- (1.) THIS revision under section 397/401 Cr.P.C. is directed against order dated 4.2.2013 passed by Special Judge / Additional Sessions Judge, Bijnor in special case no.34 of 2009 (State Vs. Yashdev & others) under section 135 of the Electricity Act, P.S. Kotwali City, District Bijnor whereby application 159-Kha under section 233 (3) Cr.P.C. was partly allowed and partly rejected. Heard Sri B.C. Rai and Sri Prateek Kumar, learned counsel for the revisionist, learned A.G.A. for the State, Sri Nripendra Mishra, Standing Counsel for Paschimanchal Vidyut Vitran Nigam Ltd. having its Office at Meerut and perused the records. There is no need to issue notice to opposite party no.2, who lodged the FIR on behalf of opposite party no.3 and has now retired as Chief Engineer.
(2.) LEARNED counsel for the revisionist submitted that the revisionist and his company are being prosecuted for theft of electricity on the ground that at the time of checking by the departmental officers and officials, meter system was found tampered and theft of electricity was being committed. In this respect, the officers of opposite party no.3, who were examined as prosecution witnesses, were also proceeded against by their own department for misconduct and in an inquiry proceedings, they deposed that no theft of electricity was detected and the inquiry report is required to be summoned as defense evidence. Learned counsel for the revisionist further submitted that earlier, during the course of prosecution evidence, an application for summoning the documents under section 91 Cr.P.C. was moved before the trial court and the same was rejected vide order dated 11.10.2012. The said order was challenged by the revisionist by means of application u/s 482 Cr.P.C. no.41923 of 2012, which was dismissed on 3.1.2013 with the following observations : "Accordingly this petition is dismissed. However, the applicant may move an application at the appropriate stage of defense to summon the documents so required and the same shall be considered by the learned court below in accordance with law." Learned counsel submits that when the case came to the stage of defense evidence, the application under section 233 (3) Cr.P.C. was moved for summoning various documents and witnesses. The application was partly allowed by the trial court. The documents mentioned in paras 1 to 4 of the impugned order were permitted to be summoned, but the trial court rejected the application in respect of the inquiry committee report submitted in the Chairmanship of Sri Basant Singh, Chief Engineer. The said inquiry report no.928 is essential for just decision of the case, as therein the same witnesses, who are deposing against the revisionist in Court, stated during inquiry that no theft was committed by the revisionist or no theft was detected during the raid.
(3.) LEARNED counsel for opposite party no.3 has supported the impugned order and submitted that the said inquiry report is not necessary for just decision of the case. There is no dispute that inquiry report no.928 was held against the prosecution witnesses on the charge of misconduct on their part. One of the misconduct was the alleged raid at the premises of the revisionist. In these circumstances, the said inquiry report and the statements recorded therein cannot be said to irrelevant for the purposes of this trial. At least, the inquiry report contains the previous statements of the prosecution witnesses. Learned trial Judge, without considering the true import of the document sought to be summoned, refused to summon the same on the ground that the application has been moved simply to delay the disposal of the case. I do not find any justification for such an observation. The case is pending since 2009. Till late 2012, the case was fixed for prosecution evidence and has recently reached the stage of defense evidence. A right to adduce defense evidence cannot be curtailed on flimsy grounds unless the Court finds that a deliberate attempt is being made to delay the disposal of the trial. It is evident from the impugned order that certain documents sought by the revisionist were ordered to be summoned by the trial court, which are mentioned in paras 1 to 4 of the impugned order. In these circumstances, there was no harm if the documents mentioned in para 5 of the impugned order i.e. inquiry report no.928 submitted by Sri Basant Singh, Chief Engineer, convener of the inquiry committee, should also have been summoned by the trial court through such an employee of the department, who was well conversant with the signatures of the signatories of the inquiry report. This Court need not emphasize time and again that a criminal trial means a fair trial. Prosecution as well as the defense stand on the same pedestal before the Court, but in practice, we often find that the Courts have one approach for the prosecution, but another for the defense. Such attitude should neither be adopted nor practiced and cannot be appreciated. An accused in a criminal case has a right to bring on record all such material which may prove his innocence or may disapprove the prosecution case. After hearing learned counsel for the parties and going through the impugned order as well as the documents available on record, I am of the opinion that the application 159-Kha moved on behalf of the revisionist should also have been allowed in respect of the inquiry report no.928 submitted by the inquiry committee convened under the Chairmanship of Sri Basant Singh, Chief Engineer. The revision is accordingly allowed.;