Madhya Pradesh High Court
Manoj Patel vs The State Of Madhya Pradesh on 13 February, 2024
Author: Sheel Nagu
Bench: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 13 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 4648 of 2024
BETWEEN:-
MANOJ PATEL S/O SHRI GANGARAM PATEL, AGED
ABOUT 39 YEARS, OCCUPATION: PRESIDENT IN
COOPERATIVE SOCIETY R/O VILLAGE SILGI, POLICE
STATION BMHANI BANZAR, DISTRICT MANDLA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI PRAKASH UPADHYAY - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH E.O.W.
JABALPUR DISTRICT JABALPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MADHUR SHUKLA - ADVOCATE)
T h is application coming on for admission this day, Justice Vinay
Saraf passed the following:
ORDER
Applicant- Manoj Patel who is facing criminal prosecution for the offences punishable under Sections 409, 420, 120 of IPC and 13(1)(d), 13(2) of Prevention of Corruption Act, has preferred application under Section 482 of Cr.P.C. for setting aside order dated 17.1.2024 passed by Special Judge cum 1st Additional Sessions Judge, Mandla in S.C. (E.O.W.) No.01/2018, whereby learned trial Court allowed application filed by respondent-Investigating Agency (E.O.W.) for accepting document produced by witness Ramprasad Chandrol in Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/17/2024 2:09:04 PM 2 evidence.
2. Shri Prakash Upadhyay learned counsel appearing on behalf of applicant submits that document in question was not filed along with charge-sheet and it is not a relied upon document, therefore, witness and/or investigating agency could not be permitted to produce additional document during course of trial at the time of recording statement of witness and learned trial court has committed serious error in allowing application for producing additional document by witness, directly, without following procedure of further investigation as contemplated under Section 173(8) of Cr.P.C. He further submits that, procedure adopted by prosecuting agency is not in conformity with the provisions of Section 173 (5) of Cr.P.C., which provides filing of all documents along with final report after completion of investigation. Applicant objected filing of new/fresh document by witness during trial without furnishing copy of same to applicant/accused before starting trial. It is argued that, document was produced before trial Court from the custody of witness with a malafide intention to disturb line of defence setup by applicant during trial and to fill up lacuna of prosecution case. Applicant prays for setting aside order and disallowing the document produced by Ramprasad Chandrol (PW-5).
3. Learned counsel for applicant relied upon judgment delivered by High Court of Bombay in Bhagyashree Prashand Wasankar vs. State of Maharashtra, 2021 SCC OnLine Bom 1064, wherein learned Single Bench of Bombay High Court held that in a sessions trial, no additional documents can be produced by witness directly as same would prejudice accused persons by depriving them of a fair opportunity to prepare their defence. It is further held that additional documents could be produced by following procedure of further Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/17/2024 2:09:04 PM 3 investigation as contemplated under Section 173 (8) of Cr.P.C. Para 21 of the judgment is extracted herein:-
'21. A perusal of the provisions of the Cr.P.C. and the entire scheme contemplated therein demonstrates that there is no provision available for a witness to directly seek production of additional documents during the course of sessions trial and at the time of recording of his / her evidence. The Sessions Court in the present case failed to appreciate this aspect of the matter. While passing the impugned order, the Sessions Court also failed to appreciate that permitting such production of additional documents by the witnesses directly would prejudice the accused persons by depriving them of a fair opportunity to prepare their defence. The whole purpose of filing of charge-sheet, upon completion of investigation along with documents upon which the prosecution desires to place reliance, would be defeated if witnesses are permitted to directly produce additional documents in such a manner.'
4. Per contra, Shri Madhur Shukla, learned counsel for respondent supported impugned order passed by trial Court and submits that document in question is a relevant document and document was produced before trial Court from the possession of witness and when witness produced the document, prosecution moved an application under Section 242(3) of Cr.P.C. to accept the document in evidence, which was allowed. According to prosecution, Section 242(3) of Cr.P.C. provides for taking all such evidence as may be produced in support of prosecution. Shri Madhur Shukla prays for dismissal of petition.
5. Section 5(1) of Prevention of Corruption Act, 1988 (in short 'P.C. Act'), provides that Special Judge is obliged to follow procedure prescribed by Cr.P.C. for trial of warrant-case by Magistrate. For the sake of convenience, Section 5(1) of P.C. Act is reproduced herein:-
Section 5(1): A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrate.
6. Procedure for trial of warrant cases is prescribed under Chapter XIX of Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/17/2024 2:09:04 PM 4 Cr.P.C., whereas procedure for trial before a Court of Sessions is prescribed under Chapter XVIII. In the present matter, charges under Section 13(1)(d) r/w 13(2) of P.C. Act have also been framed along with charges under Sections 409, 420, 120-B of IPC, therefore, procedure prescribed for warrant trial is applicable. Judgment relied by Shri Prakash Upadhyay, Advocate is not helpful to applicant as same is in respect of Sessions Trial Court. In same judgment, Bombay High Court has held that provisions of Section 242 of Cr.P.C. are applicable to warrant trial, which provides to accept additional document. However, the same was not applied as case in hand before Bombay High Court was of Sessions Trial. Para 20 of the said judgment is reproduced as under:
'20. A perusal of the impugned order shows that there is a reference made to Section 242 of the Cr.P.C. A perusal of the said provision would show that it pertains to the power of the Magistrate to issue summons to any witness on the application of the prosecution, directing such witness to produce any documents or thing. In this provision also, the words "on the application of the prosecution", have been used. Even otherwise, Section 242 of the Cr.P.C. is found in Chapter XIX pertaining to trial of warrant cases by the Magistrate. But, in the present case, the Court below is concerned with a sessions trial under Chapter XVIII of the Cr.P.C. Therefore, reference to Section 242 of the Cr.P.C. by the Court below is also misplaced'.
7. Section 242 of Cr.P.C. provides procedure for recording of evidence of prosecution, if accused is not convicted under Section 241 of Cr.P.C. Section 242 of Cr.P.C. is reproduced as under:
'Section 242: Evidence for prosecution. (1) If the accused refuses to plead, or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination of witnesses:
Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/17/2024 2:09:04 PM 5
Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination'.
8. Section 242(2) of Cr.P.C. provides that Magistrate may, on application of prosecution, issue a summons to any of its witness directing him to attend or to produce any document or other thing and sub section (3) provides that on the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. Under these provisions, prosecution is required to move an application for issuing of summons to its witness to attend the Court or to produce document or to do any other thing. For purpose of applying Section 242(2) of Cr.P.C., essential conditions are (i) witness must be a listed witness, (ii) prosecution must be desiring to call the witness, (iii) an application on behalf of prosecution should be filed and (iv) witness should be asked either to depose orally or to produce any document or to do anything.
Sub Section (3) makes it obligatory for Magistrate to take all such evidence as may be produced in support of prosecution case. Meaning thereby, Magistrate cannot refused to accept the evidence in support of prosecution case.
9. A lacuna in the prosecution is not to equated with the fallout of an oversight committed by prosecution during trial by not producing relevant materials or documents. The Court can accept the same even filed for fulfilling lacuna. Apex Court in the matter of Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 has held as under:-
8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna.
No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/17/2024 2:09:04 PM 6 parties or to find out and declare who among the parties performed better.
10. Similar issue was dealt by learned Single Judge of High Court of Hyderabad in the matter of Jupudi Prakash vs. State of A.P., 2018 SCC OnLine Hyd 729 and the relevant paras are as under:-
9. Admittedly, the prosecution has filed a petition under Section 242 (2) Cr.P.C. seeking permission to receive the documents through P.W.1. Section 242 (2) Cr.P.C. reads thus:
"The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."
--------x--------x---------
11. -----------------------The trial Court on consideration of contentions of both sides, has passed appropriate order permitting the prosecution to file those documents, subject to proof and relevancy. Therefore, there is no prejudice caused to the accused by receiving the documents by the trial Court in view of the above provision.
11. Learned Single Judge of M.P. High Court dealing with an issue to take the additional document (MLC) on record filed along with an application under Section 242(2) of Cr.P.C. passed an order on 24.3.2022 in M.Cr.C. No.10091 of 2022 (Smt. Manjari Dixit vs. State of M.P. and another) and held as under:-
17- The police has filed a copy of the discharge ticket along-with the charge- sheet, therefore, the fact that applicant suffered fracture due to offensive act of her husband is already on record. Unless and until primary evidence of sustaining fracture is produced and proved before the Trial Court, the prosecution would not be able to prove the allegation that complainant had suffered fracture merely because it is mentioned in the discharge ticket. 18- Under these circumstances, this Court is of the considered opinion that the Trial Court should have taken the x-ray report as well as MLC of applicant prepared at Mascot Hospital on record.
12. Apex Court in the matter of CBI vs. R.S. Pai (2002) 5 SCC 82 observed as under:-
7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/17/2024 2:09:04 PM 7 produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word "shall" used in sub-section (5) cannot be interpreted as mandatory, but as directory.
13. In the present matter it is not in dispute Ramprasad Chandrol (PW-5) is named as one of the prosecution witnesses in the list annexed with final report. He was called upon at the request of prosecution. He brought a new document which is a certificate issued by accused as President of Society and counter signed by Branch Manager of Jila Sahakari Kendriya Bank Maryadit, Mandla for certifying the waiver of loan obtained for the purpose of agriculture. When PW- 5 produced the document before trial Court, prosecution moved an application to accept the document as evidence. In this way, prosecution has followed all essential conditions contemplated under Section 242 of Cr.P.C. and trial Court has not committed any error, irregularity or illegality in accepting the document in evidence. More so, there is no such provision in Cr.P.C. which prohibits any witness to produce a document before trial Court at the time of dispute. There is no such requirement prescribed in Cr.P.C. for a witness to produce the document in advance, which is in his possession and can throw a light to the issue involved before tendering in evidence. Provision of Section 173(8) of Cr.P.C. is prescribed for investigating agency to carry out further investigation and enabling to file supplementary final report or additional document/evidence before the Court.
14. In the present case, document has not been produced on record by investigating agency and same has been brought on record by a witness. Even otherwise, it is expected from a witness to produce all relevant evidence before Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/17/2024 2:09:04 PM 8 trial Court, which are in his possession, whether demanded or not. Section 162 of the Evidence Act also provides that a witness is duty bound to produce a document if he is in possession or power of the documents and the admissibility of the document can be decided by the Court at the time of producing the document. The word admissibility involves all sorts of objections to production, relevancy and admissibility in respect of the documents.
15. Applicant/accused will get full opportunity to cross-examine the witness on the basis of document produced by him during deposition.
16. Consequently, admission is declined. Present application is dismissed. No order as to costs.
(SHEEL NAGU) (VINAY SARAF)
JUDGE JUDGE
irfan
Signature Not Verified
Signed by: MOHD IRFAN
SIDDIQUI
Signing time: 2/17/2024
2:09:04 PM