IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.25538 OF 2009 RAJESH BHARDWANJ, SON OF SHRI GANESH PRASAD SINGH, RESIDENT OF 13/2 ANANDPURI, WEST BORING CANAL ROAD, POLICE STATION SRIKRISHNAPURI TOWN AND DISTRICT PATNA VERSUS THE STATE OF BIHAR ******* 6 07/07/2011 Heard Counsel for the petitioner, the informant and the A.P.P. appearing on behalf of the State. This application was earlier filed challenging the order dated 25.06.2009 by which cognizance was taken. Subsequently, I.A. No. 1435 of 2011 has been filed praying for amendment in the quashing application and also challenging the order dated 26.05.2011 passed by the 1st Additional Sessions Judge, Ara in Sessions Trial No. 106 of 2010. In this case, the trial has commenced. The prosecution has led evidence and as of present, the evidence of prosecution stands closed. At this stage, the accused-petitioner has filed an application before the Trial Court to call for certain documents, which are (a) the immigration records for the year 2006 and 2007; (b) the memo no. 963/C.R. dated 20.12.2007 which is a show cause issued by the Superintendent of Police, Rail, Patna to the Officer-in-charge of the case and the reply of the Officer-in-charge as contained in memo no. 692 of 2 2007; (c) the investigation conducted in U.D. Case No. 42 of 2007. The petitioner has tried to explain the importance of these documents in the following manner. The case of the prosecution through one of its witness is, that he had identified the petitioner because he used to visit the house of the victim lady during the year 2006 and 2007. It is the specific case of the petitioner that he was not present during that period, for which he relies on his passport which would bear the immigration stamp showing that the petitioner was out of the country during the aforesaid period. Counsel for the petitioner submits that the passport was seized during the investigation by the Investigating Officer which is now not traceable. The accused has a right to demonstrate that he is not guilty of the offences alleged against him. In the circumstances, the Trial Court can and should call for a report from the Immigration Office, after the petitioner produces the photocopy of the original passport to verify whether the defence of the petitioner is correct or not. Since this document is in the custody of the Central Government, obviously it cannot suo motu be produced by the petitioner. As far as the original passport is concerned, the petitioner could not take any steps to register a case regarding the missing passport as he was in jail custody. 3 The allegation that the Investigating Officer had seized the passport without a proper seizure list may or may not be true but the fact regarding the contents of the passport could certainly be verified from the Immigration Office. The second document which the petitioner wishes to produce and mark as exhibit is a letter issued under memo no. 963/C.R. dated 20.12.2007 which was issued by the Superintendent of Police, Rail, Patna asking PW 15 to show cause as to why he had made interpolation in the dates and events that took place on 30.11.2007/01.12.2007. Memo No. 692/C.R. of 2007 is the reply of PW 15 stating that he had not recorded the statement of the informant. The Trial Court has rejected this document on the ground that the attention of PW 15 was not drawn to this fact. In fact, the Trial Court has committed an error of record because the evidence of PW 15 at paragraph 29 and 30 would indicate that attention has been drawn to this aspect of the matter. Learned Counsel for the petitioner submits that initially U.D. Case No. 42 of 2007 was instituted and the post mortem was conducted. The dead body of the unfortunate girl was handed over to her family members, without there being any protest or complaint against anybody at that stage. Perhaps, family members were in 4 shock or whatever be the reason at that stage, no statement was taken. It has been alleged that the statement has been recorded after six days. These arguments are part of the defence raised on behalf of the petitioner, which obviously will need to be tested. In order to test this aspect of the matter, learned Counsel for the petitioner submits that it is essential to call for the memo no. 692 of 2007 which refers to memo no. 9653/C.R. of 2007. In this context, Counsel for the Opposite Party submits that the investigation report of U.D. Case No. 42 of 2007 is already before the Trial Court inasmuch as it has merged with the main case. However, Counsel for the petitioner rejects this contention on the ground that the report is lying with the Sub Divisional Officer, Ara. As far as the request of the petitioner to call for the memo no. 692/C.R. of 2007, I do not think that there should be any impediment for calling for the record. As far as the records of the U.D. Case No. 42 of 2007 are concerned, it would appear that they have not been produced before the Trial Court or much less exhibited, although they are part and parcel of the investigation of this case. The Trial Court shall get a report from the Immigration Office and the cost of courier for sending the 5 photocopy of the passport to the Immigration Officeshall be borne by the petitioner. The Trial Court should also call for the letter issued under memo no. 692/2007 by a special messenger. As far as the U.D. Case No. 42 of 2007 is concerned, the Trial Court must verify with the records available and pass appropriate orders accordingly. Obviously, if the U.D. Case No. 42 of 2007 has merged with the records, there would be no difficulty in referring to the U.D. Case, however, if the records are lying with the Sub Divisional Officer, Ara, the Trial Court should call for the records, if required in order to meet out full justice between the parties. As soon as the defence materials are received before the Trial Court, the Trial Court should take all steps to conclude the trial expeditiously. Needless to say, the parties must co-operate with the trial of the case. I.A. No. 1435 of 2011 is allowed to the extent indicated aforesaid. Anand ( Sheema Ali Khan, J. )