Rajasthan High Court - Jaipur
(Prakash Chand Baid vs . State Of Rajasthan & Anr.) on 5 June, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B.Criminal Misc.Petition No.851/2014 (Prakash Chand Baid Vs. State of Rajasthan & Anr.) Date of Order ::::: 05.06.2015 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.Vimal Choudhary with Mr.Gaurav Choudhary, for the petitioner. Mr.Prakash Thakuria,Public Prosecutor for State.
Mr.J.P.Goyal, Sr.Advocate with Mr.Rahul Ghiya, for the respondent.
REPORTABLE:
The accused-petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 18.7.2013 passed by the Metropolitan Magistrate No.17, Jaipur Metropolitan, Jaipur in Criminal Case No.66/2010 whereby learned trial Court dismissed the application dated 12.1.2010 filed by the petitioner with a prayer to take off from the record documents Ex.P1 to P9 filed by the respondent-complainant on 3.8.2009.
Brief relevant facts for the disposal of this petition are that a written complaint came to be filed by the respondent-complainant on 22.7.1999 against the accused-petitioner before the Chief Judicial Magistrate, Jaipur City, Jaipur for the offences under Sections 420 and 406 IPC and it was sent for investigation under Section 156 (3) Cr.P.C. to Police Station Manak Chowk, Jaipur and on that basis, FIR No.278/99 for the aforesaid offences was registered on 2.8.99 and after investigation charge-sheet was filed against the petitioner. Along with the charge-sheet, apart from other evidence, photostat copy of three documents as collected during investigation was also filed, but no original documents were filed . Cognizance for the aforesaid offences was taken by the trial Court on 2.11.1999 and vide order dated 3.5.2008 charge only for offence under Section 406 IPC was framed against the petitioner and trial commenced. During the course of trial, on 3.8.2009 some original documents were filed before the trial Court on behalf of the respondent-complainant and his examination-in-chief was recorded on 27.11.2009 and during its course, documents filed on 3.8.2009 and some other documents were exhibited and he was also partly cross-examined. The respondent-complainant was further cross-examined on behalf of the accused-petitioner on 12.1.2010, but it could not be concluded. Thereafter, on 12.1.2010 present application was filed with the averment that during the course of cross-examination of the complainant on perusal of record of the Court, it was found that counsel for the complainant without prior permission of the Court filed some documents on 3.8.2009 and during the course of examination-in-chief they were exhibited also. It was further averred that documents which have been exhibited as Ex.P1 to Ex. P9 were not collected during investigation and they were not filed alongwith the charge-sheet and, therefore, they be taken off from the record. Reply to the application was filed on behalf of the prosecution on 20.2.2010 and the learned trial Court after hearing both the parties vide impugned order dated 18.7.2013 dismissed the aforesaid application. Feeling aggrieved, the accused-petitioner is before this Court by way of this petition with a prayer to set aside the same.
In support of the petition, learned counsel for the petitioner raised the following grounds:-
(1) Although, FIR was registered on the basis of a complaint filed by the respondent-complainant before the trial Court, but as after investigation charge-sheet was filed and cognizance was taken by the Court below under Section 190 (1) (b) Cr.P.C., the complainant-respondent had no authority to appear before the trial Court through his counsel and file original documents on 3.8.2009 without permission of the Court as his position in the case after filing of the charge-sheet was, at the most, of a prosecution witness. As per sub-section (2) of Section 301 Cr.P.C., a pleader on behalf of a private person may act, at the most, under the direction of the Assistant Public Prosecutor who is in charge of case and can not act independently.
(2) Once charge-sheet is filed in a Court, additional evidence, oral or documentary, cannot be filed and only that evidence can be produced during trial on behalf of the prosecution which was submitted alongwith the charge-sheet. Otherwise also, even if in a case additional evidence, oral or documentary, is required to be filed on behalf of the prosecution, the same can be filed only by Public Prosecutor/Additional Public Prosecutor/Assistant Public Prosecutor and that too only with the prior permission of the Court, but in the instant case counsel for the complainant without any authority and permission of the trial Court produced original documents without furnishing copy of the same to the accused-petitioner or his counsel.
(3) Although, investigating agency has an authority under Section 173 (8) Cr.P.C., to further investigate a case and to collect additional evidence, but in the present case no such investigation was undertaken with or without prior permission of the trial Court and, therefore, even prosecution was not entitled to produce additional evidence in the form of original documents before the trial Court.
(4) Merely because during the course of examination-in-chief of the respondent-complainant some of the documents were exhibited without objection by the petitioner, he cannot be estopped to raise such objection.
(5) In the facts and circumstances of the case provisions of Section 91 and 311 Cr.P.C. are not applicable in the present case.
In support of the submissions, learned counsel for the petitioner relied upon the cases of Shiv Kumar Vs. Hukam Chand & Anr. reported in (1999) 7 SCC 467, Rama Chaudhary Vs. State of Bihar reported in (2009) 6 SCC 346 and J.Yashoda Vs. K.Shobha Rani reported (2007) 5 SCC 730.
On the other hand, learned Public Prosecutor assisted by learned counsel for the respondent-complainant controverting the submissions made on behalf of the petitioner submitted as below:-
(1) The documents in question were produced before the trial Court on 3.8.2009 in the presence of counsel for the petitioner but at that time no such objection was raised and lateron they were also exhibited without any objection during the course of examination-in-chief of the complainant and, therefore, the petitioner is now estopped to raise such an objection more particularly in view of the fact that objection was also not raised on 27.11.2009 when complainant was partly cross-examined and also on 12.1.2010 which he was further cross-examined.
(2) Infact, these documents were filed before the trial Court on 3.8.2009 by the concerned Assistant Public Prosecutor, but in the order-sheet it was wrongly mentioned that counsel for the complainant has filed these documents and this fact was clarified in the reply dated 20.2.2010 filed by the prosecution to the application dated 12.1.2010.
(3) Otherwise also, there is no provision in any statute including Code of Criminal Procedure prohibiting a victim/complainant to produce additional evidence, oral or documentary, during the course of trial.
(4) As per Section 91 Cr.P.C., Court is empowered to summon any document which is necessary or desirable for the proper disposal of case. In the present case, as the documents in question are necessary and desirable for the proper disposal of the case and, therefore, once they have come before the Court and have also been exhibited, no illegality or perversity can be said to have been committed by the trial Court if the application filed by the petitioner has been dismissed.
I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well the relevant legal provisions and the case law.
The moot question for consideration and decision before this Court is "whether any illegality or perversity has been committed by the learned trial Court by dismissing the application filed by the accused-petitioner requiring interference of this Court more particularly in view of the fact that documents in question were filed before the trial Court in the presence of counsel for the petitioner and they were exhibited also without any objection during the course of examination-in-chief of the respondent-complainant?".
Relevant portion of sub-section (1) of Section 91 Cr.P.C. provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producment of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it.
As per Section 311 of the Code of Criminal Procedure, any Court may, at any stage of any trial under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Under this provision also wide discretion has been conferred upon the Court to exercise its power and paramount consideration is just decision of the case. In my opinion under this provision it is permissible for the Court even to order production of a document before it if it is essential for the just decision of the case.
As per Section 173 (8) Cr.P.C. carrying out a further investigation and collection of additional evidence even after filing of charge-sheet is a statutory right of the police and for that prior permission of the Magistrate is not required. If during the course of such further investigation additional evidence, either oral or documentary, is collected by the Police, the same can be produced before the Court in the form of supplementary charge-sheet. The prime consideration for further investigation and collection of additional evidence is to arrive at the truth and to do real and substantial justice. The material collected during further investigation cannot be rejected only because it has been filed at the stage of the trial.
As per Section 231 Cr.P.C., the prosecution is entitled to produce any person as a witness even though such person is not named in the charge-sheet.
It is well settled that the goal of a criminal trial is to discover the truth and to achieve that goal the best possible evidence is to be brought on record.
In view of the aforesaid legal position, it is clear that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case. In the present case, it can not be disputed that the documents in question are relevant and necessary for the proper disposal of the case and, therefore, even if they were not filed alongwith the charge-sheet and were filed by the complainant or his counsel without permission of the trial Court even then it cannot be said that illegality or perversity has been committed by the trial Court by dismissing the application filed by the petitioner more particularly in view of the fact that objection was raised on his behalf neither at the time when these documents were filed nor when they were exhibited during the course of examination-in-chief of the respondent-complainant and even soon thereafter. So far as the case law relied upon on behalf of the petitioner is concerned, it being based on different fact situation, is of no help to him.
Consequently, the criminal misc.petition is, hereby, dismissed. The stay application also stands dismissed.
(PRASHANT KUMAR AGARWAL), J teekam Reserved order.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary