Himachal Pradesh High Court
Arvind Malik vs State Of Himachal Pradesh on 23 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.629 of 2022 Date of Decision: 23.11.2022 .
_______________________________________________________ Arvind Malik .......Petitioner Versus State of Himachal Pradesh ... Respondent _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 For the Petitioner:
For the Respondent:
r toMr. N.S.Chandel, Senior Advocate with Mr. Pranav Sharma, Advocate.
Mr. Sudhir Bhatnagar and Mr. Narinder Guleria, Additional Advocate Generals with Ms. Svaneel Jaswal Deputy Advocate General and Mr. Sunny Dhatwalia, Assistant Advocate General.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Instant petition filed under Section 397 of the Code of Criminal Procedure, lays challenge to order dated 10.11.2022 passed by learned Sessions Judge(Forest)Shimla, District Shimla, H.P., whereby an application bearing Cr.MP No.3572 of 2022 in Sessions Trial No.11-S/7 of 2022, having been filed by the petitioner-
accused(hereinafter referred to as accused) under Section 91 of Cr.P.C., seeking therein direction to Medical Superintendent of IGMC, 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 25/11/2022 20:31:52 :::CIS 2
Shimla and PGI, Chandigarh to produce the treatment summary of deceased Sophia alongwith treatment chart, came to be dismissed.
2. Precisely, the facts of the case, as emerge from the .
record are that on 26.09.2021, at 9.30 PM, police Station, Junga received information with regard to accident of vehicle bearing registration No.CH-01-CC1762 being driven by deceased Smt. Sophia and as such, it reached on the spot and shifted aforesaid deceased Smt. Sophia to IGMC, Shimla. However, subsequently on 27.09.2021, above named deceased was shifted to Chandigarh, where at first instance she was admitted in the private hospital and thereafter referred to PGI, Chandigarh. Unfortunately on 12.10.2021, above named deceased Smt. Sophia died on account of the injuries suffered by her in the accident. Since deceased was not in a position to make statement on 27.9.2021 and 5.10.2021 while she was admitted in IGMC, Shimla and thereafter at PGI, Chandigarh, police visited PGI, Chandigarh on 8.10.2021 and recorded the statement of the deceased at 11.5 AM, wherein she alleged that her husband i.e. present petitioner inflicted injury with stone on his forehead and thereafter thrown the vehicle alongwith her in gorge. In the aforesaid background, FIR came to be registered against the petitioner and after completion of the investigation, police has already presented the challan in competent court of law.
::: Downloaded on - 25/11/2022 20:31:52 :::CIS 33. Vide order impugned in the instant proceedings though learned Court below has already framed charge against the petitioner, who is behind bars under Section 302 of IPC, but since his prayer .
made by way of an application under Section 91Cr.P.C, seeking therein direction to Medical Superintendents( IGMC, Shimla and PGI, Chandigarh) to make available record with regard to treatment given to the deceased, came to be dismissed, he has approached this Court in the instant proceedings, praying therein to set-aside aforesaid impugned order dated 10.11.2022 (Annexure P-3) inasmuch as application under Section 91 Cr.P.C, having been filed by the petitioner came to be dismissed.
4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has put in appearance on behalf of the respondent-State. He fairly states that no reply is intended to be filed to the instant petition and same can be disposed of on the basis of the material already available on record.
5. Mr. N.S.Chandel, learned Senior Counsel representing the petitioner while making this court to peruse provision contained under section 91 Cr.P.C, vehemently argued that Court with a view to unravel the truth can direct production of any document or other thing, which may be necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this Code.
::: Downloaded on - 25/11/2022 20:31:52 :::CIS 4Learned counsel for the petitioner argued that since it is the specific case of the prosecution that deceased Smt. Sophia was unable to get her statement recorded on 26.09.2021 and 27.09.2021 while she was .
admitted in IGMC, Shimla and thereafter at PGI, Chandigarh on account of the injuries suffered by her on her forehead, it is not understood that how on 8.10.2021 suddenly deceased became conscious and gave statement to the police against the petitioner on the basis of which, FIR came to be lodged. Learned counsel for the petitioner further argued that medical record with regard to treatment given to deceased Sophia at IGMC, Shimla and thereafter PGI, Chandigarh prior to her giving statement, if any, on 8.10.2021 is very much necessary for proper adjudication of the case and as such, learned Court below while exercising power under section 91 Cr.P.C ought to have summoned aforesaid record. Lastly, learned counsel for the petitioner submitted that very object of Section 91 Cr.P.C is to ensure that no injustice is caused to the accused and all opportunity is afforded to him/her to prove his/her innocence. Since in the case at hand documents, sought to be produced, are relevant to determine the correctness of the allegations contained in the FIR, order impugned in the instant proceedings, thereby rejecting application filed under Section 91 Cr.P.C., is not sustainable in the eye of law.
::: Downloaded on - 25/11/2022 20:31:52 :::CIS 56. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while supporting the impugned order, vehemently argued that application, if any, under Section 91 Cr.P.C. is not maintainable .
on behalf of the petitioner-accused because bare perusal of Section 91 Cr.P.C., clearly reveals that power to produce any document under this provision of law can be only exercised by the Court, if it finds it necessary to cause presence of the documents or other things, which may be relevant for the adjudication of the case at hand. Learned Additional Advocate General further argued that documents sought to be produced otherwise could be easily obtained by petitioner-accused under Right to Information Act and same can be subsequently produced in defence evidence and as such, no illegality can be said to have been committed by the Court below while passing the impugned order.
7. I have heard learned counsel for the parties and gone through the record carefully.
8. Before ascertaining the correctness and genuineness of the rival submissions made on behalf of learned counsel for the parties, this Court at first instance deems it fit to take note of provision contained under Section 91 of Cr.P.C. Bare perusal of aforesaid provision of law clearly suggests that Court has ample power to cause production of such documents or other things believed to be in ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 6 possession of some person, if it is relevant for adjudication of the case. Though, plain reading of aforesaid provisions of law reveals that Court if during proceedings of the case finds it necessary to cause .
production of any document or other thing necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings can direct person in whose possession or power such documents to produce the same, but definitely there is nothing in the aforesaid provision of law to conclude that such prayer cannot be made by accused .While filing an application under aforesaid provisions of law, accused with a view to prove his innocence can always make request to court to cause production of certain documents, which may help him/her to establish her/his innocence.
9. Issue with regard to competence of Court to ensure production of any document or other thing, "necessary or desirable"
for the purpose of any investigation, inquiry, trial or other proceedings under the Code, is no more res-integra, rather has been specifically dealt with elaborately by this Court in judgment dated 16.4.2018, passed in Cr.MMO No. 484 of 2017 , titled as Ishwar Dass v. State of HP, wherein this Court while interpreting the scope of Section 91 Cr.P.C has categorically held that provisions contained under Section 91 Cr.P.C casts a duty upon the court to cause production of document or a thing believed to be in possession of some other ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 7 person, if it considers production of such document necessary for adjudication of the case. While making aforesaid observations, this Court in the aforesaid judgment has categorically held that Court will .
not create evidence in favour of an accused or prosecution but, it is bounden duty of the court to discover truth about allegations against the accused. Issuance of direction, if any, under Section 91, whereby Court enjoys power to cause production of document or a thing believed to be in possession of some person, definitely cannot be considered to be creation of evidence in favour of the accused, who makes an application under Section 91 Cr.P.C. In the aforesaid judgment, this Court held that necessity or desirability would have to be seen with reference to the stage when prayer is made for the production. If any document is necessary or desirable for the defence of the accused, question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. Relevant paras of the aforesaid judgment are as follows:-
"6. Moreover, issue with regard to the competence of the court to ensure production of any document or other thing, "necessary or desirable", for the purpose of any investigation, inquiry, trial or other proceedings under the Code, is no more res-integra, rather has been dealt with elaborately by this Court in its judgment dated 16.4.2018, passed in Cr.MMO No. 484 of 2017 (Ishwar Dass v. State of HP)., wherein this Court while interpreting the scope of Section 91 Cr.PC has ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 8 categorically held that provisions contained under Section 91 Cr.PC casts a duty upon the court to cause production of document or a thing believed to be in possession of some other person, if it considers production of such document .
necessary for adjudication of the case. It has been further held by this Court that court will not create evidence in favour of an accused or prosecution but, at the same time, it is bounden duty of the court to discover truth about allegations against the accused. Issuance of direction, if any, under Section 91, whereby court enjoys power to cause production of document or a thing believed to be in possession of some person, definitely cannot be considered to be creation of evidence in favour of the accused, who makes an application under Section 91.
7. This Court in the aforesaid judgment has held that necessity or desirability would have to be seen with reference to the stage when prayer is made for the production. If any document is necessary or desirable for the defence of the accused, question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. Relevant paras of the aforesaid judgment are as follows:-
17. Section 91 pre-supposes that when a document is not produced, process may be initiated to compel production thereof. Any document or thing as envisaged under Section can be produced if it is found that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code. First and the foremost requirement of the section is of the document being necessary or desirable. Necessity or desirability would have to be seen with reference to the stage when prayer is made for the production. If any document is necessary or desirable for the defence of the accused, question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When this section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under this section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in this Section. In so far as accused is ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 9 concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of his defence.
18. Reliance is placed upon judgment of Hon'ble Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, wherein it has been held as under:
.
"23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided.
24. On behalf of the accused a contention about production of documents relying upon Section 91 of the Code has also been made. Section 91 of the Code reads as under:
"Summons to produce document or other thing.(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2)........................................................................... (3)..........................................................................."
25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 10 necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that .
stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.
26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI, Delhi[(2000) 5 SCC 679]. In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra's case (supra). The contentions based on Satish Mehra's case have been noticed in para 4 as under:
"The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. ((1996) 9 SCC 766) laying emphasis on the fact the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State ((1999) 49 DRJ 202). Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings.
27. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 11 Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result .
in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.
28. We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry.
29. r Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case."
19. It is quite apparent from the aforesaid exposition of law that necessity and desirability of document sought to be produced with the assistance of the court is to be examined considering the stage when such prayer for summoning and production is made and party which makes such prayer, either police or the accused. But, definitely, application, if any, under Section 91 on the part of accused can be made at the stage of defence.
20. Ratio laid down in aforesaid judgment came to be reiterated in the recent judgment of Hon'ble Apex Court in M/s V.L.S. Finance Ltd. v. S.P. Gupta and anr, Criminal Appeal No. 99 of 2016 decided on 5.2.2016, wherein it has been held as under:
"43. Before we proceed to dwell upon the power of the Magistrate to grant permission for not pressing the application, we think it necessary to delve into legality of the direction issued by the High Court to the Magistrate to consider the documents filed by the accused persons along with the ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 12 application preferred under Section 91 Cr.P.C. Section 91 Cr.P.C. reads as follows:-
"Section 91. Summons to produce document or other thing.- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other .
thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) 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 123 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."
44. The scope and ambit of the said provision was considered in State of Orissa v. Debendra Nath Padhi[17], wherein this Court has held thus:- "The first and foremost requirement of the section is about the document being necessary or desirable.
The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 13 of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to .
produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof." The aforesaid enunciation of law clearly states about the scope of Section 91 Cr.P.C. and we are in respectful agreement with the same."
10. If the aforesaid judgment passed by this Court in Ishwar Dass case (supra), which is squarely based upon the judgments passed by Hon'ble Apex Court in various cases, is perused in its entirety, it clearly reveals that in criminal trial prosecution is expected to be absolutely fair and impartial because main purpose of criminal trial is not to get someone convicted, rather its object is to discover truth and punish the accused, if found guilty.
11. Hon'ble Apex Court in V.K. Sasikala v. State (2012) 9 SCC 771, has held that the courts must ensure fairness of the investigative process so as to maintain the citizens' rights under Articles 19 and 21 and also active role of the court in a criminal trial.
Hon'ble Apex Court has further held that it is responsibility of the investigating agency as well as of Court to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It is 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 ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 14 entitled to under the scheme contemplated by the Code of Criminal Procedure. Relevant paras of the aforesaid judgment are as under:-
.
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.
9. Hon'ble Apex Court in judgment referred herein above has cate-
gorically ruled that 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 fru- strate the very basis of a fair trial. Very importantly, the Hon'ble Apex Court in the case referred herein above has held that absence of any claim on the part of the accused to the said documents at any earlier point of time cannot have the effect of foreclosing such a right of the accused. Absence of such a claim, till the time when ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 15 raised, can be understood and explained in several reasonable and acceptable ways. Difficulty or handicap in putting forward a defence would vary from person to person and there can be no uniform yardstick to measure such perceptions.
.
12. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Manoj Kumar and others vs. State of Madhya Pradesh in Criminal Appeal No.248-250 of 2015, decided on 20th May, 2022, wherein it has been held as under:-
"175. In the present case, the trial court ought to have inquired more deeply into the role of DW-1, given that by her own deposition she had admitted to analyzing call detail records and involvement in Neha's arrest - all of which had been suppressed by the prosecution side, for reasons best known to them. In this context, a reading of Section 91 and 243 CrPC as done in Manu Sharma, is important to refer to:
"217. ..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."
176. The court went on to elaborate on the due process protection afforded to the accused, and its effect on fair disclosure responsibilities of the public prosecutor, as follows:
"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 ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 16 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.
79 Role of the courts in a criminal trial has been discussed in Zahira Habibulla H.Shiek v. State of Gujarat (2004) 4 SCC
158.
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 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 ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 17 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 administration of criminal justice and the defence of the accused prejudicially.
222. The concept of disclosure and duties of the Prosecutor under the English system cannot, in our opinion, be made applicable to the Indian criminal jurisprudence stricto sensu at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any setback in the facts and circumstances of the case. The accused even did not raise this issue seriously before the trial court.
(emphasis supplied)
177. In this manner, the public prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the accused's right to fair investigation, when faced with the might of the state's police machinery".
::: Downloaded on - 25/11/2022 20:31:52 :::CIS 1813. In the case at hand, precise case of the petitioner-
accused is that record with regard to medical treatment, if any, given to deceased Sophia in IGMC, Shimla and thereafter PGI, Chandigarh .
would help him to prove that deceased Sophia was unconscious and not fit to make statement to the police with regard to injury, if any, caused by petitioner. As per prosecution story, deceased Sophia was not fit to give statement till 5th October 2021, while she was admitted in PGI, Chandigarh. However, subsequently on 8.10.2021, Incharge Police Post, Junga visited PGI, Chandigarh and recorded the statement of the deceased at 11.15 AM, wherein deceased Sophia alleged that her husband firstly hit her with stone on head and thereafter pushed her vehicle into a gorge. In case petitioner is able to show from the record of PGI, Chandigarh that deceased Sophia never regained consciousness before her death, he may definitely have great help from the documents, sought to be produced by him, to prove his innocence. Otherwise also, it is not understood that what prejudice, if any, would be caused to the prosecution in case documents sought to be produced are ordered to be produced by the authorities, in whose possession such documents are, rather production, if any, of the same would help court below to adjudicate the case in most impartial and fair manner. Charges already stand framed against accused and in case, documents sought to be ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 19 produced are permitted to be produced, accused may be in position to put such documents to the prosecution witnesses in cross-
examination to establish his innocence. Petitioner is seeking .
production of such documents, which he feel would help in defending himself and as such, prosecution cannot be permitted to argue that petitioner is trying to make any roving or fishing inquiry or making an unreasonable request. As has been held by this Court as well as Hon'ble Apex Court in various judgment, as have been taken note hereinabove, the prosecution has to be absolutely fair and impartial and opportunity to the fullest is required to be given to the accused to prove his/her innocence. Moreover, in the case at hand, accused is already behind bars and as such, there appears to be no force in the argument of learned Additional Advocate General that application has been filed with a view to delay the trial. Since petitioner is already behind the bars and he claims himself to be innocent, it cannot be believed/presumed that he would be making endeavour if any, to delay the trial.
14. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly same is allowed and impugned order dated 10.11.2022, is quashed and set-aside.
Application having been filed under Section 91 Cr.P.C is allowed and ::: Downloaded on - 25/11/2022 20:31:52 :::CIS 20 learned Court below is directed to cause production of the documents sought to be produced expeditiously, preferably before recording the statement of material witnesses.
.
15. The present petition is disposed of in the aforesaid terms alongwith pending application(s), if any.
(Sandeep Sharma),
Judge
23rd November, 2022
(shankar)
r to
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