[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL REVISION PETITION NO. 666/2008 RAHUL TYAGI Vs. STATE OF RAJASTHAN DATE: 01/08/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. S.R. Surana with Mr. Rajeev Surana for the petitioner. Mr. B.S. Chhaba, Public Prosecutor for the State. Mr. V.P. Bishnoi for the complainant. **** The petitioner has challenged the order impugned dated 17.06.208 passed by the Additional Sessions Judge (Fast Track) No.1, Kota in Sessions Case No. 224/2005, by which the application filed by the petitioner under Section 233 Cr.P.C. has been rejected. Earlier also the petitioner had filed a misc. petition before this Court which was registered as S.B. Criminal Misc. Petition No. 1057/2008 and vide order dated 04.06.2008 the same was dismissed as withdrawn but liberty was given to the petitioner to move application before the Court below to summon the witnesses in defence. Pursuant to the aforesaid order dated 04.06.2008 passed by this Court, the petitioner filed an application before the Court below, wherein it was contended by the petitioner that the identification is farce as in this case video photos have been published in the newspaper and new channels. [2] It has been further submitted on behalf of the petitioner that as per Section 9 of the Evidence Act, the accused-petitioner be kept 'Baparda' before identification but the photos of the accused-petitioner were published in the newspaper and also shown in Television channels before the identification was conducted by the Magistrate concerned. The main contention of the petitioner is that in defence the petitioner wanted to establish the various circumstances in this case on the basis of the circumstantial evidence but the Court below has expressed its opinion that the case is fully established against the petitioner and this shows pre-conceived mind of the Court below and there cannot be a fair trial. To lead the evidence in defence, fair trial is a requirement under Articles 21, 14 and 19 of the Constitution of India. The Court below while rejecting the application of the petitioner, has observed that the petitioner wants to delay the proceedings but learned counsel appearing for the petitioner submits that since the petitioner is behind the bars, there can be no benefit that can be derived by the petitioner in causing delay. It is further contended that the Court below has seriously erred in not considering the provisions of Section 11 of the Evidence Act and completely ignored the scope of Sections 231, 232, [3] 233, 311 and 313. Thus, it is nothing but is abuse of the process of the Court not to consider the constitutional right of the petitioner of fair trial. It is also contended that the Court below has given wrong findings that on 23.05.2008 the Court has rejected the application so the petitioner is estopped by principle of estopple or res-judicata that he cannot move fresh application demanding fair trial in this case. In support of his submissions, the learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of D. Gopalakrishnan Vs. Sadanand Naik & Ors., reported in 2005(1) UJ 135 (SC), wherein in para No.7, it has been observed by the Hon'ble Supreme Court as under:- “There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eye-witnesses and recorded their statements under Sec. 161 CrPC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as [4] assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspend and the investigating officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspend is available for identification or for video identification, the photograph shall never be shown to the witness in advance.” For the purpose of requirement of Section 9 of the Evidence Act, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Vijayan Vs. State of Kerala, reported in (1999) 3 SCC 54, wherein in Head Note-B, the Hon'ble Supreme Court has held as under:- “Evidence Act, 1872- S.9- Not only photograph of the accused shown to the witness but also in all local newspapers his photograph published- Held, in the circumstances, test identification parade rightly disbelieved by the trial Judge- Further held, a witness seeing an unknown man running cannot identify him at a later point of time particularly when no special feature indicated by the witness.” Reliance has further been placed on the judgment of the Hon'ble Supreme Court rendered in the case of Ronald Wood Mathams and others Vs. State of West Bengal, reported in AIR 1954 SC 455, [5] wherein in para 10, the Hon'ble Supreme Court has observed as under:- “Although the evidence on record may tend to establish a strong case against the accused, he is entitled to rebut and if certain documents would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, would deprive the accused of an opportunity of rebutting it. The accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial and conviction cannot stand. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them.” For the purpose of meaning of 'fair trial', the learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampoornam, reported in 2007 AIAR (Criminal) 69, wherein in Head Note-B, the Hon'ble Supreme Court has held as under:- “Words and expression- Expression 'fair trial'- Meaning- 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence- Adducing evidence in support of defence is a valuable right- Denial of that right means denial of fair trial- Rules of procedure designed to ensure justice should be scrupulously followed and Courts would be jealous to see that there is no breach of them.” [6] In support of his submission of equal treatment to be given to evidence of prosecution and the defence, learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case Anil Sharma and others Vs. State of Jharkhand, reported in (2004) 5 SCC 679, wherein in Head Note-E, it has been observed by the Hon'ble Supreme Court as under:- “Criminal Procedure Code, 1973- Ss. 231 & 233- Equal treatment, held on facts, given to evidence of prosecution and defence witnesses- Criminal Trial- Appreciation of evidence- Process and mode of appreciation- Equal treatment to be given to evidence of prosecution and the defence.” Reliance has further been placed on the judgment rendered by the Principal Seat of this High Court at Jodhopur in the case of Gurmeet Singh & Ors. Vs. State of Rajasthan, reported in 2006(2) R.C.C. 1166, wherein in para Nos. 7 to 10, it has been held by this Court as under:- “Code of Criminal Procedure, 1973- Sections 233 and 397/401- Application for summoning certain defence witness, dismissed by trial court even after calling him to enter into defence- Even before entering into the defence, petitioners were requesting the court to summon witnesses- Section 233 Cr.P.C. provides that where accused is not acquitted u/s. 232 Cr.P.C., he shall be called upon to enter on his defence and adduce evidence- Held, evidence of those witness [7] before trial court in defence, essential- Two of them shown as witnesses in challan, other two sought as DW are railway employees having first hand knowledge of the incident- It cannot be said that summoning thereof is for the purpose of vexation or delay or for defeating ends of justice- Petitioners, permitted to summon witnesses- Impugned order of trial court, set aside.” Per contra, learned Public Prosecutor appearing for the State as well as learned counsel for the complainant submitted that similar application was moved by the petitioner before the Court below on 23.05.2008 on the same grounds and the same has already been rejected by the Court below and attains finality and the petitioner has not challenged the said order by which the earlier application of the petitioner has been rejected and the misc. petition filed before this Court which was registered as S.B. Criminal Misc. Petition No. 1057/2008 has also been dismissed as withdrawn. Learned Public Prosecutor further submits that even considering that the petitioner can file fresh application on the same grounds and no principle of res-judicata applies, then also the petitioner has no case on merits also as detailed cross-examination on the grounds mentioned in the application has been made by the petitioner. The points upon which the petitioner wants to lead evidence, are not even essential to decide the [8] present controversy. He also submits that newspaper and other documents which are required to be verified by the Editor of the newspaper etc. are not essential because the documents, newspaper climpage and other material are already on record. I have heard learned counsel for the petitioner, learned Public Prosecutor for the State as well as learned counsel appearing for the complainant and have also gone through the impugned order dated 17.06.2008 passed by the Court below as also the judgments referred before this Court. It is not disputed that earlier also an application was moved on behalf of the petitioner, more or less on similar grounds on which the present application has been moved. Further the newspaper and other material are already placed on record and opportunity was given to the petitioner to cross-examine the prosecution witnesses and they have been cross-examined at length by the petitioner. The other points which have been raised in this revision petition by the petitioner can be taken by the petitioner at the time of final arguments and if the identification of the accused- petitioner has not been conducted properly in view of the provisions and in view of the ratio decided by the Hon'ble Supreme Court, as referred by the learned counsel for the petitioner, and further if [9] there is any violation of compliance of the provisions of Section 9 of the Evidence Act, to this effect also, the petitioner can raise the arguments before the Court below. Having considered the contents of the application which has been placed along with the revision petition and the contents of the earlier application, it is no doubt that more or less the application has been moved on behalf of the petitioner on the similar grounds and while rejecting the application of the petitioner, it was observed by the Court below that the petitioner is at liberty to submit legal submissions before the Court at the time of hearing. In view of the aforesaid observations, this Court do not find any illegality or error apparent on the face of the record in the order impugned dated 17.06.2008 passed by the Additional Sessions Judge (Fast Track) No.1, Kota, by which the application moved on behalf of the petitioner has been rejected. This Court find no merit in the revision petition. Consequently, the criminal revision petition fails being devoid of merit and the same is hereby dismissed. The stay application also stands dismissed. (K.S. RATHORE),J. /KKC/