- (1.) AMAR Saran, J. This application has been filed with the prayer to direct the respondent to produce both the case diaries of Crime No. 642 of 1979, police station Civil Lines, Aligarh as well as to produce the original copies of certain affidavits sworn by some persons and to bring on record of S. T. No. 405 of 1982 (State v. Deo Dutt Kalanki and others), under sections 302/201 IPC, police station Civil Lines, district Aligarh and to set aside the order dated 16. 10. 2007 whereby the Court had refused to summon Prem Das, the Court Moharrir of Chief Judicial Magistrate's Court.
(2.) HEARD Shri Sukhendu Pal Singh, learned Counsel for the applicants and learned Additional Government Advocate and perused the application and the impugned order. It was argued by the learned Counsel for the applicants that by non-production of the case diaries, the defence would automatically be prejudiced and it was incumbent on the Trial Court to have allowed the application for summoning Prem Das as a witness of defence in view of section 233 (3) of the Code of Criminal Procedure. All the 161 Cr. P. C. statements of the twenty eight persons cited as witnesses in the charge-sheet, which were not supplied and only the statements of eight persons, namely, Daulat Ram, Babu Lal, Rajendra Kumar, Mahesh Chandra, Khem Chandra, Kali Charan, Chandra Pal, Babu Lal recorded by the CBCID were supplied, but the statements recorded by the local police were not supplied. Out of these eight persons, the prosecution has produced four persons, i. e. Daulat Ram, Babu Lal, Rajendra Kumar and Khem Chandra. Three other persons, namely, Jagdish Prasad, Ram Gopal Chaturvedi and Teeka Ram Malik were produced by the prosecution, but their 161 Cr. P. C. statements were not supplied. My attention was drawn to a line in a cross-examination of one defence witness Teeka Ram, a retired police officer, who investigated the case for some time on behalf of the CBCID. He stated that without the case diary, he was not able to depose about the fact of the case and the said witness was thereafter discharged.
(3.) THERE was also said to be some conflict in the statements recorded by the initial Investigating Officer, Shri D. K. Kaushik, who was not examined and the statements given by the witnesses in Court. An application to this effect was moved on 17. 8. 1986. What transpires on that application was, however, not mentioned. Learned Additional Government Advocate, however, stated that it is mentioned in the impugned order that no application was even moved for summoning Prem Das as a witness for defence and that if the Court considers the production of Prem Das was necessary, an application should have been moved by the accused at the initial stage itself. If the accused were not clear about the name of Constable Prem Das, who is said to have the custody of the case diaries, they could have moved an application stating that the Court Moharrir, who has brought the case diaries to the Court should be examined as a witness. Even in an earlier application, which was moved in the High Court for summoning certain witnesses, the name of Constable Prem Das was neither mentioned by name or as the Court Moharrir of the Court who has brought the case diaries to the Court.;