Allahabad High Court
Sri Prakash Mishra @ Nem Mishra vs State Of U.P. And Another on 7 February, 2020
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 77 Case :- APPLICATION U/S 482 No. - 5137 of 2020 Applicant :- Sri Prakash Mishra @ Nem Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Siddhartha Kumar Mishra, Indra Kumar Chaturvedi (Senior Adv.) Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
Heard Mr. Indra Kumar Chaturvedi, learned Senior Advocate assisted by Mr. Siddhartha Kumar Mishra, learned counsel for applicant and Mr. Virendra Kumar Maurya, learned Additional Government Advocate, assisted by Mr. Vikash Chandra Tewari, learned brief holder for the State of U.P./opposite party No.1 and perused the record with the assistance of learned counsel for the parties.
This application under section 482 of Code of Criminal Procedure, (herein-after referred to as 'Cr.P.C'.) has been preferred by the applicant against the order dated 19.12.2019 passed by the learned Additional Sessions Judge (Fast Track Court-I), Bhadohi-Gyanpur in Sessions Trial No. 87 of 2018 (State vs Shri Prakash Mishra) arising out of Case Crime No. 94 of 2010, under section 376 IPC, police station Aurai, district Bhadohi, whereby application No. 6 Kha, dated 10.04.2018 under section 207 Cr.P.C. moved on behalf of the applicant has been rejected. Further prayer has been made to direct the trial court to supply the copy of relevant documents as mentioned in the application dated 10.04.2018 as per provision of section 207 Cr.P.C.
The main issues, which have arisen for consideration in the present case, are as under:
(i) "Whether any document which is neither part of case diary nor police report under section 173 Cr.P.C., on which the prosecution does not propose to rely can be given to accused in compliance of provisions contained under section 207 of Code of Criminal Procedure ?"
(ii) "Whether documents as mentioned in section 207 of Code of Criminal Procedure can be supplied to accused even after commitment of case to the Court of Sessions, in case same has not been supplied to accused either in full or in part before commitment of case to the Court of Sessions?"
After going through the record of this case, I find that this is an old case of the year 2010 and is being unnecessarily dragged since long on the issue of compliance of the provisions provided under section 207 of Cr.P.C. Since, this case has a chequered history in this regard, therefore, before delving into the issue, it is necessary to mention factual matrix of the case in brief. The occurrence is alleged to have been taken place on 26.03.2010 at village Sikarha, police station Handia, district Allahabad and the first information report was lodged by victim on 27.03.2010 registered at Book No. 036427 at police station Aurai district Sant Ravidas Nagar (Bhadohi). The investigation of the case was conducted by the police of police station Aurai, district Sant Ravidas Nagar and the charge sheet was submitted on 14.06.2010 against the applicant, on which cognizance had already been taken by the Magistrate concerned on 22.06.2010.
As per the case of the accused-applicant, same first information report was also registered at Book No. 036428, but on account of some irregularities, original copy of the same was not forwarded to court. On 05.11.2011, 06.06.2011, 08.09.2015 and 12.05.2016, applications were moved on behalf of the applicant to provide copy of all the documents/police papers along with copy of first information report registered at Book No. 036428. The aforesaid applications of the applicant has been decided vide order dated 28.05.2016 directing the concerned clerk to prepare copy of all the documents, on which prosecution proposes to rely and to provide the same to the applicant, but so far as the prayer of the applicant for providing copy of first information report registered at Book No. 036428 is concerned, the same was rejected by the same order dated 28.05.2016 observing that as per report submitted by police, the first information report dated 27.03.2010 of this case was registered at Book No. 036427, original copy of said first information report is available on record and considering the same, cognizance of this case was taken by the Magistrate. It is also observed that due to inadvertent mistake, on the basis of same information, another first information report was also registered at Book No. 036428, therefore, it is not justified to give copy of the same to the applicant for the purpose of this case.
The aforesaid order dated 28.05.2016 had been challenged by the applicant in Criminal Revision No. 39 of 2016 before the Sessions Judge, Bhadohi, which has been dismissed by order dated 03.06.2016. Both the aforesaid orders dated 28.5.2016 and 03.06.2016 have not been further challenged by the applicant, and as such same have attained finality.
The applicant again on 09.06.2016 and 14.06.2016 moved applications for providing copy of first information report registered at Book Nos. 036427 and 036428, but the said applications were again rejected vide order dated 18.06.2016 by the Additional Chief Judicial Magistrate, Bhadohi observing that the same prayer was earlier made by the applicant through the applications dated 05.11.2011, 06.06.2011, 08.09.2015 and 12.05.2016, which have already been decided vide order dated 28.05.2016, therefore, moving of another application with same prayer is not liable to be accepted.
In the order dated 18.06.2016, it is also mentioned that so far as registration of first information report at Book No. 036428 is concerned, an explanation has already been tendered by the concerned police station on 07.06.2016. Case is of the year 2010, but committal of the case is being lingered on due to non cooperation of the applicant on one ground or the other. The Magistrate concerned while deciding application dated 14.06.2016 has also directed the applicant to co-operate in the proceedings of committal with further direction to the concerned clerk to get the copy of all the police papers prepared afresh fixing 02.07.2016 for providing the same to the applicant. On 02.07.2016, learned Magistrate again directed the concerned clerk to get the copy of all prosecution papers prepared fixing 23.07.2016 for supply of copies and committal of case. At that stage, the applicant moved an application dated 02.07.2016 praying therein to pass an order under section 173(8) of Cr.P.C. for further investigation in the matter by the police of police station Handia, district Allahabad. Thereafter, the applicant started sending adjournment applications seeking exemption of his personal appearance before the trial court on 23.07.2016, 09.08.2016, 12.08.2016, 24.08.2016, 02.09.2016, 03.10.2016, 14.10.2016, 20.10.2016, 28.10.2016, 24.11.2016, 03.12.2016, 09.12.2016, 13.12.2016. 03.01.2017, 11.01.2017, 19.01.2017, 31.01.2017, 15.03.2017, 24.04.2017, 18.05.2017, 03.06.2017, 17.06.2017, 26.07.2017, 26.08.2017, 11.09.2017, 28.10.2017, 22.11.2017, 23.12.2017, 11.01.2018, 24.01.2018, 15.02.2018, 15.03.2018, 19.03.2018, 20.03.2018.
On 21.03.2018, the applicant moved an application praying therein that an explanation be called for from the police station Aurai in respect of F.I.R. registered at Book No. 36428. On 24.03.2018 when the case was fixed for committal of the case, the applicant moved another application challenging the validity of cognizance taken in the matter. All the aforesaid applications dated 02.07.2016, 21.03.2018 and 24.03.2018 were decided and rejected by common order dated 24.03.2018 and further date was fixed on 27.03.2018 for committal of the case to the court of sessions.
On 27.03.2018, learned counsel for accused was present, but again application was moved on behalf of accused-applicant for exemption of his personal appearance. On the said date, copies of all the documents/police papers were ready for being supplied to the accused, but learned counsel for accused refused to receive the same and was insisting to provide copy of Chik F.I.R. registered at Book No. 036428 after getting the original copy summoned from the police station, Aurai, district Sant Ravidas Nagar.
Under the circumstances, on 27.03.2018 before committing the case to the court of sessions, a detailed order was passed before lunch hours by the Additional Chief Judicial Magistrate concerned mentioning that all the prayer and objections raised on behalf of applicant by means of several applications, as mentioned above, have already been decided. However, one more opportunity was given to the accused to receive the copy of all the documents/police papers, otherwise it shall be presumed that accused-applicant is not cooperating in the proceedings of the court. Case was posted after lunch hour for committal of case. After lunch hour, the court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur was informed that copy of some documents of the prosecution have been provided to the accused-applicant as per direction of the court, in view of provision of section 207 Cr.P.C., but he has refused to receive the other documents. Under the circumstances, the Additional Chief Judicial Magistrate, Bhadohi, Gyanpur after recording the said fact, passed separate order dated 27.03.2018 committing the case to the court of sessions.
On 10.04.2018, the applicant again moved an application under section 207 Cr.P.C. for providing copies of F.I.R. registered at Book No. 036428, X-ray Report, Pathology Report, Supplementary Report and Statement of witnesses, which has been rejected by the trial court vide impugned order dated 19.12.2019, which is the subject matter of challenge in the present application.
Since, pure legal question regarding compliance of section 207 Cr.P.C. is involved in the present case, therefore, it is not necessary to issue notice to opposite party No. 2, as the matter is pending since 2010 and till date charges have not been framed in the trial proceedings.
Assailing the impugned order dated 19.12.2019, main substratum of argument of learned counsel for the applicant is that the application dated 10.04.2018 under section 207 Cr.P.C. moved on behalf of the applicant for providing copy of F.I.R registered at Book No. 036428 and other documents of the prosecution, which are part of the case diary and police report, on which prosecution is relying, has been illegally rejected by the trial court. It is next submitted by the learned counsel for the applicant that without complying the provision of section 207 Cr.P.C., case could not be committed to the court of sessions, therefore, impugned order dated 19.12.2019 is not sustainable in the eye of law and is liable to be quashed.
Learned counsel for the applicant in support of his submission, placed reliance upon the following judgments:
1. Ramesh vs State of Maharashtra, 1995 Cr.L.J. 3424
2. State of Kerala vs Babu, 1999 (4) SCC 621
3. Prakash, Ravi Karan vs State of U.P., 2019 Supreme (All) 2405 Per contra, learned Additional Government Advocate vehemently opposed and refuted the submissions advanced on behalf of the applicant, submitted that from perusal of the order sheet of this case, which is on record as annexure-4 to the application, it is apparently clear that provision of section 207 Cr.P.C. has already been complied with. It is also submitted that from the order sheet of this case, it is clear that best efforts have been made by the court to provide the copy of all the relevant documents of the prosecution to the accused-applicant, but he accepted some documents and refused to receive remaining documents deliberately with ulterior motive just to delay the proceedings of the trial. So far as demand of copy of F.I.R. registered at Book No. 036428 is concerned, the same has no concern with this case as first information report dated 27.03.2010 of this case was registered vide Chik F.I.R. registered at Book No. 036427, on which investigation proceeded and charge sheet has been submitted. Much emphasis has been given that the prayer for providing copy of Chik F.I.R. registered at Book No. 036428 to the applicant has already been refused by the Magistrate concerned vide order dated 28.05.2016, which has attained finality as revision preferred against the same by the applicant, was also dismissed on 03.06.2016, therefore, there is no illegality in the impugned order dated 19.12.2019. Lastly, it is submitted that since, liberty has been granted to the applicant for inspection of any documents, therefore present application is liable to be dismissed.
After having heard the argument of learned counsel for the parties as mentioned above, this Court is of the view that every case turns on its own facts, therefore, before delving into the issue, it would be useful to set out sections 173 and 207 of Code of Criminal Procedure, which reads as under:
"173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offense appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f)whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376-A, 376-B, 376-C, 376-D or section 376-E of the Indian Penal Code;
(ii)The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3)Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4)Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
(5)When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the 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 that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).
(8)Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."
"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 the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court."
Aforesaid provisions are applicable to all types of cases instituted upon police reports. Compliance of provisions of section 207 Cr.P.C. is condition precedent for commitment of the case to the court of sessions. If copy of documents mentioned in section 207 Cr.P.C. are not supplied to accused either in full or in part, he cannot effectively defend himself before the trial court/sessions court. The first proviso to section 207 Cr.P.C. empowers the court to exclude from the copies to be furnished to the accused such portion as may be covered by section 173 (6) Cr.P.C. The second proviso to section 207 Cr.P.C. 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 voluminous contents thereof. The provisions of section 173 (5) Cr.P.C. 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 trial. Section 173 (5) Cr.P.C., however, is subject to the provisions of section 173 (6) Cr.P.C., 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) Cr.P.C. from the copies to be granted to the accused.
In the light of facts and issues involved in this case, it is relevant to deal with the judgments relied upon on behalf of the applicant.
In the case of Ramesh vs State of Maharashtra, reported in 1995 Cr.L.J. 3424, application of the accused for directing the prosecution to produce the dying declaration of the deceased and also for supply of statements of witnesses recorded by the police was rejected. In the said case, it was admitted fact that dying declaration of the deceased was recorded and was part of police papers, but prosecution was not relying on the same. The High Court while deciding the issue has directed the Additional Sessions Judge to get it ascertained as to whether such dying declarations are in existence or not, if they are in existence, copies thereof shall be supplied to accused. The relevant observation and finding recorded in paragraphs 15 and 16 of the said judgment, are reproduced herein below:
"15. If such a dying declaration is recorded during investigation and is kept back from the accused, Merely because it helps the accused, to deny the copy thereof to him for the purposes of defence would be highly prejudicial to him. The said dying declaration, if existing on record, would undoubtedly provide a material to the defence to effectively cross-examine regarding the nature of investigation. Even the investigating officer could be subjected to a cross-examination on the basis of such dying declaration. Apart from that, such dying declaration could be used for unearthing the truth of the prosecution story, because it might affect the evidentiary value of the other dying declarations on account of the contradictions. Under such circumstances, it will not be fair to deny the copy of the dying declaration to the accused on the spacious ground that it forms a part of the case diary. If such dying declaration is proved to be in existence, it will be the right of the accused to have the copy thereof. The trial Court was, therefore, in error in not establishing as to whether such dying declaration exists or not. It has already been pointed out that there is no denial that there are no such dying declarations. The impugned order is, therefore clearly incorrect and will have to be set aside.
16. In the result, the learned Additional Sessions Judge is directed to get it established as to whether such dying declarations are in existence or not. If they are in existence, copies thereof shall be supplied to the applicant-accused. With these observations the instant Criminal Application stands disposed of."
In the case of State of Kerala vs Babu, reported in 1999 (4) SCC 621, applications were moved on behalf of accused persons to summon case diary of another case for confronting the witness with his previous statement as found in the said case diary and to recall the said witness. The Sessions Judge, allowed the said applications, which came to be challenged before the High Court by the State as well as brother of the deceased. The said petitions came to be dismissed by the High Court by holding that there is no bar in law to summon the case diary of case even other than one, which is being tried, for the purpose of contradicting the evidence of prosecution witness. On filing appeal by special leave, the Apex Court has held that a case diary of another case, not pertaining to the trial in hand can be summoned if the court trying the case considers that production of such a case diary is necessary or desirable for the purpose of trial, under section 91 of the Code.
In the case of Prakash, Ravi Karan vs State of U.P., reported in 2019 Supreme (All) 2405, judgment and order dated 30.04.2015 passed by trial court, by which accused has been convicted, was challenged, wherein the Division Bench of this Court while deciding the case has made an observation with regard to compliance of provision of section 207 Cr.P.C. in paragraph 31 of the judgment, which is reproduced herein below:
"31. Section 238 of Cr.P.C. unequivocally provided that a solemn duty is cast on the Magistrate to satisfy himself that he has strictly complied with the provisions of Section 207 Cr.P.C. viz. furnishing the accused, free of cost, copies of documents as prayed for by him and referred to in that section itself without delay and such satisfaction has to be invariably judicial satisfaction. An omission to comply with the mandatory provision of law as enshrined in Section 207 Cr.P.C. read with Section 238 Cr.P.C is bound to cause serious prejudice to the accused and such a situation may even vitiate the criminal trial. The supply of documents and statements prepared at the investigating stage as mandated under Section 207Cr.P.C. cannot be treated a mere superfluity or empty formality. It is highly improper and irregular on the part of the Court to shirk its responsibility in this regard and put the accused at the mercy of prosecution by merely observing inter alia that it is the duty of prosecution ''to follow the rules of natural justice'. Thus, it can safely be held that accused could not be refused to supply copies of documents even at the stage of trial, if relied upon by the prosecution per statutory provisions of Section 207 Cr.P.C. and also as per the provisions of Section 238 Cr.P.C. If we go carefully through the ratio laid down in V.K. Sasikala Vs. State (2012) 9 SCC 771, we get clear idea about the solemn duty of the Court to supply copies of documents to the accused. It is the duty of the Court to supply to the accused, copies of the police report, the first information report recorded under Section 154 Cr.P.C., the statements recorded under Section 161 (3) the confessions and statements, if any, recorded under Section 164 and any other documents or relevant extract thereof, which is forwarded to the Magistrate along with police report."
In view of aforesaid discussion, it is apparent that the judgments relied upon on behalf of the accused-applicant are of no help to the applicant as applicant's demand of first information report registered at Book No. 036428, on which neither investigation was done nor same was made part of case diary/police report and prosecution does not propose to rely on the same.
Here, it is apposite to mention that even one additional or different fact may make big difference between the conclusion in two cases. Each case depends on its own facts and a close similarity between one case and another is not enough, because even a single significant detail may alter entire aspect. It is well settled that accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him as evidence during the trial.
Recently, the Apex Court in the case of P. Gopalkrishnan @ Dileep Vs. State of Kerala and another, reported in AIR 2020 SC 1, has also discussed the scope and object of Section 207 Cr.P.C. In the said case, basic facts was that two police reports were submitted on 17.04.2017 and 22.11.2017 respectively. When the appellant was supplied a copy of the second police report on 15.12.2017, all documents noted in the said report, on which the prosecution proposed to rely, were not supplied to the appellant, namely, (i) electronic record (contents of memory card); (ii) Forensic Science Laboratory (for short, ''the FSL') reports and the findings attached thereto in C.D./D.V.D.; (iii) medical reports; C.C.T.V. footages and (iv) Call data records of accused and various witnesses etc. It is noted by the concerned Magistrate that the visuals copied and documented by the forensic experts during the forensic examination of the memory card were allowed to be perused by the appellant's counsel in the presence of the regular cadre Assistant Public Prosecutor of the Court, in the Court itself. After watching the said visuals, some doubts cropped up, which propelled the appellant to file a formal application before the Judicial First Class Magistrate, Angamaly for a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the video and audio footage/clipping, in the same format as obtained in the memory card, along with the transcript of the human voices, both male and female recorded in it. The Magistrate vide order dated 7.2.2018, rejected the said application, essentially on the ground that acceding to the request of the appellant would be impinging upon the esteem, decency, chastity, dignity and reputation of the victim and also against public interest. Aggrieved by above order dated 7.2.2018, the appellant preferred petition before High Court, which came to be dismissed observing that the seized memory card was only the medium on which the alleged incident was recorded and hence that itself is the product of the crime. Further, it being a material object and not documentary evidence, is excluded from the purview of Section 207 of the 1973 Code. The matter came to Apex Court and appeal has been allowed. The relevant observations made by the Apex Court in paragraph nos. 41, 42, 43 and 44 are being reproduced herein-below:-
"41. We are conscious of the fact that Section 207 of the 1973 Code permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason. If it is an "electronic record", certainly the ground predicated in the second proviso in 42 (2018) 17 SCC 324Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. We are also conscious of the dictum in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein this Court has restated the cardinal principle that accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial.
42. Nevertheless, the Court cannot be oblivious to the nature of offence and the principle underlying the amendment to Section 327 of the 1973 Code, in particular sub Section (2) thereof and insertion of Section 228A of the 1860 Code, for securing the privacy of the victim and her identity. Thus understood, the Court is obliged to evolve a mechanism to enable the accused to reassure himself about the genuineness and credibility of the contents of the memory card/pendrive from an independent agency referred to above, so as to effectively defend himself during the trial. Thus, balancing the rights of both parties is imperative, as has been held in Asha Ranjan (supra) and 43 (1981) 2 SCC 109Mazdoor Kisan Shakti Sangathan (supra). The Court is duty bound to issue suitable directions. Even the High Court, in exercise of inherent power under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.
43. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once along with his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pendrive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 2 1of the Constitution.
44. In conclusion, we hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial."
On perusal of impugned order dated 19.01.2019, I find that the application dated 10.04.2018 under Section 207 Cr.P.C. of the accused-applicant has been rejected mainly on the ground that the case is pending since 2010. The request for providing copy of Chik F.I.R. registered at Book No. 036428 has already been refused by a detailed order dated 28.05.2016 and the same has attained finality, because Criminal Revision No. 39 of 2016 preferred by the applicant against the said order dated 28.05.2016 before the Sessions Judge, Bhadohi, has been dismissed at admission stage on 03.06.2016, which has not been further challenged. On 27.03.2018, the case has been committed to the court of sessions. In the committal order dated 27.03.2018, it is clearly mentioned that some documents of the prosecution case have been given to the accused, but the accused has refused to receive the remaining documents. It has also been observed that on account of delaying tactics adopted by the applicant, till date charge could not be framed in this case despite lapse of about ten years from the date of incident. Applicant cannot be permitted to raise similar issue again and again, which has already been rejected on 28.05.2016. However, liberty has been granted to applicant to inspect any document in the court.
Now, I proceed to decide issue No.1.
The aim and object of section 207 of Cr.P.C. is to provide copy of police report along with documents appended thereto, on which prosecution proposes to rely against the accused, is only to give a fair opportunity to the accused to defend himself otherwise accused will not be able to defend himself in true sense. The right of accused with regard to disclosure of documents is limited at the stage of supplying copies to him in view of Section 207 of Cr.P.C. At that stage, the accused cannot claim an indefeasible legal right to claim every document, on which prosecution does not propose to rely. In the present case, it is admitted fact that F.I.R. dated 27.03.2010 was registered at Book No. 036427 and investigation was done and charge-sheet was submitted pursuant to said F.I.R. It has come on record that due to inadvertent mistake, on the basis of F.I.R. registered at Book No. 036427, another F.I.R. was registered at Book No. 036428, which has not been given effect to. The police of concerned police station has also submitted explanation in this regard on 07.06.2016. The F.I.R. registered at Book No. 036428 is neither part of case diary nor part of police report. The prosecution also does not propose to rely on the same, therefore, in the opinion of the Court no prejudice is being caused to the accused-applicant at this stage. The case, which is pending since 2010 without framing charge, ought not to be lingered on by raising aforesaid issue at the stage of compliance of Section 207 of Cr.P.C. It is also relevant to mention that section 91 of Cr.P.C. empowers the Court to summon production of any document or other things, which the Court considers it necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under the provisions of Code of Criminal Procedure. In a trial, before a court of sessions, the accused has also legal right under section 233(3) of Cr.P.C. to apply for the issue of any process for compelling the attendance of any witness or the production of any document or thing. Similarly, in a trial of warrant cases by Magistrate legal right has been given to accused under section 243(2) of Cr.P.C. to apply to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross examination, or the production of any document or other thing, for which the Court has to pass reasoned order.
The provisions of sections 91, 233 & 243 Cr.P.C. are reproduced herein below:-
"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."
"233. Entering upon defence.-
(1)Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2)If the accused puts in any written statement, the Judge shall file it with the record.
(3)If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
"243. Evidence for defence.-
(1)The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross- examination, or the production of any document or other thing, the Magistrate shall issue such. process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court."
The Apex Court in the case of P. Gopalkrishnan @ Dileep (supra) has also held that accused is entitled to have copies of statements and documents accompanying police report, which prosecution may use against him during the trial.
In view of above, this Court is of the view that at the stage of compliance of provisions of Section 207 Cr.P.C. accused is not entitled to get copy of such document, which is neither part of case diary nor police report and on which prosecution does not propose to rely against the accused. Accordingly, first issue is decided against the accused-applicant. As such, applicant is not entitled to get copy of F.I.R., which was inadvertently registered at Book No. 036428 on the basis of main F.I.R. registered at Book No. 036427.
Now I proceed to decide issue no.2.
It is well settled that no person shall be deprived of his life and liberty except by procedure established by law is constitutionally guaranteed to every one. Only after following a fair, reasonable and equitable procedure, liberty of a person can be curtailed in accordance with law. Right of accused to defend himself as against the accusations made against him is also a constitutional right. No one shall be condemned unheard. Before condemning a person a reasonable opportunity must be given to him. Without furnishing and disclosing copies of the incriminating materials asking the accused to defend himself will be an empty formality. In the present case, the trial court, in the committal order dated 27.03.2018, has mentioned that some documents of the prosecution have been given to the accused, but the accused himself refused to receive remaining documents. From the order-sheet of the case, it is not clear that which documents of the case have been given to accused-applicant and which documents have been refused by the applicant to receive. As such, at least it appears that full compliance of provisions of section 207 Cr.P.C. has not been made. Here, it would be useful to mention that under Section 207 Cr.P.C. the expression "Magistrate" has been used instead of expression "Court", but the provisions of section 207 Cr.P.C. will have to be given a liberal and relevant meaning so as to achieve its object, because under various special enactment requirement of commitment of a case to court of Sessions by the Magistrate as mandated by the Court has been dispensed with and the Special Courts constituted under the 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. There is no limitation or prohibition that after 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 up to the commitment of the case to the Court of Sessions. If copies of documents as provided under Section 207 Cr.P.C., which ought to have been furnished to the accused were not furnished to him by the committal court or the trial court before framing of the charge, the accused cannot defend himself effectively. Therefore, those documents can be supplied to him even after commitment of the case to the court of sessions in order to ensure principles of natural justice and fair trial.
In view of above discussion, the second issue is decided in favour of accused-applicant.
Order sheet reveals that cognizance in this case was taken on 20.06.2010 and on 02.07.2016 the Magistrate concerned directed the concerned clerk to get the copies of all prosecution documents prepared fixing 23.07.2016 for supply of those copies to the accused and committal of case, but from that day till 20.03.2018 applicant started sending adjournment application seeking exemption of his personal appearance on 34 dates and thereafter the accused-applicant adopting different modus operandi by hook or by crook delayed the trial proceedings. The valuable time of the court below has been wasted only in deciding applications under Section 207 Cr.P.C. moved by the applicant on one ground or others.
In view of above, impugned order dated 19.12.2019 is quashed only to the extent, whereby prayer of the accused-applicant for providing documents accompanied police report under Section 173 Cr.P.C. has been refused. So far as applicant's request for demand of copy of F.I.R., which was inadvertently registered at Book No 036428 as mentioned above is concerned, the same is hereby rejected.
As a fallout and consequence of aforesaid discussion, this application under section 482 Cr.P.C. is partly allowed with a direction to the trial court to provide copy of all the documents accompanied police report to the accused applicant, on which prosecution proposes to rely against the applicant within two weeks from the date of production of certified copy of this order before it. It is made clear that in case accused-applicant or his counsel refuses to receive the same, the trial court after recording the said facts in the order sheet shall send above mentioned documents to the address of the accused-applicant by registered post within a week thereafter, and will proceed with the trial, in accordance with law, making all endeavour to conclude the trial, expeditiously, without granting any unnecessary adjournments to either of the parties, preferably within a period of one year, keeping in mind that this case is pending since 2010. Applicant is also directed to co-operate with the trial proceeding.
Office is directed to communicate this order to the concerned court below.
Order Date :- 07.02.2020 Sazia