Daya Nand vs State of U.P.

G.P. Mathur, J.—This petition u/s 482. Code of Criminal Procedure has been filed for quashing of the order dated 11.10.1982 passed by IVth Addl. Sessions Judge Deoria in Sessions Trial No. 43 of 1979.

The police of Police Station Nibua Naurangia, district Deoria submitted charge-sheet against the applicant and seven others for their prosecution under Sections 147, 148, 307, 302 and 120B, I.P.C. for having committed murder of two persons, namely, Jang Bahadur and Dheer Rai on 2.4.1978 regarding which a case had been registered as Crime No. 19 of 1978. After the entire prosecution evidence had been recorded, the applicant in his statement u/s 313. Code of Criminal Procedure, which was recorded on 9.7.1979, took a plea of alibi and stated that on the date of the incident, he was present in a place which was situated within police station Naval Parasi, district Nawal Parasi, Nepal. He also filed for a copy of F.I.R. allegedly lodged by him at the aforesaid police station in Nepal and copy of an Injury report regarding his medical examination in a hospital there. At the request of the applicant, the aforesaid papers were sent to the Ministry of External Affairs, New Delhi, for onward transmission to the Embassy of India in Nepal for the purpose of their verification by some officer of the Indian Embassy with reference to original record. The Ministry of External Affairs, New Delhi sent a communication dated 27.9.1982 to the effect that the documents sent for verification were not traceable. Thereafter, the applicant filed photo copies of the F.I.R. and injury reports before the learned Sessions Judge and prayed that the same may be sent to the Ministry of External Affairs for onward transmission to the Indian Embassy in Nepal for the purpose of verification. The learned Sessions Judge was of the opinion that photo copy could not be sent for verification and consequently, rejected the application by his order dated 11.10.1982 which has been impugned in the present petition.

The present petition was admitted by this Court on 25.11.1982 and the proceedings of the Sessions Trial No. 43 of 1979 were stayed on 26.11.1982. The petition came up for hearing before me on 17.8.1995. It was pointed out by the learned Counsel for the complainant that after lapse of 17 years, it was very doubtful whether the original F.I.R. and injury report would be available in Nepal and, therefore, sending photostat copies of the documents for verification would be an exercise in futility. I, therefore, passed a detailed order on the same day and the operative part thereof reads as follows:

The applicant should, therefore, file proof of the fact that the original record of the aforesaid document is still available in Nepal. If the applicant is able to satisfy the court about the fact that the original records are still available in Nepal, from which the authenticity of the copies submitted by the applicant can be verified, the matter will be considered on merits.

The petition was directed to be listed on 18.10.1995. Thereafter, the petition was listed for hearing on six different dates but the case had to be adjourned on the request of learned Counsel for the applicant. Ultimately, it was heard on 12.2.1996 on which date a supplementary affidavit has been filed and paragraphs 2 and 3 thereof, which are relevant for the purpose of controversy in hand, read as follows:

Para 2: That after the order dated 17.8.1995 of this Hon''ble Court the deponent went to Police Station Naval Parasi, district Naval Parasi (Nepal) to ascertain the whereabouts of the documents, photostat copies of which were filed before the trial court, after loss of certified carbon copies.

Para 3: That the Police Officer Incharge of Police Station Naval Parasi, district Naval Parasi, (Nepal) informed that the papers have been sent to External Affairs Ministry of Nepal. Thereafter, the deponent approached the External Affairs Ministry where he was informed that no information regarding them could be given as they have been classified as confidential after the request of Indian Embassy.

By the order dated 17.8.1995, the applicant was directed to file proof of the fact that the original record of the aforesaid documents is still available in Nepal. The applicant has not filed any material or proof to show that the original documents are still available. The affidavit filed by him is vague. All the paragraphs of the affidavit have been sworn on the basis of personal knowledge, when in fact the relevant facts stated in para 3 of the affidavit are based upon information given by someone else. Chapter IV of the Allahabad High Court Rules deals with affidavits and Rule 12 thereof provides that when any particular fact is based on information received from others, the affidavit shall sufficiently describe the person or persons from whom his information was received. In the affidavit, the person from whom the applicant received information that the documents have been classified as confidential has not been disclosed. At any rate, the order passed by the court earlier on 17.8.1995, has not at all been complied with and, therefore, the petition is liable to be dismissed.

It may be noticed that the applicant has raised a plea of alibi in his statement u/s 313, Code of Criminal Procedure and in view of Sections 102 - 104 of the Evidence Act, the burden of proving the alibi lies upon him. The applicant has, therefore, to lead evidence to establish that at the time of the incident, he was not present in village Madar Bindwalia, P.S. Nibua Naurangia district Deoria but was present somewhere else. Section 233(3), Code of Criminal Procedure provides that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The order passed by the learned Sessions Judge on 11.10.1982 shows that the applicant had applied for summoning three witnesses from Nepal. The summons were sent through the Ministry of External Affairs but the same were returned on the ground that diplomatic channel could not be utilized for the purpose of effecting service in civil or criminal case. Attempt to serve summons through registered post also failed. Thereafter, the summons were sought to be served through special messenger/police authorities but on account of geographical limitation, this could not be done. Thus the learned Sessions Judge adopted every possible method to procure the attendance of the witnesses, summoned on behalf of the accused-applicant but on account of the fact that they belong to another country, they could not be served. The provision of Sub-section (3) of Section 233, Code of Criminal Procedure have thus been fully complied with as the learned Sessions Judge has issued process several times for compelling the attendance of the witnesses summoned by the applicant.

It appears that the procedure of sending the papers filed by the applicant to the Embassy of India through Ministry of External Affairs for their verification with the original documents in Nepal by some officer of Indian Embassy was adopted in the light of observations made in a judgment of this Court rendered on 22.12.1970 in Criminal Appeal No. 2189 of 1968. There is no statutory provision for adopting such a procedure. In the said case, the court might have evolved the aforesaid procedure for the decision of the case. It has not been laid down as a principle of law that wherever an accused raises a plea of alibi that he was present in another country, the document produced by him in support thereof should be got verified by the officers of the Indian Embassy in the aforesaid country. The Code of Criminal Procedure does not make any such provision and merely requires the Sessions Judge to issue process for compelling the attendance of a defence witness. If the process cannot be issued or effected on account of the fact that the witnesses are residing outside the territory of India, the accused cannot get any advantage of the said fact as in view of Sections 102 - 104, Evidence Act, the burden to prove the plea of alibi lies upon him.

For the reasons mentioned above, the petition fails and is hereby dismissed. The stay order passed by this Court staying the proceedings of the Sessions trial is vacated. The Sessions trial has become very old as it is of the year 1979. The learned Sessions Judge concerned is directed to conclude the Sessions trial as expeditiously as possible. Office is directed to send an authenticated copy of the judgment to Sessions Judge, Deoria within fifteen days and report compliance of the order within a week thereafter.