# Mohd. Azam Khan v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1047
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-25
- **Case number:** Application U/S 482. No. 14477 of 2023
- **Bench:** Rajeev Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-azam-khan-v-state-of-u-p-anr-50917
- **Pages:** 21

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 54-A, 161, 173(2), 362 &
482 - Indian Penal Code, 1860 - Sections
171-(g)
&
504
-
Representation
of
Peoples Act, 1951 - Section 125 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Sections 3(1)(X) - Indian Evidence Act, -
Sections 65-B & 165 - Application U/s 482
Cr.P.C. - challenging two judicial orders related
to Special Sessions Trial - stemming from a
2007 incident - a derogatory speech violating
the model code of conduct and hurting
sentiments of a community - FIR - offence
under sections 504 and 171(G) of IPC and
under section 125 of the Representation of
Peoples Act, and Section 3(1)(X) of the SC/ST
Act - investigation - a video cassette of the
speech was recovered - St.ments from officials
and the recording studio owner confirmed its
authenticity - forensic analysis of the cassette
was delayed due to procedural issues, and no
report was submitted and the cassette was not
included in the charge sheet but kept in the
case diary - Trial commenced - charge-sheet -
court later directed Applicant to provide a voice
sample to verify the cassette's contents, which
he unsuccessfully sought to recall through a
separate application - the Court upheld the
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
order directing accused-applicant to provide his
voice sample for forensic comparison with a
disputed
cassette
allegedly
containing
a
derogatory speech made in 2007 - further court
held that, the voice sample would aid in truth
discovery and could benefit the accused -
However, the Court sustained the applicant's
objection
regarding
procedural
compliance
under Section 65-B of the Evidence Act,
directing that a certificate be obtained from the
recording studio proprietor, authenticating the
cassette - Once this certificate is submitted, the
accused must comply with the voice sample
order - considering the above, the application is
disposed of.
(Para - 32, 44, 46, 48, 49)

Application Disposed of. (E-11)

List of referred Cases: -

## Text

_Characters 0–39,466 of 69,164. This is a partial read: ask again with offset=39466 for what follows._

3 All. Mohd. Azam Khan Vs. State of U.P. & Anr.
1047

The person who was induced
should be intentionally induced to deliver
any property to any person or to consent
that any person shall retain any property,
or the person who was induced should be
intentionally induced to do or to omit to do
anything which he would not do or omit if
he were not so deceived.

Thus,
a
fraudulent
or
dishonest
inducement is an essential ingredient of
the offence under Section 415 IPC. A
person who dishonestly induced any
person to deliver any property is liable for
the offence of cheating. "

8. As per the observation of the Apex
Court as mentioned in Archana Rana's
case, for making out a case under Section
420 I.P.C., there must be element of
cheating as defined under Section 415
I.P.C., therefore, cheating is an essential
ingredient for an act to constitute an
offence
under
Section
420
I.P.C.
Fraudulent or dishonest inducement is an
essential ingredient of the offence under
Section 415 I.P.C. In the present case
element of cheating is missing as there is
allegation of violation of agreement.

9. In view of the facts and
circumstances of the case, from the perusal
of the record and after considering the
submissions advanced by learned counsel
for the parties, this Court is of the view that
no case under Section 420 I.P.C. is made
out against the applicant and a dispute of
purely civil nature between the parties has
been converted into criminal prosecution of
the applicant at the behest of opposite party
no. 2, therefore, the entire proceedings of
the aforesaid case is hereby quashed.

10.

The
present
482
Cr.P.C.
application stands allowed.
----------
(2024) 3 ILRA 1047
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.07.2023

BEFORE

THE HON'BLE RAJEEV MISHRA, J.

Application U/S 482. No. 14477 of 2023

Mohd. Azam Khan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Syed Imran Ibrahim

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 54-A, 161, 173(2), 362 &
482 - Indian Penal Code, 1860 - Sections
171-(g)
&
504
-
Representation
of
Peoples Act, 1951 - Section 125 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Sections 3(1)(X) - Indian Evidence Act, -
Sections 65-B & 165 - Application U/s 482
Cr.P.C. - challenging two judicial orders related
to Special Sessions Trial - stemming from a
2007 incident - a derogatory speech violating
the model code of conduct and hurting
sentiments of a community - FIR - offence
under sections 504 and 171(G) of IPC and
under section 125 of the Representation of
Peoples Act, and Section 3(1)(X) of the SC/ST
Act - investigation - a video cassette of the
speech was recovered - St.ments from officials
and the recording studio owner confirmed its
authenticity - forensic analysis of the cassette
was delayed due to procedural issues, and no
report was submitted and the cassette was not
included in the charge sheet but kept in the
case diary - Trial commenced - charge-sheet -
court later directed Applicant to provide a voice
sample to verify the cassette's contents, which
he unsuccessfully sought to recall through a
separate application - the Court upheld the
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
order directing accused-applicant to provide his
voice sample for forensic comparison with a
disputed
cassette
allegedly
containing
a
derogatory speech made in 2007 - further court
held that, the voice sample would aid in truth
discovery and could benefit the accused -
However, the Court sustained the applicant's
objection
regarding
procedural
compliance
under Section 65-B of the Evidence Act,
directing that a certificate be obtained from the
recording studio proprietor, authenticating the
cassette - Once this certificate is submitted, the
accused must comply with the voice sample
order - considering the above, the application is
disposed of.
(Para - 32, 44, 46, 48, 49)

Application Disposed of. (E-11)

List of referred Cases: -

1. Arjun Panditrao Khotkar Vs Kailash Kushanrao
Gorantyal & ors.- 2020 vol. 7 SCC 1,

2. Ritesh Sinha Vs St. of UP & anr.- 2019 vol. 8
SCC 1.

3. Sharda Vs Dharmpal - 2003 vol. 4 SCC 493.

(Delivered by Hon'ble Rajeev Mishra, J.)

1. This application under Section 482
Cr.P.C. has been filed by accused-applicant
Mohd. Azam Khan challenging the order
dated 29.10.2022, passed by Additional
Sessions Judge/Special Judge (M.P./MLA),
Court No.4, Rampur in Special Sessions
Trial No.37 of 2018 (State Vs. Mohd.
Azam Khan), under Sections 504 and
171(G) IPC, Section 125 Representation of
Peoples Act, 1951 and Section 3(1)(X)
SC/ST Act, police station Tanda, district
Rampur, whereby a direction has been
issued to the accused-applicant to give his
voice sample so that the Director F.S.L.,
Moradabad could examine the voice of the
audio cassette to ascertain as to whether the
inflammatory/derogatory speech recorded
in the audio cassette is that of the accusedapplicant and the order dated 22.11.2022,
whereby the application (paper no.43 kha)
filed by the accused-applicant for recall of
order dated 29.10.2022 has been rejected.

2. Heard Mr. Syed Imran Ibrahim, the
learned counsel for applicant, Mr. Mahesh
Chandra Chaturvedi, the learned Additional
Advocate General assisted by Mr. Manu
Raj Singh, the learned A.G.A.-I and Mr.
Prashant Kumar, the learned A.G.A. for
State.

3. Record shows that in respect of an
incident, which is alleged to have occurred
on 07.08.2007, a delayed F.I.R. dated
08.08.2007 was lodged by first informantopposite party-2, namely, Dheeraj Kumar
Sheel and was registered as Case Crime
No.959 of 2007, under Sections 504 and
171(G) IPC, Section 125 Representation of
Peoples Act, 1951 and Section 3(1)(X)
SC/ST Act, police station Tanda, district
Rampur. In the aforesaid F.I.R., applicant
has been nominated as solitary named
accused.

4. The gravamen of the allegations
made in the F.I.R. is to the effect that on
07.08.2007, accused-applicant, who was
member of Legislative Assembly and a
leader of Samajwadi Party, made a speech,
which was derogatory, inasmuch as, the
words used were offensive in nature as they
caused hurt to the sentiments of a particular
community and further the said act of the
accused-applicant violated the model code
of
conduct, issued
by
the
Election
Commission.

5. After aforementioned F.I.R. was
lodged, Investigating Officer proceeded
with statutory investigation of concerned
Case Crime number in terms of Chapter
3 All. Mohd. Azam Khan Vs. State of U.P. & Anr.
1049
XII
Cr.P.C.
He
examined
the
first
informant and other witnesses by recording
their statements under Section 161 Cr.P.C..
During course of investigation, statement
of Gulab Rai-Naib Tehsildar was also
recorded by the Investigating Officer on
21.07.2007. This witness in his statement
before the Investigating Officer has stated
that the entire event which occurred on
07.08.2007
including
the
inflammatory/derogatory speech of the
accused was recorded and the CD cassette
of the same was handed over to the Station
Officer of the concerned police station,
namely, M.P. Singh.

6. Record further shows that second
statement of aforesaid witness, namely,
Gulab Rai was recorded on 11.01.2008, in
which he has stated that the services of one
Sanjay, who runs a studio by the name of
Pooja Cassette Centre, were taken to record
the entire event. This witness further stated
that the entire event was video-graphed by
the proprietor of aforementioned firm,
namely, Sanjay and the video cassette of
the same was submitted by him on
09.08.2007 to the police officials.

7. Subsequently, the statement of
Sanjay, proprietor of Pooja Cassette Centre,
was recorded. This witness in his statement
has categorically stated that the event
which
occurred
on
07.08.2007
was
recorded by him on the instructions of
Gulab Rai, Naib Tehsildar. After recording
was completed, the video cassette was
handed over by him to Gulab Rai, Naib
Tehsildar.

8. After the aforesaid video cassette
was received by the Investigating Officer, it
appears that an application was filed before
court below seeking permission of the court
to have voice sample of the accusedapplicant so that the veracity of the
recovered cassette as to whether the voice
recorded therein is that of accused or not
could be examined by the Forensic Science
Laboratory (here-in-after shall be referred
as 'F.S.L.'). It appears that no orders were
passed on this application. The said fact
derives its sustenance from the recital
contained at page 107 of the paper book.
Record further shows that the recovered
cassette was sent to F.S.L., Lucknow but
was returned with the observation that
same be sent to F.S.L., Chandigarh. It is
apposite to mention here that thereafter the
same was sent to F.S.L., Chandigarh for
examination but the same was again
returned with an objection that it would not
be possible to examine the veracity of the
cassette
without
proper
documentation/form.

9. From the above conspectus, it is
thus clear that during the course of
investigation, no forensic report was
submitted with regard to the disputed
cassette.

10. Ultimately, the Investigating
Officer
submitted
charge-sheet
dated
02.03.2009. However, the disputed cassette
was not made part of the charge-sheet but
remained part of the case-diary, as the
recovery memo of the same had been duly
prepared. Resultantly, the disputed cassette
was deposited in the Malkhana of the
concerned police station.

11. After aforementioned chargesheet dated 02.03.2009 was submitted, the
court concerned took cognizance upon
same and simultaneously summoned the
applicant. Resultantly, Special Sessions
Trial no.37 of 2018 came to be registered in
the
court
of
Additional
Sessions
Judge/Special Judge (M.P./M.L.A), Court
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
No.4, Rampur. The concerned Sessions
Judge framed charges against the accusedapplicant.

12. The accused-applicant denied the
charges so framed and pleaded innocence.
Consequently,
the
trial
procedure
commenced.

13. The prosecution in discharge of its
burden to bring home the charges so
framed
against
the
accused-applicant,
adduced the following witnesses.

PW-1- Subhash Chandra is an
independent witness, but he did not support
the prosecution story and was, therefore,
declared hostile.

PW-2-
Sudesh
is
also
an
independent witness, but he also did not
support the prosecution story and was,
therefore, declared hostile.

PW-3- Banti is an independent
witness, but he has not supported the
prosecution story and was, therefore,
declared hostile.

PW-4- Naresh is an independent
witness, but he did not support the
prosecution story and was, therefore,
declared hostile.

PW-5- Sanjay, who is the owner
of firm, namely, Pooja Cassette Centre was
thereafter examined. This witness in his
deposition categorically stated that on the
direction of Mr. Gulab Rai, the NaibTehsildar, he recorded the entire event
which took place on 07.08.2007 and
thereafter handed over the video cassette to
Mr. Gulab Rai, Naib Tehsildar.

PW-7- Mahendra Pal Singh was
posted as Station House Officer of Tanda
police station, district Rampur at the
relevant point of time. This witness in his
deposition has clearly stated that a public
meeting was organized by the Samajwadi
Party on 07.08.2007, in which accusedapplicant Mohd. Azam Khan made a
speech. This witness further stated that in
the
said
meeting
an
inflammatory/derogatory speech was made
by accused-applicant which caused hurt to
the sentiments of Balmiki community.
However, no immediate action was taken
against the applicant in order to prevent
public peace and tranquillity. Subsequently,
one Dheeraj Kumar Sheel submitted a
written report dated 08.08.2007 on the
basis of which Case Crime No.959 of 2007,
under Sections 504 and 171(G) IPC,
Section 125 Representation of Peoples Act,
1951 and Section 3(1)(X) SC/ST Act,
police station Tanda, district Rampur came
to be registered. According to this witness,
on 09.08.2007, Gulab Rai-Naib Tehsildar
handed over the CD and cassette to him
which was handed over to the Head
Muharir, namely, Viresh and an entry with
regard to the same was also made at serial
number 42 of the General Diary of police
station concerned. During the course of
deposition of this witness, the audio/video
cassette handed over by Gulab Rai-Naib
Tehsildar was produced before the Court in
a sealed cover.

PW-8- Om Prakash was posted
as Circle Officer, Swar, district Rampur at
the relevant point of time. He had
investigated the concerned Case Crime
number. This witness proved the map
prepared by him and accordingly the same
was marked as Ext-Ka-3. This witness in
his deposition has stated that thereafter he
recorded the statement of various witnesses
including that of Gulab Rai-Naib Tehsildar.
He has supported the recovery memo of the
Cassette handed over by Gulab Rai-Naib
Tehsildar. Thereafter, this witness recorded
the statement of Sanjay, proprietor of Pooja
Cassette Centre. He further stated that
thereafter an application was made before
3 All. Mohd. Azam Khan Vs. State of U.P. & Anr.
1051
court below to grant permission for sending
the Cassette to F.S.L., Agra. Subsequently,
the same was sent to F.S.L., Lucknow but
was returned with the observation that the
same be sent to F.S.L., Chandigarh.
Subsequent to above, the Cassette was sent
to F.S.L., Chandigarh but was returned
with certain objections. Thereafter, an
application was moved before the court
concerned to direct the accused-applicant
Mohd. Azam Khan to give his voice
sample so that the veracity of the voice
recorded
in
the
cassette
could
be
ascertained i.e. the same is of accusedapplicant or not. At this stage, this witness
was transferred.

PW-9- Gulab Rai was working as
Naib Tehsildar, Tanda, district Rampur at
the relevant point of time. This witness
deposed before the court concerned that he
had hired the services of a private person to
record the entire incident/event which was
to be held on 07.08.2007 (public meeting of
Samajwadi Party). The person who had
conducted recording of the entire event has
subsequently
handed
over
the
video
cassette to him, which was deposited by
this witness at the concerned police station.
Proceedings with regard to acceptance of
the same at the concerned police station
were done in front of this witness and in
proof thereof signatures of this witness
were obtained.

14. After having gone through paper
no.6-A with regard to the recovery memo
of the CD and Cassette, this witness proved
the same. He further deposed that it
contains his signatures also. Accordingly,
the recovery memo stood proved and was
marked as Ext.Ka-4. After looking at the
cassette, this witness deposed that it is the
same cassette which was given by him.
Accordingly, the cassette was marked as
Material Ext.Ka-1, the plastic bag was
marked as Material Ext.Ka-2 and the white
cloth was marked as Material Ext.Ka-3.
Thereafter, this witness has proved the fact
that information with regard to the speech
made in public meeting held on 07.08.2007
was given to the District Magistrate,
Rampur. He has further deposed that
Dheeraj Kumar Sheel, who belongs to
scheduled caste community, was present at
the time of occurrence and was sitting in a
corner. This witness was also examined by
the court. As certain questions were put to
this witness under Section 165 of Indian
Evidence Act, therefore, the provisions of
Section 165 of the Evidence Act which
have a material bearing on the controversy
in hand as well as the questions put to the
accused by the court need to be noted.
Accordingly, the same are reproduced
herein-under :-

"165. Judge's power to put
questions or order production.-The
Judge may, in order to discover or to obtain
proper proof of relevant facts, ask any
question he pleases, in any form, at any
time, of any witness, or of the parties, about
any fact relevant or irrelevant; and may
order the production of any document or
thing; and neither the parties nor their
agents shall be entitled to make any
objection to any such question or order,
nor, without the leave of the Court, to
cross-examine any witness upon any
answer given in reply to any such question:

Provided that the Judgment must
be based upon facts declared by this Act to
be relevant, and duly proved:

Provided also that this section
shall not authorize any Judge to compel any
witness to answer any question, or to
produce any document which such witness
would be entitled to refuse to answer or
produce under sections 121 to 131, both
inclusive, if the questions were asked or the
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
documents were called for by the adverse
party; nor shall the Judge ask any question
which it would be improper for any other
person to ask under section 148 or 149; nor
shall he dispense with primary evidence of
any document, except in the cases
hereinbefore excepted."

"Question asked by court to
P.W-9 Gulab Rai U/s 165 Evidence Act.

Question-01- The audio cassette
placed by prosecution as Exibit-1 is played
in open court in presence of counsel for
both sides and PW-9 Gulab Rai has been
asked if he identifies the voice ? The
recorded statement was made by whom &
when ?

Ans- Yes, it is the speech of
accused Azam Khan. He had delivered it in
Tanda in year 2007.

Question-02-
Do
you
know
difference
between
audio
&
video
recording ?

Ans- I do not know difference
between audio & video recording.

Question-03- At the spot, audio
recording was done or video recording ?

Ans- At the spot, only voice was
recorded.

Opportunity given to accused for
cross-examination."

15. PW-10- Gyananjay Singh who
was working as Circle Officer, Swar,
district Rampur at the relevant point of time
was also examined. Various questions were
put to this witness by the Court under
Section
165
Indian
Evidence
Act.
Accordingly, the same are extracted hereinunder :-

"U/s 165 Evidence Act - के
तहत कोटु द्िारा पूछे गये प्रश्न-

प्रश्न - क्या कैसेट िस्तु प्रदशग-1
आपने आरोप पत्र के सार्थ न्यायालय में
दाखखल ककया र्था?

Ans- जी नहीिं।

प्रश्न- आप इस के I.O. र्थे आपने
प्रश्नगत कैसेट आरोप पत्र के सार्थ क्यों
नहीिं दाखखल की?

Ans- प्रश्नगत कैसेट का परीक्षण
पूणग नहीिं हो पाया र्था जजसके सलए माननीय
न्यायालय से पूिग वििेचक द्िारा हदनािंक
24.01.2008 को अनुमतत प्राप्त कर के
हदनािंक- 15.02.2008, को एफ०एस०एल०
लखनऊ िेजिाया गया र्था। लखनऊ में
परीक्षण न होने कारण िहािं से चण्डीगढ़
िेजा गया र्था। िहािं से कततपय विन्दुओिं पर
आपवि के सार्थ िापस िेज दी गयी।

प्रश्न- आरोप पत्र दाखखल करते
समय िक्त क्या आपके द्िारा ितौर I.O.
सप्लीमेंटरी
इन्िेस्टीगेशन
की
सूचना
न्यायालय को दी गयी या सप्लीमेंटरी
इनिेस्टीगेशन की अनुमतत मािंगी गयी?

Ans - सूचना नहीिं दी गयी।

प्रश्न- आरोप पत्र दाखखल करते
समय प्रश्नगत कैसेट कहा पर र्थी ?

उिर - प्रश्नगत कैसेट र्थाने के
माल खाने में दाखखल र्थी।

प्रश्न-
प्रश्नगत
कैसेट
एक
डॉकूमेन्री इविडेन्स र्थी, आरोप पत्र के सार्थ
दाखखल न कर के मालखाने में ककसके
आदेश से और क्यों दाखखल की गयी र्थी?
3 All. Mohd. Azam Khan Vs. State of U.P. & Anr.
1053

उिर- क्योंकक, कैसेट की जािंच पूणग
नहीिं हो सकी र्थी जािंच के सलए माननीय
न्यायालय के समक्ष श्री आजम खािं के
आिाज का नमूना सलया जाना र्था। जो पूणग
नहीिं हो पाया र्था। िाद परीक्षण माननीय
न्यायालय में दाखखल ककया जाता, वििेचना
में विलम्ि हो रहा र्था पयागप्त साक्ष्य पाते
हुए वििेचना में आरोप पत्र प्रेवषत की गयी
र्थी।

प्रश्न - एफ०एस०एल० को जि
कैसेट िेजा गया र्था, Voice सेंपल के सार्थ
िेजा गया र्था कक, बिना Voice सेंपल के
िेजा गया र्था?

उिर- बिना Voice सेंपल के िेजा
गया र्था।

प्रश्न - ितौर I.O. क्या आपने
कधर्थत कैसेट को यह जानने के सलए कक,
आरोवपत अपराि गहठत होता है और
आरोप पत्र में लगी िाराएिं आकृष्ट होती है,
किी सुना ? या किी सुनने की कोसशश की
?

उिर - कधर्थत कैसेट पूिग वििेचक
द्िारा माननीय न्यायालय के समक्ष िास्ते
परीक्षण शील िन्द ककया गया र्था इससलए
मेरे द्िारा कधर्थत कैसेट को नहीिं खोला
गया।

Cross by defence counsel (Advo.
Nasir Sultan) on same day

यह कहना सही है कक, मै ऑडडयों
कैसेट ि िीडडयो कैसेट का अन्तर जानता
हूाँ। दौरान वििेचना मुझे जानकारी हुई कक,
इस मामले से सम्िजन्ित िीडडयो कैसेट
िनाई गयी र्थी। मेरे सिंज्ञान में नहीिं है कक,
केिल आडडयो कैसेट िनाई गयी कक नहीिं।
यह िात सही है कक, केस डायरी में केिल
िीडीयो कैसेट की िात का उललेख है। केस
डायरी के पचाग निं०-9 में सी डी (काम्पैक्ट
डडस्क) का उललेख है। कैसेट अलग चीज
होती है। और काम्पैक्ट डडस्क अलग चीज
होती है।

प्रश्न - क्या सिंजय के द्िारा
िीडडयो ग्राफी की गयी?

उिर - जी हााँ।

िीडडयो ग्राफी हदनािंक 7.08.2007
को की गयी। जो कैसेट 07.08.2007 को
तैयार की गयी उसे मयसील मोहर हदनािंक
9.08.2007 को सायिं 17.10 पर पहली िार
माल खाने में दाखखल की गयी जो कक,
नायि तहसीलदार द्िारा र्थाने पर दाखखल
की गयी।

प्रश्न - 7.08.2007, 08.08.2007
तर्था 9.08.2007 तक िीडडयो ग्राफी की
कैसेट ककसके पास रही?

उिर - िह केिल कैसेट र्थी इसे
पूिग वििेचक ही स्पष्ट कर सकतें है।

प्रश्न - केस डायरी में क्या इस
िात का उललेख है कक, उक्त कैसेट 3 हदन
यातन
(7.08.2007,
08.08.2007
तर्था
9.08.2007 के 17.10) तक ककस के पास
रही?

उिर - कैसेट 09.08.2007 को
र्थाने पर दाखखल ककया गया। केस डायरी में
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
इसका हिाला नहीिं इस अिधि में ककसके
पास रही।

यह िात सही है कक, िीडडयो
ग्राफर सिंजय फदग प्रदशग क-04 का न तो
गिाह है न उसके हस्ता० है। यह िात सही
है प्रदशग क-04 में सिंजय की मौजूदगी का
कोई उललेख नहीिं है।

सील करते समय नमूना मोहर
िनाया गया र्था नमूना मोहर पत्रािली पर
उपलब्ि नहीिं है। िाद में कहा कक, माल
खाने में माल के सार्थ होगा।

सी०डी० कैसेट का उललेख है
काम्पैक्ट डडस्क का उललेख नहीिं है।

प्रश्न - पूिग वििेचक द्िारा दौरान
वििेचना आिाज का नमूना लेने हेतु
न्यायालय में प्रार्थगना पत्र प्रेवषत करना
िताया है उस प्रार्थगना पत्र का आपको ज्ञान
है अगर है तो उस पत्र का हस्र क्या हुआ
और कि उसका तनस्तारण हुआ?

उिर - इन सि िातो का कोई
उललेख केस डायरी में नहीिं है केिल प्रार्थगना
पत्र देने का उललेख है।

प्रश्न
-
आपके
कर्थनानुसार
सेम्पल लेने का प्रार्थगना पत्र न्यायालय में
प्रस्तुत करने का उललेख है। वििेचक होने
के नाते आपने उस प्रार्थगना पत्र की कोई
जानकारी प्राप्त की ? और कोई उसकी पैरिी
की ?

उिर - इस सम्ििंि में मौखखक
रुप से र्थानाध्यक्ष को तनदेश हदया गया र्था।
ककन्तु इस सम्ििंि में कोई प्रगतत नहीिं हुई।

प्रश्न - क्या आपने सिंजय का
नायि
तहसीलदार
गुलाि
राय
तर्था
र्थानाध्यक्ष का 161 Cr.P.C. का ियान
अिंककत ककया।

उिर - मेरे द्िारा नहीिं ककया गया
र्था पूिग वििेचक द्िारा सलया गया र्था।

यह कहना गलत है कक, मुझे
िहुजन समाज पाटी की सरकार की प्रिाि
में पूिग ग्रसत होकर आरोप पत्र प्रस्तुत
ककया हो।

यह कहना िी गलत है कक,
तनयमानुसार वििेचना न की गयी हो।"

16.

After
the
statement-inchief/examination-in-chief
of
aforementioned witnesses were recorded,
the court concerned i.e. Additional Sessions
Judge/Special Judge (M.P./MLA), Court
No.4, Rampur passed an order dated
29.10.2022 observing therein that since
there is no F.S.L. report to prove, that the
voice recorded in the audio cassette is that
of the accused, therefore, he directed that
for just and fair adjudication of the case,
the accused shall give his voice sample and
the same be sent along with the audio
cassette to F.S.L., Moradabad to give its
report regarding the same i.e. whether the
voice recorded in the disputed cassette is
that of accused or not. This order is on
record at page 111 of the paper book as
Annexure-14.

17. Feeling aggrieved by the said
order dated 29.10.2022 referred to above,
the accused-applicant filed an application
dated 31.10.2022 (Paper No.-43 kha)
before court below praying therein that the
order dated 29.10.2022 referred to above be
recalled. The court below by means of
3 All. Mohd. Azam Khan Vs. State of U.P. & Anr.
1055
order dated 22.11.2022 rejected the abovementioned application (paper no.43 kha).

18. Thus, feeling aggrieved by the
above
orders
dated
29.10.2022
and
22.11.2022
passed
by
court
below,
accused-applicant has approached this
Court by means of present application
under Section 482 Cr.P.C..

19. Mr. Syed Imran Ibrahim, the
learned counsel for applicant contends that
the orders impugned in present application
are not only illegal but without jurisdiction.
Consequently, the same are liable to be
quashed by this Court.

20. According to the learned counsel
for applicant, PW-7 Mahendra Pal Singh,
PW-8 Om Prakash, PW-9 Gulab Rai, PW10 Gyananjay Singh in their depositions
before the court below have neither been
categorical nor consistent with regard to the
nature of the disputed cassette, as to
whether the same is an audio cassette or a
video cassette. The court below without
deciding the issue as to what is the nature
of the disputed cassette has proceeded to
pass the impugned order dated 29.10.2022
directing the applicant to give his voice
sample. He, therefore, submits that court
below has not exercised its jurisdiction
diligently but in a casual and cavalier
fashion.
As
such,
the
order
dated
29.10.2022 is manifestly illegal, as the
same is not the outcome of diligent exercise
of jurisdiction by court below.

21. It is next contended by the learned
counsel for applicant that from the
evidence that has emerged on the record of
above mentioned Sessions Trial, it is
apparent that recording of the event, which
occurred
on
07.08.2007,
was
done/
videographed by one Sanjay, owner of
Pooja Cassette Centre, Rampur. The said
recording was done by the proprietor of
aforesaid firm on the request of Gulab RaiNaib Tehsildar in his private capacity.
There is nothing on record to show that
directions were issued to aforesaid Naib
Tehsildar
by
any
senior
Administrative/Police Officer to get the
event recorded which was to take place on
07.08.2007. He, therefore, submits that the
disputed cassette is the outcome of an extra
judicial act performed by the Naib
Tehsildar,
namely,
Gulab
Rai
and
therefore, the same is neither credible nor
worthy of reliance. It is thus urged that the
disputed cassette, therefore, cannot be
taken into consideration by court below for
deciding the guilt of the accuse-applicant.

22. Disputing the impugned order
dated 29.10.2022, the learned counsel for
applicant
contends
that
the
disputed
cassette was handed over initially by
Sanjay, the owner of Pooja Cassette Centre
to Gulab Rai. However, at the time of
handing over of the disputed cassette, the
requisite certificate was not given, which is
mandatorily required to be submitted in
terms of Section 65-B of the Indian
Evidence Act. In the absence of the
requisite certificate, the disputed cassette
could not have been accepted by the police
on the record of the concerned case crime
number. However, in ignorance of above,
the same was accepted and made part of the
case-diary, inasmuch as, the recovery
memo of the same was prepared, which is
duly exhibited from the case-diary. Since
the disputed cassette was accepted without
the requisite certificate, the same is not
worthy of consideration and therefore
wholly irrelevant for deciding the guilt of
the accused-applicant, if any, on the basis
of same.
1056 INDIAN LAW REPORTS ALLAHABAD SERIES

23. With reference to the material on
record, the learned counsel for applicant
further submits that even when the disputed
cassette was placed before the court below
along with the recovery memo of the same,
the court below without ascertaining the
fact as to whether there is a requisite
certificate regarding the same in terms of
Section 65-B of the Indian Evidence Act or
not on the record proceeded to admit the
same in evidence and, accordingly, the
recovery memo, disputed cassette, plastic
bag and white cloth were admitted in
evidence and marked as Material exhibits
ka-1, ka-2, ka-3, and ka-4. He further
submits that even if the disputed cassette
has been admitted in evidence as material
exhibit, yet the same cannot be relied upon
by the court below against the applicant in
the absence of requisite certificate required
to be submitted along with an electronic
piece of evidence in terms of Section 65-B
of the Indian Evidence Act.

24. To buttress his submissions, the
learned counsel for applicant has relied
upon the three Judges Bench judgement of
Apex Court in Arjun Panditrao Khotkar
Vs. Kailash Kushanrao Gorantyal and
others (2020) 7 SCC 1. Reference has
been made to paragraphs 52 to 59 of the
said report. For ready reference the same
are extracted herein-under :-

"52. We may hasten to add that
Section 65-B does not speak of the stage at
which such certificate must be furnished to
the Court. In Anvar P.V. [Anvar P.V. v.
P.K. Basheer, (2014) 10 SCC 473 : (2015)
1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] , this Court did
observe
that
such
certificate
must
accompany the electronic record when the
same is produced in evidence. We may
only add that this is so in cases where such
certificate could be procured by the person
seeking to rely upon an electronic record.
However, in cases where either a defective
certificate is given, or in cases where such
certificate has been demanded and is not
given by the person concerned, the Judge
conducting the trial must summon the
person/persons referred to in Section 65B(4) of the Evidence Act, and require that
such
certificate
be
given
by
such
person/persons. This, the trial Judge ought
to do when the electronic record is
produced in evidence before him without
the requisite certificate in the circumstances
aforementioned. This is, of course, subject
to discretion being exercised in civil cases
in accordance with law, and in accordance
with the requirements of justice on the facts
of each case. When it comes to criminal
trials, it is important to keep in mind the
general principle that the accused must be
supplied all documents that the prosecution
seeks to rely upon before commencement
of the trial, under the relevant sections of
the Cr.P.C..

53. In a recent judgment, a
Division Bench of this Court in State of
Karnataka v. M.R. Hiremath [State of
Karnataka v. M.R. Hiremath, (2019) 7 SCC
515 : (2019) 3 SCC (Cri) 109 : (2019) 2
SCC (L&S) 380] , after referring to Anvar
P.V. [Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] held : (M.R. Hiremath case
[State of Karnataka v. M.R. Hiremath,
(2019) 7 SCC 515 : (2019) 3 SCC (Cri) 109
: (2019) 2 SCC (L&S) 380] , SCC p. 523,
paras 16-17)

"16. The same view has been
reiterated by a two-Judge Bench of this
Court in Union of India v. Ravindra V.
Desai [Union of India v. Ravindra V.
Desai, (2018) 16 SCC 273 : (2020) 1 SCC
(Cri) 669 : (2019) 1 SCC (L&S) 225] . The
3 All. Mohd. Azam Khan Vs. State of U.P. & Anr.
1057
Court emphasised that non-production of a
certificate under Section 65-B on an earlier
occasion is a curable defect. The Court
relied upon the earlier decision in Sonu v.
State of Haryana [Sonu v. State of Haryana,
(2017) 8 SCC 570 : (2017) 3 SCC (Cri)
663] , in which it was held : (Sonu case
[Sonu v. State of Haryana, (2017) 8 SCC
570 : (2017) 3 SCC (Cri) 663] , SCC p.
584, para 32)

'32. ... The crucial test, as
affirmed by this Court, is whether the
defect could have been cured at the stage of
marking the document. Applying this test
to the present case, if an objection was
taken to the CDRs being marked without a
certificate, the court could have given the
prosecution an opportunity to rectify the
deficiency.'

17. Having regard to the above
principle of law, the High Court [M.R.
Hiremath v. State, 2017 SCC OnLine Kar
4970] erred in coming to the conclusion
that the failure to produce a certificate
under Section 65-B(4) of the Evidence Act
at the stage when the charge-sheet was filed
was fatal to the prosecution. The need for
production of such a certificate would arise
when the electronic record is sought to be
produced in evidence at the trial. It is at
that stage that the necessity of the
production of the certificate would arise."

(emphasis in original)

54. It is pertinent to recollect that
the
stage
of
admitting
documentary
evidence in a criminal trial is the filing of
the charge-sheet. When a criminal court
summons the accused to stand trial, copies
of all documents which are entered in the
charge-sheet/final report have to be given
to the accused. Section 207 Cr.P.C., which
reads [ "207. Supply to the accused of copy
of police report and other documents.-In
any case where the proceeding has been
instituted on a police report, the Magistrate
shall without delay furnish to the accused,
free of costs, a copy of each of the
following-(i) the police report;(ii) the first
information report recorded under Section
154;(iii) the statements recorded under subsection (3) of Section 161 of all persons
whom the prosecution proposes to examine
as its witnesses, excluding therefrom any
part in regard to which a request for such
exclusion has been made by the police
officer under sub-section (6) of Section
173;(iv) the confessions and statements, if
any, recorded under Section 164;(v) any
other document or relevant extract thereof
forwarded to the Magistrate with the police
report under sub-section (5) of Section
173:Provided that the Magistrate may, after
perusing any such part of a statement as is
referred to in clause (iii) and considering
the reasons given by the police officer for
the request, direct that a copy of that part of
the statement or of such portion thereof as
the Magistrate thinks proper, shall be
furnished to the accused:Provided further
that if the Magistrate is satisfied that any
document referred to in clause (v) is
voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that
he will only be allowed to inspect it either
personally or through pleader in court."] as
follows, is mandatory. Therefore, the
electronic evidence i.e. the computer
output, has to be furnished at the latest
before the trial begins. The reason is not far
to seek; this gives the accused a fair chance
to prepare and defend the charges levelled
against him during the trial. The general
principle in criminal proceedings therefore,
is to supply to the accused all documents
that the prosecution seeks to rely upon
before the commencement of the trial. The
requirement of such full disclosure is an
extremely valuable right and an essential
feature of the right to a fair trial as it
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
enables the accused to prepare for the trial
before its commencement.

55. In a criminal trial, it is
assumed that the investigation is completed
and
the
prosecution
has,
as
such,
concretised its case against an accused
before commencement of the trial. It is
further settled law that the prosecution
ought not to be allowed to fill up any
lacunae during a trial. As recognised by
this Court in CBI v. R.S. Pai [CBI v. R.S.
Pai, (2002) 5 SCC 82 : 2002 SCC (Cri)
950] , the only exception to this general
rule is if the prosecution had "mistakenly"
not filed a document, the said document
can be allowed to be placed on record. The
Court held as follows : (SCC p. 85, para 7)

"7. From the aforesaid subsections, it is apparent that normally, the
investigating officer is required to produce
all the relevant documents at the time of
submitting the charge-sheet. At the same
time, as there is no specific prohibition, it
cannot
be
held
that
the
additional
documents
cannot
be
produced
subsequently. If some mistake is committed
in not producing the relevant documents at
the time of submitting the report or the
charge-sheet, it is always open to the
investigating officer to produce the same
with the permission of the court."

This extract is taken from Arjun
Panditrao Khotkar v. Kailash Kushanrao
Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC
(Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2
SCC (L&S) 587 : 2020 SCC OnLine SC
571 at page 52

56. Therefore, in terms of general
procedure, the prosecution is obligated to
supply all documents upon which reliance
may be placed to an accused before
commencement of the trial. Thus, the
exercise of power by the courts in criminal
trials in permitting evidence to be filed at a
later stage should not result in serious or
irreversible prejudice to the accused. A
balancing exercise in respect of the rights
of parties has to be carried out by the court,
in examining any application by the
prosecution under Sections 91 or 311
Cr.P.C. or Section 165 of the Evidence Act.
Depending on the facts of each case, and
the court exercising discretion after seeing
that the accused is not prejudiced by want
of a fair trial, the court may in appropriate
cases allow the prosecution to produce such
certificate at a later point in time. If it is the
accused who desires to produce the
requisite certificate as part of his defence,
this again will depend upon the justice of
the case - discretion to be exercised by
the court in accordance with law.

57. The High Court of Rajasthan
in Paras Jain v. State of Rajasthan [Paras
Jain v. State of Rajasthan, 2015 SCC
OnLine Raj 8331] , decided a preliminary
objection
that
was
raised
on
the
applicability of Section 65-B to the facts of
the case.

57.1. The preliminary objection
raised was framed as follows : (SCC
OnLine Raj para 3)

"3. (i) Whether transcriptions of
conversations and for that matter CDs of
the same filed along with the charge-sheet
are not admissible in evidence even at this
stage of the proceedings as certificate as
required under Section 65-B of the
Evidence Act was not obtained at the time
of procurement of said CDs from the
service provider concerned and it was not
produced along with charge-sheet in the
prescribed form and such certificate cannot
be filed subsequently."

57.2. After referring to Anvar
P.V. [Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] , the High Court held : (Paras
Jain case [Paras Jain v. State of Rajasthan,
3 All. Mohd. Azam Khan Vs. State of U.P. & Anr.
1059
2015 SCC OnLine Raj 8331] , SCC
OnLine Raj paras 15-23)

"15. Although, it has been
observed by the Hon'ble Supreme Court
that
the
requisite
certificate
must
accompany the electronic record pertaining
to which a statement is sought to be given
in evidence when the same is produced in
evidence, but in my view it does not mean
that it must be produced along with the
charge-sheet and if it is not produced along
with the charge-sheet, doors of the court
are completely shut and it can not be
produced
subsequently
in
any
circumstance. Section 65-B of the Evidence
Act deals with admissibility of secondary
evidence in the form of electronic record
and the procedure to be followed and the
requirements be fulfilled before such an
evidence can be held to be admissible in
evidence and not with the stage at which
such a certificate is to be produced before
the court. One of the principal issues
arising for consideration in the above case
before the Hon'ble Court was the nature
and manner of admission of electronic
records.

16. From the facts of the above
case, it is revealed that the election of the
respondent to the Legislative Assembly of
the State of Kerala was challenged by the
appellant Shri Anwar P.V. by way of an
election petition before the High Court of
Kerala and it was dismissed vide order
dated 16-11-2011 by the High Court and
that order was challenged by the appellant
before the Hon'ble Supreme Court.