On April 4, 2022, the Allahabad High Court dismissed the revision petition filed by the Uttar Pradesh Government challenging the order dated November 26, 2001, passed by learned Special Judge (D.A.A.), Etah in case of State Vs. Swami Sachchidanand Har Sakshi and Five Others.
In the year 2000, an FIR was filed against Swami Sacchidanand Har Sakcchi (a.k.a Sakshi Maharaj) and five others wherein it was alleged that he had kidnapped the victim from a medical clinic along with his associates and bodyguards, and assaulted and raped her in Udaitpur Ashram. It was alleged that thereafter, other associates of Sakshi Maharaj also raped her continuously for nine days. The accused persons were charged under IPC sections 149, 366, 342, 392, 376, 506.
On Monday, the bench comprised of Justice Shamim Ahmed upheld the trial court’s order as it found no illegality or infirmity in the impugned order passed by the trial court.
On conducting an inquiry, the trial court had found all the allegations made by the victim to be false and unsupported with any cogent evidence. After considering the material on record, the trial court discharged the accused persons from the allegations of kidnapping, loot and rape on account of lack of evidence in support of such allegations.
The trial court’s findings:
Regarding allegation of assault and rape allegedly committed by the accused persons, the informant has not produced any medical evidence;
Regarding allegation of kidnapping of informant from clinic of Dr. Natthu Singh Baghel was not found true as the said doctor in his statement recorded under Section 161 Cr.P.C. has denied that such incident took place in his clinic;
The witnesses of the alleged kidnapping, who were produced by the police as eye witnesses, have not named the accused opposite parties;
There was no identification parade of the accused persons, nor any allegation was made specifically against the opposite party No. 1-Swami Sachichidanand Har Sakchhi (aka Sakshi Maharaj).
AGA Abhi Shukla, State counsel, submitted in its revision petition to the Allahabad High Court that while passing the impugned order, the trial court committed an error by not considering the statements of the victim recorded under Section 161 and 164 Cr.P.C. He further argued that the trial court also committed an error of law by placing reliance on the affidavit filed subsequently by the informant which was in contradiction of her earlier statements recorded under Section 161 and 164 Cr.P.C. which might have been obtained under threat and pressure.
Considering the fact that it is the state of Uttar Pradesh that is and was the prosecutorial agency in the case, be it the Sessions Court or the High Court, it would have been both relevant and prudent for the High Court to have interrogated the stance of the state prosecutor before the Sessions Court and what he/she did in exploring this crucial aspect of possible intimidation.
Shri Vipin Kumar, the learned counsel for the accused persons submitted that the trial court committed no error in passing the impugned order, adding to this he stated that there was no evidence available on record to prove the that the subsequent affidavit filed by the informant was obtained under threat and pressure.
The said order may be read here:
What’s most concerning with the High Court’s dismissal of the revision petition against the discharge order is that it is dismissed despite having the power to correct the infirmities of the prosecution/investigation that haven’t led to gathering thorough evidence. By simply stating that evidence was inadequate yet doing nothing about it when they have the powers to both lead evidence and order further investigation under section 173(8) and 311 of the CrPc, the courts are failing in their basic duty i.e. deliverance of justice to the victim of crime and to the public at large, ensuring that such crimes are checked by power and authority.
Section 311 of the CrPc read with section 165 of the Evidence Act, give powers to the presiding judge to summon witnesses, and pro-actively intervene during trial. Section 173(8) empowers the court to ensure that the agencies investigating the case leave no stones unturned to tie up the loose knots in criminal cases.
IPC Section 311: “Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case”.
IPC Section 173(8): “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)”.
Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the power conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice.
Section 173(8) is a crucial section under the Code that gives the court and the prosecution the legal say in ordering further investigation to actually strengthen the case.
V.N. Patil Vs K. Niranjan Kumar [CrA 267 OF 2021]
…The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under 10 Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.
State vs. Tr N Seenivasagan LL 2021 SC 136 [CrA 231-232 of 2021]
“In Manju Devi v State of Rajasthan, a two-Judge bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that “the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness”, the bench noted while allowing the appeal”.
Karnel Singh v. State of M.P. [1995 (5) SCC 518].
..In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
Paras Yadav and Ors. v. State of Bihar [1999 (2) SCC 126]
The lapse or omission is committed by the investigation agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of the Courts getting at the truth by having recourse to Section 311, 391 of the Code and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence;
…It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process.
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble: (2003) 7 SCC 749.
Justice has no favourite, except truth. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.
Zahira Habibulla Sheikh v.s State of Gujarat, (2004) 3 SCC 158
“ …Discovery, vindication and establishment of truth are the main purposes underlying existence of courts of justice;…
“In a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice – often referred to as the duty to vindicate and uphold the ‘majesty of the law’”.
“…The trial Court should have exercised power under Section 311 of the Code and recalled and re-examined witnesses as their evidence was essential to arrive at the truth and a just decision in the case. The power under Section 165 of the Indian Evidence Act 1872 (in short the “Evidence Act”) was not resorted to at all and that also had led to miscarriage of justice.
“..The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court
“If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a more recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators”
“The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to courts of law. …… It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm…… “
The court “has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself… If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the frame work of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice
The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.