TMI Blog2020 (10) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... in order of learned MM dated 23.02.2018 is the submission made by the defence counsel, not by the prosecution. It is pertinent to mention here that in para 28 of impugned order dated 24.07.2019, learned ASJ has recorded that on perusal of ‗Case Diary it shows that witness V.K. Jain was examined in Police Station on 21.02.2020 in depth and a report was prepared. The case diary further shows that after examination, V.K. Jain was relieved from the investigation after giving him necessary instructions. Learned Judge further observed that since it is a record of oral examination of V.K. Jain by the IO and is noted in the 'Case Diary', the said examination does not take place of statement under section 161 Cr.P.C. and is thereby not to be given to the accused. However, the same may be used during the trial. This Court in Ashutosh Verma vs. CBI [ 2014 (12) TMI 1405 - DELHI HIGH COURT] has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defence and wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Court did not allow to supply some crucial documents as prayed/required in the application under Section 207 Cr.P.C. filed on the behalf of the accused in this case, without following the procedure as prescribed under Cr.P.C. 2. The chargesheet in FIR No 54/2018 under section 186/323/353/332/ 342/149/504/506-II/120-B/109/114/34 IPC filed on 13.08.2020 before learned ACMM, Patiala House Court against the petitioners and named as accused. The Petitioner No.1 herein filed an application under section 207 Criminal Procedure Code for supply of certain deficient documents inter alia including the copy of the statement of one witness Sh.V.K. Jain recorded on 21.02.2018 and audio/video recording of the examination of the petitioners. Barring the supply of legible copy of the documents mentioned in the application learned ACMM declined the supply of the statement dated 21.02.2020 of the V.K Jain and held that as per prosecution no statement under section 161 Cr.P.C. was recorded of Mr.V.K. Jain on 21.02.2020 and therefore same cannot be supplied. 3. Being aggrieved, preferred the Revision Petition No. 7/2019 before the Ld. ASJ (MPs/MLAs), Rouse Avenue, New Delhi. However, on 24.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 21.02.2018 because it did not suit the prosecution case and helped in falsely implicating the petitioners. This concealment was exposed by Ld. ASJ in its order when he perused the case diary of the case. Thus, the grievance of the petitioners is that copy of statement ought to have been supplied to the petitioners but same was not supplied. 5. Further submitted that the chargesheet has three statements of Mr V K Jain: 22.02.2018 Statement under section 161 164 Cr.P.C. 09.05.2018 Statement under section 161 Cr.P.C. 6. Learned senior counsel pointed out that in the statement of V K Jain dated 09.05.2018 which is part of the chargesheet says, In continuation with the statement dated 21.02.2018 , which prosecution covers that the same is typographical error. This all because they are trying to conceal/withheld the crucial part of evidence which is against the principle of ―Criminal Jurisprudence‖ and in violation of the basic principle of natural justice, free and fair trial. A plain reading of this section 207 Cr.P.C makes it amply clear that under this provision the accused is entitled or have right to take the complete copy of chargesheet and other documents in regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by withholding the evidence collected by him. If an Investigating Officer withholds the evidence collected by him, the accused has a right to rely upon that evidence and tell the Court to take that evidence into account while framing the charges. The Court while framing charges may not take into account the defence of the accused for the document in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. 9. It is argued that a conjoint reading of Section 173(5), 173(6) and first proviso attached to Section 207 of Cr.P.C. leaves no scope of doubt that it is the bounden duty of the police officer to forward to the Magistrate all the statements mentioned in sub-section (5)(b) of Section 173 of Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under Section 207 of Cr.P.C. by furnishing copies of such statements to the accused. In case the police officer considers that the disclosure of any part of such statements would not be expedient in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments were forwarded to the court under Section 173(5) Cr. PC but were not relied upon by the prosecution and the accused wanted copies/ inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. 11. On the objection raised by the counsel for respondent no.2 (complainant) that order dated 22.04.2019 passed by learned ACMM has not been challenged, however, learned counsel for the petitioners relied upon the case of Kunhayammed Ors. vs. State of Kerala Ors.: (2000) 6 SCC 359 whereby held as under: Incidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapat AIR 1970 SC 1, this Court vide para 7 has emphasized three pre conditions attracting applicability of doctrine of merger. They are : i) the jurisdiction exercised should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 09.05.2018 of V.K. Jain, it is mentioned that it is in continuation to my earlier statement dated 21.02.2018, recorded under section 161 Cr.P.C. and 164 Cr.P.C. In the remand order of co-accused persons namely Sh.Prakash Jarwal and Sh.Amanatullah Khan, learned MM, Ms.Shefali Bernala Tandon, Tis Hazari Courts, has recorded the date of statement of V.K. Jain as 21.02.2018. In reply to the above facts, it is stated that the above date of 21.02.2018 is a typographical error, as it is matter of record that both statement under section 161 Cr.P.C. and 164 Cr.P.C. of witness V.K. Jain were got recorded on 22.02.2018 only. Moreover, the fact of recording of the same date (21.02.2018) in the order of learned MM dated 23.02.2018, is the submission made by the Defense Counsel and not by the prosecution. Further stated that as per the impugned order of learned Session Court dated 24.07.2019, detailed examination of case diary was done by the learned ASJ, in Crl.Rev. 7/19. The entire case diary was got called by learned ASJ and relevant pages have been duly counter signed by the learned Judge. 13. Mr.Siddharth Luthra, learned senior counsel appearing on behalf of respondent no.2/complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of the purported statement dated 21.02.2018? 19. It is submitted that though the application under section 207 Cr.P.C. does not reflect which Accused had moved before the Trial Court, however, the Ld. Magistrate records that Sh. B.S. Joon, Advocate was representing Sh. Arvind Kejriwal, Sh. Jarwal and Sh. Amanatullah Khan. That being the position, the first Petitioner before this Court and before the Revisional Court had no grievance whatsoever and could not have maintained a challenge to the Order dated 22.04.2019. Furthermore, in order to overcome this hurdle, pursuant to Order dated 21.05.2019 Sh. Arvind Kejriwal was added as a Petitioner. However, the Criminal Revision Petition on behalf of Sh. Manish Sisodia as well as this Petitioner, is unsustainable as framed. 20. Further raised objection, whether the petition is belated and the explanation given in Paras 6 8 is false to the knowledge of the Petitioners? 21. Mr.Luthra submitted that in Paras 6, 7 8 of the Petition, the Petitioners have sought to justify the delay in challenging the revisional order which is 14 months old having been passed on 24.07.2019 on the ground that there was no occasion for them to seek supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that no period of limitation has been prescribed by the Limitation Act within which a petition under Section 482 Cr.PC ought to be filed. But the contention which the learned counsel for the petitioner has failed to address convincingly is that the principle of laches or inordinate delay is not applicable to a petition under Section 482 Cr.PC. In this regard, I disagree with the contention of the learned counsel for the petitioner that the principle of laches or inordinate delay is not applicable to the provisions of Section 482 Cr.PC. In this regard, it may be pertinent to refer to a few judgments of other High Courts which have dealt with similar question. 12. In Bata Others versus Anama Behera: 1990 Crl.LJ 1110, the learned single Judge of the Orissa High Court observed as under :- Though for filing an application under section 482 there is no limitation, the application should be filed within a reasonable time, so that the progress of the case is not disturbed at a belated stage. A revision petition challenging an order can be filed within 90 days from the date of the order similarly a period of 90 days which is at par with a revision petition should be treated as reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 409 and 420 IPC were framed, is taken to be correct even then from the date of framing of the charge, there has been a lapse of almost two years in invoking the jurisdiction of this Court. As I have observed hereinabove that a revision against an order ought to be filed within a period of 90 days and the said period has been held by Orissa High Court to be reasonable and sufficient to invoke the revisionary power of a Court, then ordinarily the said period can also be said to be reasonable in normal circumstances while preferring a petition under Section 482 Cr.PC while as in the instant case, there is a lapse of almost two years without there being even an iota of averment in the petition as to what the petitioner was doing during these two years. The learned counsel during the course of argument, had made a submission that he was recently engaged and when on being engaged he found that the charge against the petitioner was not sustainable, he preferred the present petition under Section 482 Cr.PC. 16. I do not agree with the contention of the learned counsel for the petitioner that the change of counsel should be the ground for entertaining a belated petition under Section 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he papers which are supplied to the accused. Moreover, the informant is not entitled to the copy of the supervision notes. The supervision notes are recorded by the supervising officer. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend hiself properly. The idea behind the supply of copies is to put him on notice of what he had to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan, AIR (1964) SC 286 and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.. [2003] 7 SCC 749. It was held that non-supply is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. The supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. At the same time the accused cannot make any reference to them for any purpose. If any reference is made before any court to the supervision notes, as has noted above they are not to be taken note of by the concerned court. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent issue, i.e., limiting the grant of anticipatory bail to a particular period of time. Such issue is not in question in the present case. In this view of the matter, the gist of what is recorded cannot be sought to be supplied by the Petitioner being barred under Section 172(3) Cr.P.C. Moreover, the High Court Rules framed by this Court in Chapter XII, Rule 1 Rule 3 recorded as under: [1] When accused is entitled to see Police diaries or statement of a witness recorded by Police The Police diaries called for under Section 172 of the Code of Criminal Procedure should not be shown to accused persons, or to their agents, or pleaders, except under the circumstances stated in the second clause of Section 172 of the Code, that is, when they are used by a Police Officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such Police Officer. Sessions Judges and District Magistrates should issue such orders as are necessary to guard against the Police diaries being inspected by person not entitled to see them. The right of an accused person to be furnished with a copy of a statement of a person whom the prosecution proposes to examine as its w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by the police officer concerned. Sub-section (3) is relevant, and it requires the police officer to reduce to writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Statement made by a witness to the police officer during investigation may be reduced to writing. It is not obligatory on the part of the police officer to record any statement made to him. He may do so if he feels it necessary. What is enjoined by the section is a truthful disclosure by the person who is examined. 31. Reference may also be made in this regard to the 41st Report of the Law Commission of India, wherein the Commission took the following view with respect to Section 161 Cr.P.C.: 14.9. It is of course true that the discretion allowed to a police-officer to record, or not to record, any statement made to him during investigation is expressed in absolute terms. Such wide discretion naturally attracts suspicion. We can therefore readily understand why the previous Reports suggested some limitation which would help to guide the exercise of this discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties relied upon the judgments rendered by this Court and the Hon ble Supreme Court. The main issue to be considered by this Court is that; whether statement of witness V.K. Jain recorded on 21.02.2018 but not signed by IO of the case, is to be considered as a statement recorded under section 161 Cr.P.C. If yes, further question arises whether relied upon judgments by the respondents are applicable in the facts and circumstances of the present case. 35. The petitioners have placed copy of statement of V.K. Jain, which is reproduced as under: Case FIR No.54/18, Dated 20/02/18, U/s 186/332/353/120- B/342/504/506(II)/323/34 IPC, PS Civil Lines, Delhi Examination of Sh. Vinod Kumar Jain S/o Late Sh. Kalu Ram Jain R/o H. No.57, Mera Bai Institute of Technology Campus Maharani Bagh, Delhi, age 60 years, Mobile No.XXXXXXXXXX (Note:- Number is marked by the court). 36. It is not in dispute that V.K. Jain was called on 21.02.2018 in the Police Station and he joined investigation. It is also not in dispute that he was examined by the IO on that day and the said fact recorded in the case dairy. But, stand of prosecution and respondent no.2 complainant is that on 21.02.2018, statement of V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. 41. This Court in Ashutosh Verma vs. CBI: 2014 SCC OnLine Del 6931 has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st him by a fair investigation and trial. 45. It is pertinent to mention here that in para 58 of the impugned order, learned Sessions Court has differentiated the judgment of the State of NCT of Delhi vs. Ravikant Sharma Ors.: (2007) 2 SCC 764 and discussed in detail and opined that the said judgment is not applicable in the present case. However, amendment in section 172 Cr.P.C. in the year 2009 made the judgment mentioned above, inapplicable to the case in hand as the 'Case Diary' is a composite case diary including the statements recorded under section 161 Cr.P.C. 46. Whereas, the prosecution has completely denied that no statement was recorded on 21.02.2018 and only the oral statement is made by V.K. Jain. However, admittedly, in 'Case Diary', it is mentioned that he is giving statement in continuation of statement given on 21.02.2018. Thus, stand of prosecution cannot be accepted which is contrary to their own record. 47. It is pertinent to mention here that in the impugned order dated 24.07.2019, learned Revisional Court has recorded that since it is a record of oral examination of V.K. Jain by IO and is noted in the case diary, this statement cannot be given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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