TMI Blog2016 (9) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... with the charge sheet thus, the same cannot be given under Section 207 Cr. P. C. however the petitioner is entitled to the said document under Sections 91, 233 and 243 Cr. P. C. Sections 233 and 243 Cr. P. C. provide that the Court shall issue process compelling attendance of a witness or production of any document or thing unless the Court finds that the application has been made for the purpose of vexation or delay or for defeating the ends of justice. The law on Section 91 Cr. P. C. is clear that the Court or officer in charge of a police station shall exercise the power to ensure production of any document or other things necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code. Further the necessity and desirability of production of the document has to be seen also keeping in mind the stage at which the power is required to be exercised. In the present case, the petitioner seeks document which is a report of internal enquiry wherein statement of witnesses were recorded. The petitioner would have a right to cross-examine the witnesses by confronting them with their previous statements so recorded. Thus, the limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner were obtained and annexed with the file i. e. police file, however, the same were not filed as part of charge sheet. 5. Section 173(5) Cr. P. C. provides as under:- 173. Report of police officer on completion of investigation. - (1) to (4) xx xx xx xx xx (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report - (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. 6. Further Section 207 Cr. P. C. provides as under- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016. Thus the challenge of the petitioner to the orders dated 22nd March, 2016 and 11th August, 2016 on the ground that document relied upon by the prosecution was not supplied and hence there was failure of justice deserves to be rejected as the documents sought for i. e. the report of internal enquiry could not be considered at the stage of framing of charge. 8. Supreme Court noting the ambit of Sections 173 and 207 Cr. P. C. and emphasizing on the need of fair trial to the accused entitling him to obtain documents in the decision reported as (2010) 6 SCC 1 Manu Sharma Vs. State (NCT of Delhi) held- 203. It is pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry/trial by the court. Let us examine the extent of this right of an accused in light of the statutory provisions and the manner in which the law has developed under the criminal jurisprudence. To understand this concept in its right perspective we must notice the scheme under the provisions of Sections 170 to 173 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170(2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate. Some element of discretion is vested with the police officer under Section 173(6): where he is of the opinion that any such statement is not relevant to the subject-matter of the proceedings or its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement requesting a Magistrate (sic to exclude) that part from the copies to be granted to the accused and stating his reason for making such a request. Sub-section (7) of the same section is indicative of another discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents referred to in sub-section (5) of the section. 216. Under Section 170, the documents during investigation are required to be fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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. 220. 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 the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (5) of Section 173. 10. In the decision reported as (2013) 9 SCC 276 Manjeet Singh Khera Vs. State of Maharashtra the Supreme Court noting its earlier decision in V. K. Sasikala (supra) did not answer specifically as to whether the prosecution should supply those documents which are not forwarded with the charge sheet when the accused person demands them as the said issue did not arise and held - 8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the court under Section 173 CrPC, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall in two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many times it so happens that the investigating officer ignores the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced. 11. In the present case the issue that arises is whether the accused is entitled to receive a document collected during the course of investigation but not relied upon by the investigating agency and not forming the part of the documents with the chargesheet. 12. Fair trial is a sine qua non for proper administration of justice and thus documents which favour the accused though collected but on the volition of the investigating agency not relied upon, are required to be given to the accused though not under Section 207 Cr. P. C. but under Section 91, 233 and 243 Cr. P. C. The accused is entitled to receive these documents not only at the time of leading defence evidence but also while confronting prosecution witnesses. As noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying upon Section 91 of the Code has also been made. Section 91 of the Code reads as under: 91. Summons to produce document or other thing. --(1) Whenever any court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2)-(3) * * * 25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code . The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an absolute proposition that under no circumstances can the court look into the material produced by the defence at the stage of framing of the charge, though this should be done in very rare cases i. e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 15. Thus the law on Section 91 Cr. P. C. is clear that the Court or officer in charge of a police station shall exercise the power to ensure production of any document or other things necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code. Further the necessity and desirability of production of the document has to be seen also keeping in mind the stage at which the power is required to be exercised. However, it would be contrary to the frame work of Cr. P. C. and Indian Evidence Act that a document which favours the accused is only required to be produced at the stage when he leads defence evidence. It is trite law that the accused can probabilize his defence even by cross-examining the witnesses by confronting them with documents which impeach th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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