Rajasthan High Court - Jaipur
Dhananjay Kumar Singh vs State Of Rajasthan on 19 April, 2006
Equivalent citations: 2006CRILJ3873, RLW2006(3)RAJ2217, 2006(4)WLC296
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT R.S. Chauhan, J.
1. Wanting to pick some chinks in the armour of the prosecution, the petitioner filed two different applications under Section 91 of the Criminal Procedure Code (henceforth to be referred to as 'the Code', for short) before the learned trial Court. However, vide order dated 4.10.2004, the learned trial Court rejected the said applications by a common order. Hence, this petition before us.
2. The brief facts of the case are that the petitioner allegedly kidnapped Smt. Sumedha Durlabhji, a member of a prominent family of Jaipur. He is facing a trial for offences under Sections 364-A, 341 and 120-B IPC. During the course of the trial, the petitioner moved two applications under Section of the Code. In the first application dated 24.9.2004, he pointed out that Mr. Hemant Sharma, who was working in the Police Department in the Jodhpur Range, and Mr. Umaid Singh who was functioning as Deputy Superintendent of Police in the ACP and few other police officers were constituted into different investigating teams by the DIG, Range-I, Jaipur vide letter No. 825 to 833, 837 to 847, 848 to 878. He requested that these letters be summoned from the police as they would be needed for the just decision of the case. By another application, dated 26.10.2004, he asked for summoning of "Roznamchas" (General Case Diaries) of Police Station Bajaj Nagar, Gandhi Nagar, Transport Nagar, Jalviya Nagar and Moti Dungari in Jaipur. He further pleaded that Mr. Om Prakash from Police Station Bajaj Nagar and Mr. Ranjeet Singh, Sub-Inspector, have appeared as witnesses in the criminal case. They need to be cross-examined with respect to these 'Roznamchas'. Therefore, it is imperative that these 'Roznamchas' be summoned by the Court. However, vide order dated 4.10.2004, the learned trial Court dismissed both the applications.
3. Mr. Sudeep Hora, the learned Counsel for the petitioner, has raised many contentions before us. Firstly, the Constitution of India provides for safeguarding the "life or personal liberty" of every person. The State can deprive a person of his "Lie or personal liberty", but by following a procedure established by law. Secondly, under Article 21 of the Constitution of India, the accused has the right to defend his "life" and "personal liberty". In order to defend himself, it is imperative that all the evidence collected by the police during the course of investigation should be placed at his disposal. Such evidence would also include the 'Roznamchas' and the internal correspondence of the Police Department by which the Police Officers were appointed as Investigating Officers. Thus, the documents mentioned above were "necessary and desirable" in accordance with Section 91 of the Code of the just decision of the case. However, by rejecting the said applications, the learned trial Court has committed a grave illegality. Thirdly, the recoveries in this case were made by the police without involving independent witnesses. Since the recoveries were made only in front of police officers, the recoveries were suspect in the yes of the law. According to the learned Counsel these documents were required for casting a doubt on the veracity of the recoveries. Fourthly, the defence is not built up in installments, but is created from the very beginning. These documents were needed for confronting the witnesses during the course of cross-examination. Therefore, the documents were presently needed in the trial. Lastly, though these documents can be summoned when the defence enters its evidence, but that is no consolation. For, Section 243(2) of the Code gives a discretionary power to the Court; the Court may refuse to call for the production of any document. Moreover, such a summoning of documents at the pen-ultimate end of the trial would only prolong the completion of the trial. A prolonged trial is neither in the interest of the accused, nor in the interest of the victim. Hence, the accused may not be able to defend himself in a substantial manner. In order to substantiate his contentions, the learned Counsel has relied upon State of Kerala v. Babu and Ors. , Sadhu Singh v. State of U.P. , Kalpnath Rai v. State (through CB1) , State of A.P. v. Patnam Anandam , Sahib Singh v. State of Punjab , Bharat v. State of Madhya Pradesh (2003) 2 SCC 106, Aslam Parwez v. Govt. of NCT of Delhi , K.V. Rama Krishna Reddy v. The State 1975 Cri. L.J. 980, Ran Singh v. State of Haryana (1993(1) Crimes 1055 (Punj), Jaivir Singh v. State of Delhi (1995 Cri.L.J. 1477), Davendra Kumar v. State of Rajasthan (1990(2) RLR 629), Bhika Ram v. State of Rajasthan (1998 RCC 570), State of Kerala v. Raghavan etc. 1974 Cri.L.J. 1373, Navin Ramji Kamani v. Shri K.C. Shekhran 1981 RCC 218.
4. On the other hand, Mr. S.R. Bajwa, Sr. Advocate and the learned Special Public Prosecutor for the State, has placed various counter-arguments; firstly, that Section 172(3) of the Code prohibits the accused or his agent from calling for the diary during the trial. They are not even permitted to see the diary even if the diary is referred to by the Court. According to the learned Counsel, the case diaries, Special or General, contain many sensitive information, which can not be shown to the accused as it would jeopardize the functioning of the police. Hence, the impugned order was legally and validly passed. In order to substantiate his contention, Mr. Bajwa has relied upon the cases of Shamshul Kumar v. State of U.P. , Sidharth etc. etc. v. State of Bihar 2005(7) Supreme 38, The Assistant Collector of Customs Bombay v. L.R. Melwani , State v. Jayapaul and S. Jeevanantham v. State through the Inspector of Police T.N. .
5. We have heard the learned Counsels for the parties and have perused the impugned order.
6. A plethora of legal issues have arisen before us.
(1) Does the accused have the right to access "all" the evidence gathered by the Investigating Agency during the course of investigation?
(2) Can the Investigating Agency or the prosecution withhold evidence, which is in favour of the accused from the Court and the accused on the ground that the prosecution does not want to rely on such evidence?
(3) Does not denial of documents to the accused, which are available with the police, but which the prosecution does not wish to rely upon, amount to violation of Principle of Natural Justice?
(4) Would such a denial be in conformity with the concept of fair trial?
(5) Can the Court call for the case diary by invoking its power under Section 91 of the Code?
(6) Does Section 172(3) of the Code absolutely prohibit the right of the accused to call for the case diary?
(7) In case of conflict between these two provisions, how are they to be reconciled?
(8) What is the scope and ambit of Section 173(6) of the Code?
(9) In case the State denies the access of the case diary to accused, what is the procedure to be followed?
7. Before we deal with these issues, it is imperative for us to consider the position of the accused under the Constitution of India. It is also necessary to examine the rights of the accused under the Universal Declaration of Human Rights, 1948. For, it too deals with the rights of the accused and India is a signatory to it.
8. According to the Social Contract, theorists, like Hobbes, Locke and Rousseau, Man entered into a social contract to form a State for his own protection, hence, the protection of the individual is the raison d'etre (the reason for being) of the State. Therefore, the primary duty of the State is to protect the individual. The Constitution of India reflects this jurisprudential basis when it states, "We are people having solemnly resolved to constitute India into...". Further, the Constitution of India protects the individual, when Article 21 proclaims, "No person shall be deprived of his life or personal liberty except according to procedure established by law." Article 21 of the constitution, hence prohibits the State from depriving the accused of his "life or personal liberty" without following the procedure established by law. Simultaneously, it bestows the accused with the fundamental right to defend himself. Since an individual is pitted against the leviathan State, the Criminal Law provides an elaborate procedure for the protection of the individual. While interpreting the provisions of the Code and of the Evidence Act, the Constitution mandate has to be borne in mind.
9. It is not just the Constitution of India which bestows the right to defend oneself upon an accused, the Universal Declaration of Human Rights, 1948 does the same. Article 3 of the Declaration states, "Everyone has the right of life, liberty and security of person". Article 10 states, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." Article 11 further states, "Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." (Emphasis added). Article 11 not only bestows a right on the accused to have all the necessary means for his defence at his disposal, but more importantly, it imposes a duty on the State to provide all the means to the accused to defend himself. After all, in a democratic society, we can not afford Kangaroo courts. Both according to the Constitution of India and according to the Declaration the individual is paramount. Since India is a signatory to the said Declaration, we have to interpret our laws in consonance with the said Declaration.
10. In order to answer the legal issues enumerated above, it is imperative that the relevant provisions of the Code of the Evidence Act are examined.
11. Section 91 of the Code reads as under:
Summons to produce document or other things.-(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 purpose 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 of and place stated in the summons or order.
(2) Any person required under this Section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this Section shall be deemed.--
(a) to affect, Sections C and 124 of the Indian Evidence act, 1872(1 of 1872) or the Bankers, Books Evidence Act, 1891 (13,of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
12. Section 172 of the Code is as under:
Diary of proceeding in investigation--(1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at the which the information reached him, the time at which he began and closed his investigation, the place of places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in a case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall be or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case maybe, of the Indian Evidence Act, 1872, shall apply.
13. Section 173 of the Code reads as follows:
Report of police officer on completion of investigation- (1) Every investigation under this chapter shall be completed without unnecessary delay.
2.(i) As soon as it is completed, the officer in charge of the police station shall forward to Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, of so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under Section 170.
2.(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under. Section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of .the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(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) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential to the interest of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all of any of the documents referred to in Sub-section (5).
(8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed, and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
14. Section 207 of the Code imposes a duty on the Court to ensure that the accused is supplied with copy of the police report and other documents, in the following words:
(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 request for such exclusion has beep 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.
15. Section 243 of the Code is equality important which is as under:
Evidence for defence-(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused; after he had entered upon his defence, applied to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application shall be refused on the ground hat it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing;
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this Section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under Sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purpose of the trial be deposited in Court.
16. Sections 145, 159, 160 and 161 of the Evidence Act are also essential which are as under:
Section 145. Cross-examination as to previous statements in writing A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Section 159. Refreshing memoryA witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memorywhenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document;
Provided the Court be satisfied that there is sufficient reason for the non-production of the original.
A expert may refresh his memory by reference to professional treatises.
Section 161. Right of adverse party as to writing used to refresh memoryAny writing referred to under the provisions of the two last preceding Sections must be produced and shown to the adverse party if he requires, it; such party, if he pleases, cross-examine the witness thereupon.
Section 162. Production of document.A witness summoned to produce a document shall, it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its' admissibility. The validity of any such objection shall be decided on by the Court.
The Court, if it sees, fit, may inspect the document unless it refers to matters of state, or take other evidence to enable it to determine on its admissibility.
Section 165, Judge's power to put questions or order production The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and my order the production of any document or thing; and neither the parties nor there agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.
Provided also that this Section shall not authorize any Judges to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answering or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall be dispense with primary evidence of any document, except in the cases hereinbefore excepted.
17. A bare perusal of these provisions would reveal that Sections 91 of the Code is in two parts. The first part empowers the Court to summon the production of any document or thing which it deems "necessary to desirable" for the purpose of any inquiry, or trial. The word "document" has not been defined in the Code. But, it has been defined in the Evidence Act under Section 3 as meaning "any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter." Hence, the word document would include a case diary, both General and Special. Therefore, under Section 91 of the code, the Court does not have the power to summon the case diary or other documents. However, such a power is discretionary in nature. The accused cannot ask for the production of the document as a matter of right. He has merely a right of consideration of his application. It is for the Court to decide if the document sought to be summoned is "necessary and desirable" for the just decision of the case. If it comes to the conclusion that the document is "necessary and desirable" for the just decision of the case, then it should summon the document.
18. Meanwhile, the second part of the Section does place a limit on the power of the Court to summon document which fall under Sections 161 and 124 of the Evidence Act. The Court cannot summon such documents which are covered by Sections 161 and 124 of the Evidence act. While Section 161 of the Evidence Act deals with evidence as to "affairs of the State". Section 124 deals with "Official Communications". But can the investigating agency claim immunity from disclosing the case diary ostensibly on the ground that it relates to "affairs of the State"? We shall deal with this point later in the judgment, hence, subject to the limits placed by Sub-section (3), the power under Section 91 of the Code is vast. Though the power is vast but it has to be exercised sparingly. However, the power should be harnessed for the cause of fair play and justice.
19. Section 172 of the code is also in two parts. The first part places an embargo on the power of the Court in calling for the case diary. According to Sub-section (3), "neither the accused nor his agents shall be entitled to call for such diaries, nor shall be entitled to see them merely because they are referred to by the Court." But, the second part carves out an exception for the production of the case diary, when it says, in case the police officer uses the diary for refreshing his memory or the court uses it for the purpose of contradicting such police officer, the accused may use the diary for the purpose of Sections 161 and 145 of the Evidence Act. Hence, for a limited purpose of drawing the attention of the police officer who appears as a witness, and for the purpose of contradicting him the accused can ask for the production of the case diary.
20. A bare juxtaposition of Sections 91 and 172(3) of the Code would reveal that while the former Section provides the accused with a right to call for the case diary, the latter Section prohibits such a right. Apparently, there is a conflict between the two Sections, it needs to be harmonized. While harmonizing these two Sections, it is imperative to bear in mind that Section 91(1) of the Code bestows a vast power on the Court to call for documents which would include case diary. Such a power is circumscribed only by Sub-section (3) of Section 91 of the Code. Aware of the limitation placed by Sub-section (3) of Section 172 of the Code, the legislature in its wisdom has not subjected Section 91(1) to Section 172(3) of the Code. Simultaneously, Section 172(3) does not begin with a non-obstantie clause ousting the jurisdiction of the Court under Section 91 of the Code. Therefore, Section 172(3) does not limit the jurisdiction of the Court under Section 91 of the Code. To read Section 172 (3) as limiting the power of the Court under Section 91 is to do violence to the language of both the provisions. In case the legislature intended to subject the power of the court under Section 91 to Section 172(3) of the code, it would have expressly said so. A limitation not expressly stated, cannot be read impliedly. Such an interpretation would be against the "canons of interpretation.
21. In order to better understand Section 172(3), one has to turn to Sections 173 and 207 of the code and to Section 162 of the Evidence Act. Section 173 of the Code imposes a duty on the police to submit its report before the Magistrate after completing the investigation. It prescribes the information which should be included in the report. It further states that "when such report is in respect of a case to which Section 170 applies, the police shall forward to the Magistrate along with the report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those. already sent to the Magistrate during investigation, and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witness". Sub-section (6) gives the police an option to withhold any part of the statement, a) if the statement is not relevant to the subject-matter of the proceeding, b) its disclosure to the accused is not essential in the interests of justice, or c) it is inexpedient in the public interest. Hence, a limited power is given to the police to withhold part of the record from the accused.
22. However, the power to withhold documents is not absolute, it is subject to judicial supervision. Section 207 of the Code imposes a duty on the Magistrate to ensure that the accused has access to the police report, the first information recorded under Section 154154, the statement 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 The proviso further states, "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 o that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused." thus, it is for the Magistrate to decide whether to accept the reasons given by the police for withholding of the statement or not. In case, the Magistrate does not find the reasons to be proper, he can direct the police to provide the accused with the copy of the statement.
23. Furthermore, Section 162 of the Evidence Act deals with the production of the document. The said Section imposes a legal duty on a witness, in whose possession or under whose power the document is, to produce the said document in the Court, notwithstanding any objection which may exist about its production or relevancy. The validity of such objection is to be decided by the Court. The Court is further empowered to inspect the document or to take other evidence to enable it to determine on its admissibility. Hence, once a document is summoned from the police, the police has no option but to produce the said document in the Court. It is for the Court to inspect the document or to take evidence about its admissibility and to decide the validity of any objection raised by the police.
24. A holistic interpretation of these provisions would show that at the beginning of the trial, under Section 207 of the Code, the accused has a right to receive all the relevant evidence in his favour gathered by the police during investigation. In fact, the investigating agency is legally bound to carry out an impartial investigation and to place the result of the investigation before the Court. In case, the police does not wish to reveal parts of the statements to the the accused, it shall submit its reasons to the Court under Section 173(6) of the Code. Under the proviso of Section 207 of the Code, the Court shall consider the said reasons and decide upon its validity.
25. Moreover, during the course of the trial, under Section 91 of the Code, the accused can seek the production of the case diary. Once, the case diary is summoned, then according to Section 162 of the Evidence Act, the police is duty bound to produce the same. However, the Court is to decide on the validity of any objection raised by the police, thus, the Court does have the power to call for the case diary or other documents under Section 91 of the Code at the instance of the accused. However, the case diary can be used by the accused only for the limited purpose laid down under Section 172(3) of the Code. In short, the case diary can be used by the accused only for the purpose of drawing the attention of the witness to the part which is to be used for contradicting him.
26. Further, under Section 233 of the Code, the accused can ask for the production of any document or thing. But, such a right is not absolute. Instead, it is subject to the discretion of the Court. In case the Court is of the opinion that the document is being sought as a cleaver ploy to delay or to defeat the ends of justice or is a vexatious exercise the Court would be justified in rejecting the prayer of the accused. Therefore, the embargo contained in Section 172(3) of the Code has to be read in the light of these provisions mentioned above.
27. These provisions are in accordance with the Constitutional mandate and the Universal Declaration mentioned above. As stated above, the foremost duty of the State is to protect the individual. But one cannot forget the maxim salus populi est supreme lex (safety of the people or the public welfare is the supreme law). Therefore, a balance has to be struck between the rights of the accused and the interest of the public. Of course, under Section 161 of the Evidence act. "no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit." Moreover, according to Section 124 of the Evidence Act, "no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure. According to Section 91(3) of the Code, the court can not transgress into this areas carved out by Sections 161 and 124. However, in case the State pleads immunity from disclosure, it is for the court to decide whether the document in respect of which privilege is claimed, is really a document relating to any "affairs of State"? In case of conflict between the interest of the individual and of the society, it is for the Court to decide if the evidence should be sought or not. In this regard, the words of Mann LJ in the case of R v. Governor of Brixton Prison ex parte Osman 1992 1 All ER 108 are important. His Lordship, while discussing the concept of balancing the interests, held "Suffice it to say for the moment that a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interest of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed". Further, Lord Taylor CJ in the case of R v. Keane (1994) 2 All ER 483 held as under:
If the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of the disclosing it.
But how is it to be determined whether and to what extent the material which the Crown wish to withhold may be assistance to the defence?
First, it is for the prosecution to put before the court only those documents which it regards as material but wishes to withhold. As to what documents are 'material' we would adopt the test suggested by Jowitt J in R. v. Melvin and Dingle 20 December 1993, unreported. The Learned Judge said:
I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1)or (2).
Later in the judgment Lord Taylor held:
When the court is seized of the material, the judge has to perform the balancing exercise of having regard on the one hand to the weight of the public interest in non-disclosure. On the other hand, he must consider the importance of the documents to the issues of interest to the defence, present, and potential so far as they have been disclosed to him or he can foresee them. Accordingly, the more full and specific the indication the defendant's lawyers give of the defence or issues they are likely to raise, the more accurately both the prosecution and the judge will be able to assess the value to the defence of the material.
28. Hence, unless the requirement of non-disclosure outweighs the need of interest of justice, the Court should lean towards disclosure. Both under Section 207 of the code and under Section 162 of the Evidence Act, it is for the Court to decide this issue and to perform this balancing act. But while moving an application under Section 91 of the code, it is for the defence to specify its defence or the issues it wishes to raise, as stated above by Lord Taylor.
29. Despite the legal .provisions, despite the case law, there is still a school of though which postulates that the police and the prosecution can withhold information both from the accused and the Court. According to this thinking, in case the prosecution does not wish to rely on the statements of certain witness, or on some piece of evidence, then it is not bound to disclose the same, even if the evidence is in the favour of the accused. Such an interpretation would be both against the principles of natural justice and against the concept of fair play. Undoubtedly, principles of natural justice are an integral part of a fair trial. Article 21 of the Constitution of India and the Universal Declaration, mentioned above, both guarantee a fair trial to the accused. Even if the Code does not contain any provision for providing "all" the evidence collected by the investigating agency, such a provision has to be read into the Code. For, principle of natural justiceaudi alteram partemwould have to be read into the Code. It is trite to state that opportunity of hearing means effective and substantial hearing. Truncated evidence, half-hidden evidence given to the accused or placed before the Court, do not amount to effective hearing. Thus, under the principle of audi alteram partem the accused would have the right to access the evidence which is in his favour, but which the prosecution is unwilling to produce in the Court and whose disclosure does not harm the public interest. In case the relevant evidence in favour of the accused is not supplied, we would be creating "kangaroo courts' and weaving an illusion of justice. Such Courts and such illusions are an anathema to the judicial sense of fair play.
30. Moreover, the investigating agency and the prosecution both represent the State Every action of the state is legally required to be fair, just and reasonable". In case, the investigating agency and the prosecution withhold any evidence in favour of the accused from the accused, they are not being fair, just and reasonable with the accused. Therefore, their action would be in violation of Article 14 of the Constitution of India. Article 21 of the Constitution of India has requires that the procedure established by law should be fair and reasonable. A procedure which permits the withholding of evidence which is in favour of the accused from the Court and from the accused, cannot be termed as "fair and reasonable". Thus, such a procedure would be in violation of Article 21 of the Constitution of India. Therefore, Section 172(3) would have to be interpreted in such a way as to make it commensurative with the Constitutional spirit.
31. Further, in every judicial proceeding the parties are expected to come with clean hands. By withholding the evidence without any legal justification, the prosecution would behiding vital facts from the Court. It would, thus, come to the Court with unclean hands. The prosecution is expected to reveal the whole truth and nothing but the truth to be the Court. Neither the investigating agency, nor the prosecution can be permitted to keep the Court in the dark. After all, half-baked truths are unpalatable to the judicial taste.
32. Undoubtedly, it is the duty of the Court to discover the truth of the case. The Courts are empowered to discover the truth. In its quest for the truth, the Court should not leave any stone unturned. In case, the Court is of the opinion that the application under Section 91 of the Code is genuine and has not been moved with ulterior motive of delaying the trial, the Court must exercise its jurisdiction and direct the production of the document including the case diary. The Criminal Court should keep in mind that justice should not be done, but must appear to be done. In case the accused is denied access to evidence which is in his favour, he can reasonably conclude that justice has not been done with him. The feeling of injustice would weaken the faith of the people in the Judiciary as an institution. The faith of the people, in a democracy, has to be protected and promoted.
33. Turning to the present case before us, a large number of cases have been cited at the Bar. Mr. Hora has relied upon a large number of judgments of the Hon'ble Supreme Court, but they do not come to his rescue. In the case of State of Kerala v. Babu and Ors. (supra) the issue was whether under Section 172 of the Code, the case diary of one case can be summoned in another case? However, that is not the issue before us. Hence, the said case is inapplicable to the present controversity. Similarly, the case of Kalpnath Rai (supra) dealt with the issue of whether an adverse inference can be drawn in case the prosecution were not to produce the case diary? Of course, there is an observation of the Hon'ble Supreme Court that it is open to the defence to move the Court for getting down such diaries if the defence wants to make use of it. However, the point has not been delineated in any great detail. It is, thus, an obiter and the ratio decidendi. Therefore, no reliance can be placed on the said case.
34. The petitioner has also placed reliance on certain judgments of this Court. However, even these judgments are not of much help to him. In the case of Devendra Kumar (supra), the question was whether the police can withhold certain evidence from the Court prior to framing of charge. This Court held that it could not do so. However, we are not seized with the issue if the police can withhold material prior to framing of issue. Therefore, the aid case does not shed any light on the controversy before us. .
35. On the other hand, Mr. Bajwas has heavily relied on the case of Shamshul Kumar (supra0 to argue that the accused cannot ask for the production of the case diary in light of Section 172(3) of the Code. Although this case has dealt in detail about the use of diary under Section 172(3) of the Code it has not discussed the inter-relationship between Section 172(3) and Section V of the Code. The same position exists with regard to the case of Sidharth etc. etc. (supra). Hence, these two cases do not illuminate the controversy before us.
36. As regards the right of the accused to. call for these documents while entering his defence under Section 233 of the Code, three factors need to be kept in mind. Firstly, the plausible defence is constructed from day one of the trial. It is in the light of the plausible defence that the witnesses are cross-examined. Therefore, the evidence which would strengthen the case of the defence should be made available to the accused at the earliest. Since all the means of defending himself have to be placed at his disposal, the relevant evidence cannot be supplied to him at the later part of the trial once the prosecution has completed its evidence. The accused cannot be expected to construct his defence in piece-meal manner. Secondly, by supplying the relevant evidence at the later part of the trial, it would lead to needless pendency of the trial. Prolonged trials are neither in the interest of the society, nor in the interest of the victim, nor in the interest of the accused. Considering the sky-rocketing backlog of cases pending in the trial Courts, it is essential that the trials are finished in the shortest possible time. Hence, it is only a placebo to hold out the hope that the accused can call for the case diary and other documents at the time of entering his defence. Thirdly, as under Section 91 of the Code, so under Section 233 of the code, the power to call for the document is clearly discretionary. In case the Court does not call for the document, the accused would be deprived of creating a strong defence. Again, it would lead to a farcical trial. Such a procedure would be against the Constitutional spirit and against the Universal Declaration mentioned above. Therefore, the accused should be supplied with the relevant evidence in his favour at the earliest.
37. The upshot of the discussion is that under Section 91 of the Code the accused can seek the summoning of the case diary/documents. It is for the Court to decide if the case diary/documents are "necessary or desirable" for the just decision of the case. It is also for the Court to also consider any objection raised by the prosecution about the summoning of the documents. Incase the Court finds that the application is vague or has been moved with the ulterior motive of prolonging the trial, It should reject the application. Ultimately, the Court must perform the balancing act between the Interest of the individual and of the society.
38. The applications filed by the petitioner, which are available before us, clearly reveals that they are most vague. The first application dated 24.9.2004 merely states as under:
The Deputy Superintendent of Police, Mr. Hemant Sharma who is working in the Jodhpur Range, and Mr. Umaid Singh who is the Deputy Superintendent of Police in the ACP were constituted by the DIG, Range-I, Jaipur along with eight other Police Officers and twenty - three other police personnel, into different investigating teams vide letter No. 825 to 33, 837 to 47, and 848 to 78. These letters have not been submitted in the Court. For the just decision of the case, the letters should be called for in the court. Copies of the said letters should be given to the applicant. It is, therefore, prayed that the three letters should be summoned from the office of the present DIG who is now in the office of the IG, Range-I, it further states trial copy of the Orders have been sent to the SHO, Police Station Gandhi Nagar. The said Order should also be summoned. Moreover, the Police Station Gandhi Nagar and Moti Doongari should be directed to produce the 'Roznamcha' from 10.2.2004 to 3.3.2004.
39. Translated in English, the second application dated 26.10.2004 is as under:
Sir, In the above noted case, the Constable, the Deputy Superintendent, and the Circle Inspector of Police Station Bajaj Nagar, Gandhi Nagar, Transport Nagar, Malviya Nagar, Moti Dungari, are witnesses. Every police personnel leaves the Police Station after recording the fact of his departure in the 'Roznamcha' which is kept in the Police Station.
Om Prakash, from the Police Station Bajaj Nagar, and Ranjeet Singh, Sub-Inspector, who have come as witnesses today, are also related to the above named Police Station. In order to cross-examine these witnesses, the 'Roznamchas' from 6.2.2004 to 10.3.2004 of the above named police stations should be called for. Subsequently, these witnesses should be permitted to be cross-examined again.
Applicants
40. The first application does not give any reason for why these letters are required by the defence. It nowhere states as to why the letters are "necessary and desirable" for the just decision of the case, it merely states a fact and prays that the letters be summoned. To say the least, the application is half- hearted, vague and meaningless. As stated above, it is for the defence to expressly state the reasons for summoning the documents. The defence has to show the issues if wants to raise or the defence it wants to create while asking for the production of documents. It has to make out a strong case for summoning these letters. But, it has failed to do so.
41. Similarly, the second application does not pinpoint the part of 'Roznamchas1 which is needed. Instead, it would have the entire 'Roznamchas' of the different Police Station brought to the out. Such general and vague application are not in conformity with the requirement of Section 91 of the Code. Hence, the learned Trial Court was fully justified in dismissing both the applications.
42. In the result there is no merit in this petition. It is, hereby, dismissed.