TMI Blog1984 (6) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... ce would normally do, because cognizance of an offence u/s 5 of the Imports and Exports Control Act could not be taken by any court except on a complaint by the competent authority by virtue of Section 6 of the Act. The complainant, respondent herein, is the competent authority for the purpose. In the course of investigation, large number of documents were seized by the Police and a number of persons were examined u/s 161 of the Code. On being summoned, by the Court seized of the complaint, the petitioners sought copies of the aforesaid statements and documents on the ground that, though instituted on a complaint, the case for all practical purposes was an investigated case entitling the accused to the copies. 3. The application was opposed on behalf of the complainant. By an order of December 30, 1983 sought to be quashed, the trial Court partly accepted the application holding that the accused would be entitled to copies, but only when the witnesses are produced in court, and when the documents are filed in the Court by the complainant. It was further observed that it would be open to the complainant to request that the accused may inspect the record if a document is volumino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng rights, interests or liberties of a citizen must be right, just and fair . 4. I have heard learned counsel for the parties while the claim of the accused persons to complete disclosure of material including copies of the statements and of documents, sought to be relied upon at the trial at the commencement of it, was sought to be reinforced with reference to the principles of natural justice the fundamental requirement of a fair trial, and on the application of the principle that any procedure in a proceeding likely to affect interests, rights and liberties of a citizen must be just, fair and reasonable , whether incorporated in a statutory provision or otherwise the right of disclosure, except when the witnesses are produced at the trial, and the documents are filed in Court, which sought to be denied on the ground that the Code, which regulates the trial, does not, in terms confer any such right on the accused in proceedings instituted otherwise than on a police report. In support of rival contentions, Counsel for the parties sought support from the decisions cited before the trial Court and referred to above. On behalf of the complainant, support was also sought from a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustifiably equate an ordinary private complaint with a complaint based on investigation by the police under the Code and to permit the prosecution to play hide and seek in the proceedings. It would be a traversty of fair procedure to say that the accused need not know at the commencement of the trial as to the case he is supposed to meet or as to the material sought to be used against him, and that it is enough if such material is disclosed to him in a piecemeal manner as and when a witness is produced or a document filed with the obvious liberty to the prosecutor to produce witnesses and file the documents in the order in which he may decide for his own reasons. To my mind, it is not possible for an accused in such a case to have an integrated picture of the case before him when he is called upon to cross-examine the witnesses and this infirmity in the procedure is in no way cured nor its rigour moderated merely because the Code provides for a second opportunity to cross-examine witnesses after the charge in cases instituted on a complaint. But this safeguard may be and in fact often is rendered illusory because of a common practice in such cases of examining one or two witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a Magistrate empowered to take cognizance of the offence on a Police report . As has been pointed out above, by virtue of Section 6 of the aforesaid Act, no Court can take cognizance of an offence u/s 5 of the Act except on a complaint by a competent authority, and that being so, no Magistrate is empowered to take cognizance of the offences under that Section on a police report with the result that, in so far as investigation into that offence in concerned, sub-section (2) of Section 173 is inapplicable. The investigating officer would, however, be bound to communicate the action taken by him to the officer by whom the information relating to the commission of the offence was first given and this is provided in clause (ii) of sub-section (2) of Section 173. The composite investigation in the present case could, however, lead to an anomaly. In so far as the investigation was of offence, which are outside the purview of Section 6 of the Act, it could be said, with some justification, that the requirement of sub-section 2(i) of Section 173 had to be complied with, on the conclusion of investigation, and the investigating officer must forward to a Magistrate empowered to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate considers that no case against the accused has been made out, which if unrebutted, would warrant his conviction, he shall discharge him. Sub-section (2) enables a Magistrate to discharge the accused at any previous stage of the case, if he considers the charge to be groundless. Section 246 deals with the situation where the accused is not discharged and where a charge has to be framed against the accused. Sub-section (4) of this Section obliges the Court to ask the accused if he wishes to cross-examine any of the witnesses whose evidence has been taken and such witnesses have to be recalled if the accused so desires. Sub-section (6) of this section provides for the evidence of any remaining witnesses for the prosecution being then recorded. On a combined reading of these provisions, it follows that the Investigating officer was not bound to forward to any Magistrate a report under Section 173(2) of the Code and since the proceedings have been instituted on a complaint, the benefit of Section 207 would not be available to the accused thereby relieving the Magistrate of any duty to furnish to the accused free of cost copies of documents mentioned in that section and the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if it was cognizable, or the investigation led to a police report, which was not favourable to the aggrieved party. In all such cases, it is open to an aggrieved person to file a complaint direct to a Court and the Explanation to Section 2(d) shows that it is in rare cases that a report made by a police officer is deemed to be a complaint. 9. It thus appears that, while there is no statutory right to disclosure at the threshold, in cases instituted otherwise than on a police report, such a right would be available to an accused even in such cases, on the application of the principles referred to above unless one takes the view that the procedure prescribed by the Code, for the trial of cases otherwise than on a police report, expressly or by necessary implication excludes the operation of these principles. There is obviously no express provision in the Code dealing with this class of cases excluding the operation of the principles of natural justice, and the other principles which would justify a complete disclosure. It is also not possible to read into any provision of the Code an implied exclusion of the operation of these principles. It is also well known that the exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not been complied with and it would then be the duty of the Magistrate to see that it is complied with before proceeding further with the case. The case with which the Madras High Court was concerned was, however, a case instituted on a police report u/s 173(1) of the Code of Criminal Procedure as it stood after the amendment of the Code in 1955. In the case of Kanhaiyalal Daulatramji, the Madhya Pradesh High Court expressed the view that whether a case is instituted on a police report or a complaint, the accused is entitled to the previous statement of the complainant, whether made to the police, or otherwise, as also to copies of documents, on which the prosecution wishes to rely, or which are in the possession of the police. It was further observed that from a reading of sub-section (4) of Section 173 as it then stood, it was incumbent upon the police to give copies of documents, on which the prosecution relied, and observed that simply because no duty was cast to inquire whether the accused has received the copies or not in a case instituted on a complaint, it does not mean that the accused is not entitled to the documents referred to by section 173, if he is otherwise entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (4) of Section 173, as the provision of Section 13 of the Official Secrets Act contained a special procedure for taking cognizance, which superseded the General Procedure laid down in the Code. It was further observed that in such a situation. Section 252 of the Code was applicable which contained no compulsory provision of giving copies of documents referred to in Section 173 of the Code. In the case of Labhu Ram-1970 Cr. L. J. 553, the right to copies was denied with reference to the provisions of Sections 4, 173, 204, 25 and 251-A of the Code on the ground that the prosecution had been instituted on a complaint filed by the Municipal Committee for an offence u/s 78 of the Punjab Municipal Act, and it was pointed out that the provisions in Sections 173(4) and 251-A(1) of the Code for furnishing copies of the documents to the accused, introduced in the Code by the amendment of 1955, contains no parallel provision in respect of documents appended to a complaint or relied upon in support thereof. It was pointed out that if the Legislature intended to treat a complaint at par with a police report in this behalf there was no reason why similar provisions should not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been investigated under the Code, but which came to the Court on a complaint because of the bar to cognizance by virtue of Section 6 of the Imports and Exports Control Act, 1947. Some of these decisions were cited before the learned Judge and a contention was raised that the facts of the case before the Supreme Court in the case of Melwani (supra) were distinguishable in that case there was no investigation by the police but only by the Customs authorities in the exercise of power under the Customs Act, while in the case before the learned Judge, the filing of the complaint had been preceded by investigation by the police under the Code. The learned Judge, however, expressed the view that this difference was not material for the application of the rule laid down by the Supreme Court to the case because trial in the case will have to be held under the provisions of Section 252 of the Code and the sections that followed and under this procedure, the accused would have an opportunity to cross-examine prosecution witnesses, both before and after the charge is framed. It was further observed that as and when the prosecution witnesses are examined, it would be open to the accused to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the entitlement to have copies of statements of witnesses recorded by the police was a very valuable right because without having the statements recorded by the police in his possession, it would be difficult if not impossible for an accused to defend himself effectively. It was pointed out that if an accused was not supplied with the statements recorded by the police or the statements of witnesses recorded at the inquiry or the trial, how can he possibly defend himself and instruct his lawyer to cross-examine the witnesses successfully and effectively so as to disprove the prosecution case . It was, therefore, held that Section 14 of the Act could never have intended to take away or deprive an accused of this valuable right, which has been conferred on him by the criminal law of the land . It was pointed out that the Legislature, when it passed the Official Secrets Act, 1923, was aware of the provisions of the Code which had conferred the valuable right on an accused in order to defend himself, and if any of these rights were to be taken away, one would have expected a clearer and more specific language used in Section 14 to connote such an intention . It was further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Articles and the requirement that any procedure to be consistent with the Constitutional requirements must be right and just and fair and not arbitrary, fanciful or oppressive . And it was observed that otherwise, it would be no procedure at all and the requirements of Article 21 would not be satisfied. 14. A contention was, however, raised on behalf of the complainant that the decision of the Supreme Court in the case of Melwani (supra) was a decision by a Constitution Bench of the Supreme Court, and it was not open to the two-judge Bench of the Supreme Court in the case of Bhowmick (supra) to ignore it. The decision in the case of Melwani (supra) was, no doubt neither cited nor discussed in the case of Bhowmick. But I see no conflict between the two decisions, and even if the decision had been cited, it would still not have made any difference in the ratio or the reasoning of the Court in the case of Bhowmick (supra). In the case of Melwani (supra), the Supreme Court was not concerned with a case, which had been investigated by the police, under the Code. It was on the contrary dealing with a case in which there has been no investigation at all and the complaint was precede ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
