Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : AN ACCUSED HAS INDEFEASIBLE RIGHT TO CLAIM COPIES OF DOCUMENTS RELIED UPON BY THE PROSECUTION.
JUDGEMENT TITLE : Vinay Sharma Vs. State Of U.P. And Another On 09/19/2011 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 26868 OF 2011
CORAM : Hon'ble Shri Kant Tripathi,J

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 43

Case :- APPLICATION U/S 482 No. - 26868 Of 2011

Petitioner :- Vinay Sharma
Respondent :- State Of U.P. And Another
Petitioner Counsel :- Dr. Akhilesh Kumar Sharma
Respondent Counsel :- Govt.Advocate

Hon'ble Shri Kant Tripathi,J.
1. Heard Learned Counsel For The Petitioner And The Learned AGA For The State And Perused The Record.
2. This Is A Petition Under Section 482 Of The Code Of Criminal Procedure (hereinafter Referred To As 'the Code') For Quashing The Order Dated 14.6.2011 (Annexure 4) Passed By The Additional Sessions Judge, Court No.2, Agra In Sessions Trial No. 965 Of 2010, State Vs. Amit And Others.
3. It Appears That The Learned Additional Sessions Judge Found By The Order Dated 14.6.2011 A Prima Facie Case For Framing Charges Under Sections 147, 148, 307/149, 302/149 And 120-B IPC Against The Petitioner And Other Accused. The Impugned Order Seems To Have Been Passed On The Materials On Record, Which Were Collected During The Investigation And Have Been Annexed With The Charge Sheet. In This View Of The Matter, The Learned Additional Sessions Judge Does Not Appear To Have Taken Into Consideration Any Irrelevant Materials.
4. The Learned Counsel For The Petitioner Submitted That The Petitioner Has Not Been Provided The Copies Of The Statements Of The Witnesses Ajai Tiwari, Mohan Sharma And Sanjai Sharma Recorded Under Section 161 Of The Code. He Has Also Not Been Provided A Copy Of The Forensic Science Laboratory's Report Regarding The Result Of The Analysis Of Bloodstained Knife, Earth And Clothes, Therefore, Framing Of Charges Against The Petitioner And Other Accused Was Not Proper. The Learned Counsel Further Submitted That Furnishing Of The Aforesaid Documents Was Mandatory In Nature, Therefore, The Impugned Order Should Be Quashed.
5. It Is Well Settled That When A Case Is Instituted On A Police Report Or Otherwise And The Accused Appears Or Is Brought Before The Magistrate, And The Magistrate Is Of The Opinion That The Offence Is Triable Exclusively By The Court Of Session, He Shall Commit The Case To The Court Of Session After Complying The Provisions Of Section 207 Or Section 208, As The Case May Be, Of The Code, Therefore, Before Committing A Case To The Court Of Session, The Magistrate Has To Ensure Compliance Of The Provisions Of Section 207 Or Section 208 Of The Code. Without Doing So, Committal Of The Case To The Court Of Session Is Not Permissible.
6. Section 207 Of The Code Deals With The Supply To The Accused Of Copy Of The Police Report And Other Documents, 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 Cost, 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 Sub-section (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."
7. Therefore, The Documents Referred To In Section 207 Of The Code Must Be Furnished To The Accused Freee Of Cost Without Any Delay. However, If Any Document Is Voluminous, The Magistrate, Instead Of Furnishing The Accused With A Copy Thereof, Has The Power To Direct The Accused To Inspect The Document Either Himself Or Through His Counsel In The Court. A Perusal Of Section 207 Of The Code Further Reveals That The Magistrate Is Bound To Furnish To The Accused Only Those Statements Of The Witnesses Which The Prosecution Proposes To Examine During The Trial. If The Prosecution Does Not Propose To Examine Any Witness During The Trial And Does Not Indicate Him As A Witness In The Charge Sheet, It Is Not Necessary To Furnish A Copy Of His Statement To The Accused. It Is Also Worthwhile To Mention That Sections 226, 227 And 228 Of The Code Have Also Bearing In The Matter. In The Cases Triable Exclusively By The Court Of Session, The Prosecutor Has To Open His Case Under Section 226 Of The Code And Describe The Charge Brought Against The Accused And State The Evidence Which He Proposes To Prove The Guilt Of The Accused. Section 227 Of The Code Deals With The Discharge Of The Accused, Which Provides That If Upon Consideration Of The Record Of The Case And Documents Submitted Therewith And After Hearing The Submissions Of The Accused And Prosecution, The Trial Judge Considers That There Is No Sufficient Ground For Proceeding Against The Accused, He Has To Discharge The Accused And Record His Reasons For The Discharge. If The Judge, Upon Such Consideration And Hearing, Is Of The Opinion That The Accused Has Committed An Offence Which Is Not Exclusively Triable By The Court Of Session, He May Frame A Charge Against The Accused And Transfer The Matter For Trial To The Chief Judicial Magistrate. But If The Judge Is Of The View That Accused Has Committed An Offence Exclusively Triable By The Court Of Session, He Shall Frame A Charge In Writing Against The Accused. Therefore, A Combined Reading Of Sections 226, 227 And 228 Of The Code Reveals That The Judge Has To Hear The Prosecution And The Accused And Peruse The Relevant Materials Filed Alongwith The Police Report Before Either Framing The Charge, Discharging The Accused Or Remitting The Case To The Magistrate. As Such The Concept Of Hearing So Contemplated Is Meant For Finding Out A Prima Facie Case For Framing The Charge Or Discharging The Accused And At That Stage The Judge Is Not Required To Consider The Pros And Cons Of The Case. In This View Of The Matter, Furnishing Of Documents Referred To In Section 207 Of The Code To The Accused Is Not A Mere Formality, Rather It Is A Mandatory Requirement So That On Perusal Of The Relevant Materials Referred To In The Police Report, The Accused May Be Able To Submit Before The Judge That No Case Is Made Out Against Him.
8. In The Case Of Sidharth Vashisht @ Manu Sharma Vs. State (N.C.T. Of Delhi), AIR 2010 SC 2352, The Apex Court Examined The Necessity Of Furnishing Copies Of The Documents Referred To In Section 207 Of The Code To The Accused, And Held That The Provisions Of Section 207 Has A Material Bearing On This Subject And Makes An Interesting Reading. This Provision Not Only Require Or Mandate That The Court Without Delay And Free Of Cost Should Furnish To The Accused Copies Of The Police Report, First Information Report, Statement, Confessional Statement Of The Persons Recorded Under Section 161 Whom The Prosecution Wishes To Examine As Witnesses, Of Course, Excluding Any Part Of A Statement Or Document As Contemplated Under Section 173 (6) Of The Code, Any Other Document Or Relevant Extract Thereof Which Has Been Submitted To The Magistrate By The Police Under Sub Section (5) Of Section 173. In Contradistinction To The Provisions Of Section 173, Where The Legislature Has Used The Expression ''documents On Which The Prosecution Relies' Are Not Used Under Section 207 Of The Code. Therefore, The Provisions Of Section 207 Of The Code Will Have To Be Given Liberal And Relevant Meaning So As To Achieve Its Object. Not Only This, The Documents Submitted To The Magistrate Along With The Report Under Section 173 (5) Would Deem To Include The Documents Which Have To Be Sent To The Magistrate During The Course Of Investigation As Per The Requirement Of Section 170 (2) Of The Code.
The Apex Court Further Held That The Right Of The Accused With Regard To Disclosure Of Documents Is A Limited Right But Is Codified And Is The Very Foundation Of A Fair Investigation And Trial. On Such Matters, The Accused Cannot Claim An Indefeasible Legal Right To Claim Every Document Of The Police File Or Even The Portions Which Are Permitted To Be Excluded From The Documents Annexed To The Report Under Section 173(2) As Per Orders Of The Court. But Certain Rights Of The Accused Flow Both From The Codified Law As Well As From Equitable Concepts Of Constitutional Jurisdiction, As Substantial Variation To Such Procedure Would Frustrate The Very Basis Of A Fair Trial. To Claim Documents Within The Purview Of Scope Of Sections 207, 243 Read With The Provisions Of Section 173 In Its Entirety And Power Of The Court Under Section 91 Of The Code To Summon Documents Signifies And Provides Precepts Which Will Govern The Right Of The Accused To Claim Copies Of The Statement And Documents Which The Prosecution Has Collected During Investigation And Upon Which They Rely. It Will Be Difficult For The Court To Say That The Accused Has No Right To Claim Copies Of The Documents Or Request The Court For Production Of A Document Which Is Part Of The General Diary Subject To Satisfying The Basic Ingredients Of Law Stated Therein. A Document Which Has Been Obtained Bonafidely And Has Bearing On The Case Of The Prosecution And In The Opinion Of The Public Prosecutor, The Same Should Be Disclosed To The Accused In The Interest Of Justice And Fair Investigation And Trial Should Be Furnished To The Accused. Then That Document Should Be Disclosed To The Accused Giving Him Chance Of Fair Defence, Particularly When Non-production Or Disclosure Of Such A Document Would Affect Administration Of Criminal Justice And The Defence Of The Accused Prejudicially. The Concept Of Disclosure And Duties Of The Prosecutor Under The English System Cannot, In Our Opinion, Be Made Applicable To Indian Criminal Jurisprudence Stricto Senso At This Stage. However, We Are Of The Considered View That The Doctrine Of Disclosure Would Have To Be Given Somewhat Expanded Application.
9. The Learned AGA Referred To The Committal Order And Submitted That The Chief Judicial Magistrate Has Mentioned In The Committal Order That Copies Had Been Furnished To The Petitioner And Other Accused And There Was An Endorsement To That Effect Even On The Order Sheet, By The Accused, Therefore, The Contention That Certain Copies Were Not Furnished To The Accused Before Committal Of The Case Has No Substance. In This Connection, The Learned Counsel For The Petitioner Submitted That On 6.7.2010 The Petitioner And Other Accused Were Furnished Copies And They Made An Endorsement To That Effect On The Order Sheet. Thereafter, The Accused Moved An Application Before The Magistrate Disclosing The Documents Whose Copies Had Not Been Furnished To Them. In This Connection, Learned AGA Submitted That The Petitioner Has Made An Endorsement Again On The Order Sheet Dated 20.7.2010 That He Received Copies Of The Documents Referred To In His Application, Therefore, The Petitioner Could Not Be Permitted To Contend That He Has Not Been Furnished Copies Of The Documents Disclosed In The Application.
10. In My Opinion, It Is Not Possible For This Court To Examine The Aforesaid Disputed Question Of Fact And To Find Out Whether Or Not The Petitioner Had Been Furnished Copies Of The Documents Referred To In His Application. In This View Of The Matter, It Seems To Be Just And Expedient To Provide An Opportunity To The Petitioner To Make Inspection Of The Documents/statements Referred To In His Application Dated 17.2.2011, In The Court.
11. In View Of The Aforesaid, It Is Directed That The Learned Trial Court Shall Permit The Petitioner Or His Counsel To Make Inspection Of The Statements Of The Witnesses Ajay Tiwari, Mohan Sharma And Sanjai Sharma Recorded Under Section 161 Of The Code And Also Of The Report Of Forensic Science Laboratory. The Inspection Shall Be Done In The Court, Or In The Office Meant For The Inspections, As Per The Direction Of The Trial Judge. It May Also Be Made Clear That The Inspection Shall Be Allowed Before Holding Any Further Proceedings In The Case. It Is Further Made Clear That The Accused Will Not Be Granted Any Adjournment For The Inspection, Which Must Be Carried Out On The Date Appointed For The Purpose.
12. With The Aforesaid Observations, The Petition Is Disposed Of.

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