Komalbai is sick and admitted in some hospital. Her
husband-applicant-Rameshchandra Agrawal has filed an
application before the trial Court seeking time for
appearance and examination of witness Komalbai because
she was unable to appear on 8-4-2003 since she was
admitted in Sasi Nursing Home for treatment because of
chest pain. He has also filed certificate dated 7-4-2003 duly
issued by the In-charge of the said Nursing Home. He has
also filed an application for grant of time to get
appointment of Special Prosecutor to conduct the
prosecution in the present case.
4. Unfortunately, the A.G.P. Shri N. C. Pant instead of
supporting the applicant for grant of time to examine
witness Komalbai and to produce letters and handwriting
expert report which are very important and material
evidence for just decision of the case, submitted that the
summons and bailable warrant issued to this witness were
received back unserved and she was not available. This
shows that she has no interest in the case to appear as
witness on the point for which she was to be examined
before the Court and cited as a witness by the prosecution
and some witnesses have been examined on same point.
Therefore, now prosecution did not wish to examine and

Criminal Law Journal 1960-2008

given up this witness. On this date, the A.G.P. Shri Pant has
also closed the prosecution case. On the application filed by
the applicant regarding issuance of direction for production
of original letters written by deceased and its handwriting
expert report in the Court by the prosecution, A.G.P. has
submitted that he had already got exhibited seizure memo
of the letters but no such original letters and handwriting
expert report were available with him in the case diary. On
the basis of this statement of the A.G.P., the learned trial
Court has rejected the application and fixed the case for
accused statement on 23-4-2003.
5. I have heard Shri Vivek Singh, learned counsel for
applicant, Shri G. Desai, learned Dy. A.G. for
non-applicant No. 1-State, Shri Umesh Maheshwari,
learned counsel for non-applicants Nos. 2 to 8 and Shri N.
C. Pant, A.G.P. present before this Court in person.
6. Now the crucial and important question before this Court
is whether the A.G.P. has properly, effectively and
consciously discharged his duty to bring all material and
important evidence before the Court which is necessary for
just decision of the case and whether the learned trial Court,
after knowing these facts and the fact that witness Komalbai
is an important and material witness in the fact and
circumstances of the case, being mother of
deceased-daughter and letters written by the deceased prior
to her death were seized by the police and also
@page-CriLJ723
sent for handwriting expert examination but all those
original letters and expert report was not filed, right in
rejecting the application filed by the applicant and allowing
the prayer of A.G.P. to close the prosecution case.
7. Before dealing and answering both these questions, this
Court would like to refer two important judgments. One is
rendered by Division Bench of this Court in case of Imran
Khan v. State of Madhya Pradesh, 1994 MPLJ 862 : (1995
Cri LJ 17) and second one is rendered by single Bench of
this Court in case of Raju alias Rajendra Prasad v. State of
M.P., 2002 Cri LJ 2367. In both these judgments, this
Court has in detail dealt with sacrosanct duty of prosecutor,
who is in-charge of the case and power of the trial Court
u/S. 311, Cr. P.C. and u/S. 165 Evidence Act. Copies of
both these judgments were also directed to circulate in
pursuance of the administrative order passed by the Hon'ble
the Chief Justice to all Sessions Judges of this State.
8. In the case of Imran Khan (1995 Cri LJ 17) (supra). In
paragraph 14, Division Bench of this Court has considered
and reproduced the observation made by Supreme Court in
case of Ramchander v. State of Haryana, AIR 1981 SC
1036 : (1981 Cri LJ 609), as follows (paras 2 and 3) :"The adversary system of trial being what it is there is an
unfortunate tendency for a Judge presiding over a trial to
assume the role of a referee or an umpire and to allow the
trial to develop into a contest between the prosecution and
(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

the defence with the inevitable distortions flowing from

combative and competitive elements entering the trial
procedure. If a Criminal Court is to be an effective
instrument in dispensing justice, the presiding Judge must
cease to be a spectator and a mere recording machine. He
must become a participant in the trial by evincing intelligent
active interest by putting questions to witnesses in order to
ascertain the truth. But this he must do without unduly
trespassing upon the functions of the public prosecutor and
the defence counsel, without any hint of partisanship and
without appearing to frighten or bully witnesses. Any
questions put by the Judge must be so as not to frighten,
coerce, confuse or intimidate the witnesses."
9. In the case of Raju alias Rajendra Prasad (2002 Cri LJ
2367) (supra), this Court has in detail dealt with the power
of trial Court u/S. 311, Cr. P.C. and u/S. 165 of Evidence
Act. Under these provisions, the learned trial Court has
ample power and discretion to interfere and control the
conduct of trial properly, effectively and in the manner as
prescribed by law. But it appears that the learned trial Court
has not made proper use of both these judgments which
were circulated for their future guidance.
10. For the purposes of production of important and
material documents, yet there is one more provision in Cr.
P.C. i.e. S. 91, Cr. P.C. which empowers the trial Court to
issue direction to concerned person to produce the
documents. Section 91 reads as under :91. Summons to produce document or other thing.- (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.
(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.
(3) Nothing in this Section shall be deemed(a) to affect Ss. 123 and 124 of the Indian Evidence Act,
1872 (1 of 1872), or the Bankers' Books Evidence Act,
1891 (13 of 1891), or
(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.
11. In the present case, there is no dispute that letters
alleged to have been written by the deceased were seized

Criminal Law Journal 1960-2008

during the course of investigation and its seizure memo has

been filed and exhibited. During the course of arguments
before this Court, this
@page-CriLJ724
Court has also put a very specific question to learned Dy.
A.G. Shri Desai and A.G.P. Shri Pant that whether any
letter/memo was sent for sending these letters to
handwriting expert for examination and seeking report,
written by Investigating Officer or concerned S.P., is
available. They have submitted that such letter is available
in the case diary and also filed with the charge-sheet. In
view of this, these letters are very important which can help
the trial Court for just decision of the case because these
letters were alleged to have been written by the deceased
prior to her death. If these letters are found to be written in
the handwriting of deceased, then, its contents may go in
favour or against the accused and same will give immense
assistance for digging out the truth by the Court. But the
Court has left the case at the mercy of the A.G.P. and acted
merely as an umpire instead of using its power u/Ss. 91,
311, Cr. P.C. and u/S. 165, Evidence Act and especially
when such kind of passiveness of the Court during the
course of trial has been condemned by this Court in
judgments of Imran Khan (1995 Cri LJ 17) (supra) and
Raju alias Rajendra Prasad (2002 Cri LJ 2367) (supra).
12. This Court expresses its great dissatisfaction regarding
functioning of the Addl. Sessions Judge, Mhow, before
whom this trial is pending. It appears that the learned Addl.
Sessions Judge has not gone through both the judgments
and also not aware of the above mentioned provisions in Cr.
P.C. and Evidence Act empowering the Court to deal such a
contingency especially when prosecution and A.G.P. is not
handling the prosecution effectively for helping the Court to
come to the right and true conclusion and for just decision
of the case.
13. In the present case, role of the A.G.P. is also
condemnable. Though witness Komalbai was not served at
any time, yet he has given up this witness. As it is
mentioned above, she is the mother of the deceased and can
throw sufficient light in the case. The learned A.G.P.
knowing well that the letters said to have been written by
the deceased prior to her death were seized and also sent for
handwriting expert, did not make any effort to produce the
same before the Court. It was his onerous duty to direct the
concerned investigating agency to take effective step for
bringing all those letters with handwriting expert report for
filing before the Court. He has not done so and on the
contrary the poor father of the deceased-daughter was
required to rush to the Court and praying for production of
these letters and handwriting expert report on which A.G.P.
has not supported him and simply submitted that letters and
handwriting expert report are not available and are not in
his possession.
14. The Delhi High Court in the case of K. C. Sud v. S. C.
(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

Gudimani, 1981 Cri LJ 1779 has held that the Public

Prosecutor, the Additional Public Prosecutor and the
Assistant Public Prosecutor hold an office. The learned
Judge said that (at p. 1785 of Cri LJ) :"It is public office of trust and, therefore, like any other
public office, is susceptible to misuse and corruption if not
properly insulated. It is an office of responsibility more
important than many others because the holder is required
to prosecute with detachment on the one hand and yet with
vigour on the other."
15. This judgment has been considered and approved by the
Supreme Court in the case of Mukul Dalal v. Union of
India (1988) 3 SCC 144 while considering the duty and
responsibility of Public Prosecutor and Assistant Public
Prosecutor. Again the Supreme Court in the case of Shiv
Kumar v. Hukum Chand (1999) 7 SCC 467 has in detail
enunciated the role and duty of Public Prosecutor.
16. Though, the law is very clear regarding role and duty of
prosecutor and power of the trial Court regarding its
interference and control of the trial and from time to time
Supreme Court and this High Court has also elaborately
clarified and dealt with such matters, copies of judgments
were also circulated to the Sessions Judges to go through
the judgment and make proper use of it whenever occasion
comes but the impugned order and act of the A.G.P. as well
as the trial Court is clearly establishing that they have not
taken any pain to go through all these provisions and
judgments thereon. It is really a pathetic situation and a
matter of great regret that a case of bride burning is being
handled by the A.G.P. in such a manner and the learned
trial Court is keeping silence over the matter.
17. In the wake of above factual and legal analysis, the
impugned order passed by
@page-CriLJ725
the trial Court is set aside and its directed that the witness
Komalbai be examined as prosecution witness and
prosecution is also directed to produce seized original
letters said to have been written by the deceased along with
handwriting expert report within a reasonable period and
concerned S.P. is also directed to look into the matter for
production of all these letters and handwriting expert report
before the trial Court within one month.
18. The revision is allowed in the terms as indicated above.
Revision allowed.