Madras High Court
K. Ramajeyam vs State Rep. By on 25 November, 2013
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2013
CORAM:
THE HON'BLE MR.JUSTICE P.DEVADASS
Crl.O.P.No.29860 of 2013
and
M.P.No.1 of 2013
K. Ramajeyam .. Petitioner
Vs.
State rep. by
The Inspector of Police,
T.4 Maduravayal Police Station,
Thiruvallore District. .. Respondent
Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to set aside the order passed in CMP No.182 of 2013 in S.C.No.142 of 2013 dated 09.10.2013 on the file of III Additional District Judge, Poonamallee.
***
For Petitioner : Mr.B. Ramprabhu
For Respondents : Mr.C.Emalias
Additional Public Prosecutor
O R D E R
Ramajeyam, the sole accused in the Sessions Case in S.C.No.142 of 2013, pending on the file of the learned III Additional Sessions Judge, Poonamallee challenges dismissal of his petition in C.M.P.No.182 of 2013 seeking furnishing of copies of certain documents.
2. Petitioner is being prosecuted before the said Additional Sessions Judge, for certain serious offences, namely, under Sections 449, 302, 392 and 404 of IPC. The case has been committed to the Court of Sessions under Section 209 of Cr.P.C., by the learned Magistrate. Now, the case is pending before the learned III Additional Sessions Judge, Poonamallee. Three prosecution witnesses have been examined.
3. At this stage, the petitioner filed C.M.P.No.182 of 2013 seeking furnishing of copies of statement of witness Nos. 22, 31 to 34, 36 and copies of expert's reports.
4. On 09.10.2013, the learned Additional Sessions Judge dismissed the application as under:-
"kDjhuh; vjphp FtpKr gphpt[ 207d; fPH; rpy Mtz';fis tH';f ntz;Lk; vd;W ,e;j kDit jhf;fy; bra;Js;shh;/ Mtz';fspd; efy;fs; midj;Jnk fkpl;ly; bra;af;Toa Fw;wtpay; eLth; ePjpkd;wj;jpy; jhd; kDjhuh; nfhu ,aYk;/ mkh;t[ ePjpkd;wj;jpy; nfhu ,ayhJ/ kDjhuUf;F efy;fs; njit Vw;gl;lhy; mth; rhd;wpl;l efy;fs; nfhhp kD jhf;fy; bra;J me;j efy;fis bgw;Wf; bfhs;syhk;/ mijtpLj;J FtpKr 207 gphptpd; fPH; ,e;j tHf;Fiwapd; Mtz';fspd; efy;fis ,e;j mkh;t[ ePjpkd;wj;jpy; bfhLf;f ntz;Lk; vd;W ,e;j kDit jhf;fy; bra;Js;sJ Vw;fjf;fjy;y/ vdnt ,e;j kDit js;Sgo bra;J cj;jutpLfpnwd;/ "
(emphasis supplied)
5. The sum and substance of the impugned order of the learned Additional Sessions Judge is that copies of documents could be asked for only before the Committal Court and after committal, the accused cannot ask for copies of documents U/s. 207 Cr.P.C from the Sessions Court.
6. The learned counsel for the petitioner would submit that copies of documents which ought to have been furnished to the accused by the committal Court under Section 207 Cr.P.C since were not given, it can be sought for from the Sessions Court. The documents sought for are necessary for the accused to make effective defence. Such furnishing of copies of documents is right of the accused and it is part of principle of fair trial. In support of his submissions, the learned counsel also cited V.K. SASIKALA Vs. State rep. by SUPERINTENDENT OF POLICE (2012 (9) SCC 771).
7. The learned Additional Public Prosecutor submitted that copies of statements which were not at all been recorded by the investigating Officer also have been asked for.
8. I have anxiously considered the rival submissions. Perused the impugned order and the decision cited.
9. On the accusations in the complaint (FIR), after investigation, namely, collection of evidence consisting of oral statement of witnesses recorded under Section 161 of Cr.P.C., seizure of documents, scientific expert reports, the Investigating Officer forming his opinion as to the commission of offence complained of, submits his report under Section 173 Cr.P.C., to the learned Magistrate. It is nothing but a summation of his conclusion on the evidence collected which implicates the accused. This (final) report also contains details of evidence, by which the accusations are to be proved as against the accused. On perusal of the same, if the trial Court finds ground to proceed further, it shall frame charges and shall proceed to try those charges.
10. "No man shall be deprived of his life and liberty except by procedure established by law" is constitutionally guaranteed to everyone. (See Article 21, Constitution of India). Only after following a 'fair, reasonable and equitable procedure', the liberty of a person can be curtailed in accordance with law (see MANEKA GANDHI VS. UNION OF INDIA, AIR 1978 SC 25). Right of the accused to defend himself as against the accusations made against him is constitutionally guaranteed (see Article 22, Constitution of India).
11. No one shall be condemned unheard. Before condemning a person, reasonable opportunity must be given to him. If only the basis of accusations, materials are revealed the indicted person can defend himself effectively. Without furnishing, disclosing him copies of the incriminating materials asking him to defend will be an empty formality. It is really not giving him opportunity much less a reasonable opportunity. It is as good as denying him opportunity. These are foundations of principles of justice and fair play. These are basis of principles of natural justice.
12. Sections 207, 208 and 173(5)(7) Cr.P.C., incorporates the said principles in the Criminal Procedure Code. It is relevant here to note those Sections.
13. Section 173 Cr.P.C., runs as under:
"173. Report of police officer on completion of investigation:-
(1) ************ (2) ************ (3) ******************* (4) ******************* (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 proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate the 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 or any of the documents referred to in sub-section (5)."
(8) ****************.
14. Section 207 Cr.P.C., runs 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 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 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. The said provisions are commonly applicable to all type of cases instituted upon police reports. In fact, only upon complying the requirement of Section 207 Cr.PC., a Magistrate can commit the case to the Court of Sessions. (see Section 209 Cr.P.C). Section 208 Cr.P.C., is similar provision applicable to sessions cases instituted upon private complaints. Such compliance is condition precedent for commitment of the cases to the Court of Sessions. If the copies of the documents mentioned in Section 207 Cr.P.C., are not supplied to the accused either in full or in part, he cannot effectively defend himself before the trial Court, namely, Sessions Court.
16. In V.K.SASIKALA Vs. STATE Rep. by SUPERINTENDENT OF POLICE (2012 (9) SCC 771) with regard to furnishing of copies of documents to the accused, the Hon'ble Apex Court observed as under:-
"13. Without dilating on the said aspect of the matter what has to be taken note of now are the provisions of the Code that deal with a situation/stage after completion of the investigation of a case. In this regard the provisions of Section 173(5) may be specifically noted. The said provision makes it incumbent on the investigating agency to forward/transmit to the court concerned all documents/statements, etc. on which the prosecution proposes to rely in the course of the trial. Section 173(5), however, is subject to the provisions of Section 173(6) which confers a power on the investigating officer to request the court concerned to exclude any part of the statement or documents forwarded under Section 173(5) from the copies to be granted to the accused.
14. The court having jurisdiction to deal with the matter, on receipt of the report and the accompanying documents under Section 173, is next required to decide as to whether cognizance of the offence alleged is to be taken in which event summons for the appearance of the accused before the court is to be issued. On such appearance, under Section 207 CrPC, the court concerned is required to furnish to the accused copies of the following documents:
1. The police report;
2. The first information report recorded under Section 154;
3. 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;
4. The confessions and statements, if any, recorded under Section 164;
5. Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173
15. While the first proviso to Section 207 empowers the court to exclude from the copies to be furnished to the accused such portions as may be covered by Section 173(6), the second proviso to Section 207 empowers the court to provide to the accused an inspection of the documents instead of copies thereof, if, in the opinion of the court it is not practicable to furnish to the accused the copies of the documents because of the voluminous content thereof. We would like to emphasise, at this stage, that while referring to the aforesaid provisions of the Code, we have deliberately used the expression court instead of the expression Magistrate as under various special enactments the requirement of commitment of a case to a higher court (Court of Session) by the Magistrate as mandated by the Code has been dispensed with and the Special Courts constituted under a special statute have been empowered to receive the report of the investigation along with the relevant documents directly from the investigating agency and thereafter to take cognizance of the offence, if so required.
17. Seizure of a 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 Code. Such application of mind is both with regard to the specific offence(s) that the investigating officer may consider to have been committed by the accused and also the identity and particulars of the specific documents and records, seized in the course of investigation, which supports the conclusion of the investigating officer with regard to the offence(s) allegedly committed. Though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5) in every situation where some of the seized papers and documents do not support the prosecution case and, on the contrary, supports the accused, a 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, it is not impossible to visualise a situation whether the investigating officer ignores the part of the seized documents which favour the accused and forwards to the court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the court would it not be the duty of the court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution? What would happen in a situation where such documents are not forwarded by the investigating officer to the court is a question that does not arise in the present case. What has arisen before us is a situation where evidently the unmarked and unexhibited documents of the case that are being demanded by the accused had been forwarded to the court under Section 173(5) but are not being relied upon by the prosecution. Though the prosecution has tried to cast some cloud on the issue as to whether the unmarked and unexhibited documents are a part of the report under Section 173 CrPC, it is not denied by the prosecution that the said unmarked and unexhibited documents are presently in the custody of the court. Besides, the accused in her application before the learned trial court (IA No. 711 of 2012) had furnished specific details of the said documents and had correlated the same with reference to specific seizure lists prepared by the investigating agency. In such circumstances, it can be safely assumed that what has happened in the present case is that along with the report of investigation a large number of documents have been forwarded to the court out of which the prosecution has relied only on a part thereof leaving the remainder unmarked and unexhibited.
18. In a recent pronouncement in Manu Sharma v. State (NCT of Delhi) (2010 (2) SCC (Cri) 1385) to which one of us (Sathasivam, J.) was a party, the role of a Public Prosecutor and his duties of disclosure have received a wide and in-depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens rights under Articles 19 and 21 and also the active role of the court in a criminal trial have been exhaustively dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. The said scheme was duly considered by this Court in different paragraphs of the report.
19. The views expressed would certainly be useful for reiteration in the context of the facts of the present case: (Manu Sharma case, SCC pp. 84-86, paras 216-21) 216. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, which in his wisdom is required for proving the guilt of the offender. He can record the statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the court is absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with law. Under the proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible.
217. Further, Section 91 empowers the court to summon production of any document or thing which the court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-examination or the production of any document or other thing for which the court has to pass a reasoned order.
218. The liberty of an accused cannot be interfered with except under due process of law. The expression due process of law shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.
219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make 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, statements, confessional statements 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 a 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 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.
221. 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 bona fide 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 the administration of criminal justice and the defence of the accused prejudicially. (emphasis supplied)
17. Thus, from the above, it is seen that the duty to furnishing copies of the case documents under Section 207 Cr.P.C., to the accused itself is part of fair trial. They are necessary for the accused to defend himself effectively. If copies of some of the documents which ought to have been furnished to him by the committal Court, were not furnished to him, it is not an end itself. Either in Section 207 Cr.P.C., or in Section 209 of Cr.P.C., or in Chapter XVIII of the Code dealing with trial of sessions cases before the Sessions Court, there is no limitation or prohibition that after the commitment of the case to the Court of Sessions or during the trial before the Sessions Court, those copies cannot be asked for. Compliance of principles of natural justice incorporated in Section 207 Cr.P.C., cannot be limited upto the committal Court, or upto the commitment of the case to the Court of Sessions. Actually, in Sessions Cases, trial is conducted only in the Sessions Court and if copies of documents which ought to have been furnished to the accused, were not furnished to him by the committal Court, the accused will be handicapped. He cannot defend himself effectively. So, copies of those documents can be supplied to him, it can be asked for in the Sessions Court also. That would be complying the principle of natural justice and observing of the principles of fair trial.
18. Such furnishing of copies of documents is the duty of the Court. Even documents which were forwarded to the Court, which are not relied on by the prosecution, may be of helpful to the accused to establish his innocence. Copies of them can also be asked for by the accused. Copies of such documents also have to be furnished to the accused. But, if such documents are not forwarded to the Court by the police and are still with the police, it becomes the duty of the Court to direct the police to produce those documents to the Court and then the Court has to furnish copies of the same to the accused. However, when there is no such document the question of furnishing them to the accused will not arise at all.
19. Thus, the view of the learned III Additional Sessions Judge, Poonamallee that copies under Section 207 Cr.P.C., can be asked for only before the committal Court and not thereafter is not in accordance with law.
20. Thus, the order of the learned III Additional Sessions Judge, Poonamallee, in C.M.P.No. 182 of 2013 in S.C.No. 142 of 2013, dated 09.10.2013 is set aside. C.M.P.No. 182 of 2013 shall be restored to file. Copies of documents asked for by the accused, which are available shall be furnished to him.
21. Accordingly, this Criminal Original Petition is disposed of. Consequently, connected Miscellaneous Petition is closed.
25.11.2013 vsg Index: Yes/No Website: Yes/No To
1. The Principal Sessions Judge, Thiruvallur.
2. III Additional Sessions Judge, Poonamallee.
3. The Chief Judicial Magistrate, Thiruvallur.
P.DEVADASS, J.
vsg
4. The Inspector of Police, T.4 Maduravayal Police Station, Thiruvallore District.
5. The Public Prosecutor, High Court, Madras.
6. The Public Prosecutor, Union Territory of Puducherry, High Court, Madras.
Note: As this Judgement deals with important aspects of Section 173(5) and 207 Cr.P.C., and the latest Apex decision on the point containing guidance to the criminal courts, the Registry is directed to place it before My Lord, the Hon'ble Chief Justice, for orders to circulate it to all the Subordinate Courts in the State of Tamil Nadu and Union Territory of Puducherry.
Crl.O.P.No.29860 of 2013and M.P.No.1 of 2013 25.11.2013