Chattisgarh High Court
Murari Prasad Awasthi vs State Of Chhattisgarh on 1 August, 2011
HIGH COURT OF CHATTISGARH BILASPUR
CrMP No 444 OF 2011 AND CrMP No 445 OF 2011
Murari Prasad Awasthi
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Shri Amrito Das counsel for the respective applicant
^ Shri Rakesh Jha Deputy Government Advocate for the State
CORAM: Honble Shri Manindra Mohan Shrivastava J
Dated: 01/08/2011
: Judgement
ORAL ORDER
Application under Section 482 of the Code of Criminal Procedure
Passed on 01082011
The aforesaid two petitions (i.e.Cr.M.P.No.444 & 445 of
2011) are being disposed off by a common order as common
question of law and fact arises for consideration. The
applicant is facing trial for commission of offence under
Section 406 of the I.P.C. under Crime No.08/2008 pending in
the Court of Judicial Magistrate First Class, Rajnandgaon
and also for alleged commission of offence under Section 379
of the I.P.C. under Crime No.280/2007 pending in the same
Court.
2. The applicant was arrested by the Dongargaon Police on
03-04-2008 on the allegation of commission of offence under
Section 379, 392, 406, 394 and 397 of the I.P.C. and four
different cases were registered leading to filing of four
charge sheet. In one, out of four cases, after filing of the
charge sheet, the case was committed to the Court of
Sessions Judge, which was registered as Sessions Trial
No.117/2008 alleging commission of offence under Section
394, 397 of the I.P.C., wherein the applicant has been
acquitted vide judgment dated 08-12-2009 passed by the 1st
Additional Sessions Judge, Rajnandgaon. In both the above
cases, charge sheet was filed on 23-06-2008. However, right
from the beginning, the applicant has been agitating
grievance by making application before the Court for
direction to the Prosecution to supply legible copy of
documents along with charge sheet. On 13-08-2008, the
learned Magistrate directed the prosecution to supply
legible copy of documents to the applicant. The applicant's
case was thereafter listed on 28-08-2008 for ensuring
compliance and committal. On that day, the applicant moved
an application in the two cases for supply of legible copy
of certain documents. In his application (Annexure A-2 in
Cr.M.P.No.444 of 2011), the applicant specifically stated
regarding the documents which were not legible and prayed
for supply of legible and readable copies of those documents
supplied along with the charge sheet. In Cr.M.P.No.445 of
2011 also, the applicant also moved an application (Annexure
A-2) dated 28-08-2008 for supply of legible copies of the
documents referring to the pages of the charge sheet as also
requesting for supply of legible copies of some other
documents. On 28-08-2008, an order was passed directing the
prosecution to supply clear and legible true copies of those
documents, which are not legible. According to the
applicant, even on the next date, documents were not
supplied. Both the cases were thereafter listed on 14-10-
2008. On that date, some of the documents were supplied to
the applicant and for supply of legible copies of the rest
of the documents, time was sought by the prosecution and
case was again listed on 24-10-2010. On that date, the
applicant again agitated that even after the order of the
Court, legible copies of all those documents, which are
stated to be not legible earlier, are not being supplied,
and therefore, proceedings for non-compliance of Court order
dated 13-08-2008 be initiated. He also prayed that the
legible copies of the requisite documents be supplied. On 24-
10-2010, the Court passed an order after recording that
complete legible copies of documents have been supplied. It
is the case of the applicant that on 07-11-2008, the
applicant again preferred an application under Section 207
of the Cr.P.C. stating that the prosecution has misled the
Court as legible copies of the documents have not been
supplied. Thereafter, the case was listed on several dates.
When the remaining legible copies of the documents were not
supplied, another application was moved by the applicant on
20-03-2009. On 09-12-2010, the Court passed an order
(Annexure A-6) directing that the applicant should be
supplied all the legible copies of the documents in
compliance of Court order dated 13-08-2008, except those
legible copies of documents, which have been supplied to the
applicant on 14-10-2008. It is the case of the applicant
that thereafter, instead of providing legible copies of the
documents as demanded by the applicant, the prosecution
supplied to the applicant copies of those documents as filed
along with the charge sheet, which were wholly illegible. It
was not the case of the applicant that the documents have
not been supplied, the grievance of the applicant was that
the legible copies of the documents have not been supplied,
and further, mere supply of photocopies of the documents
would not meet the requirement of law as also the compliance
of the Court order. However, vide order dated 28-12-2010,
the learned Magistrate rejected the applicant's application
recording that the documents whose legible copy has been
demanded has already been supplied to the applicant, and
further that, in view of the case of the applicant that the
original documents filed along with the charge sheet are not
legible and prays for supply of documents after making those
copies legible, prayer is liable to be rejected.
3. Aggrieved by the said order of rejection, the applicant
preferred revision, which has also been dismissed.
4. Learned counsel for the applicant by placing reliance
upon the decision of the Supreme Court in the case of
Sidhartha Vashisht alias Manu Sharma Versus State (NCT of
Delhi), (2010) 6 SCC 1, submitted that the prosecution is
under an obligation to supply to the applicant, legible and
accurate copies of the documents, which are sought to be
relied upon by the prosecution to prove the charges against
the applicant, as contained in the charge sheet. Learned
counsel for the applicant submits that each and every
document filed along with the charge sheet, are not only
required to be supplied, but legible copies of those
documents, which includes FIR, statement under Section 161
of the Cr.P.C., memorandum etc. are also required to be
supplied. Learned counsel submits that in spite of repeated
prayer made before the Court below, legible copies of all
the documents, which were enlisted in his application dated
28-08-2008, in both the cases, have not been supplied.
5. On the other hand, learned State counsel submitted that
a perusal of order dated 24-10-2008 (Annexure A-5) shows
that the Court was satisfied that legible copies of all the
documents were supplied to the applicant. He further submits
that in Court order dated 28-12-2010 also, it has been
recorded that the documents as filed along with the charge
sheet have been supplied to the applicant and it has been
correctly held that the applicant's prayer for supply of
legible copies of those documents, which are not legible in
its original, as filed along with the charge sheet, cannot
be accepted and supply of copy of the documents in the
charge sheet as filed in the Court is sufficient compliance
of the requirement of law under Section 173 and 207 of the
Cr.P.C.
6. From the applications dated 28-08-2008 filed by the
applicant in two different cases, it is revealed that the
applicant had demanded legible copies of certain documents,
reference of which, has been clearly given in the
application itself. The learned Court below also passed an
order directing the prosecution to supply legible copies of
the documents on 28-08-2008. On 24-10-2008, while
considering the applicant's prayer for supply of legible
copies of the documents, it has been recorded that on 14-10-
2008, the prosecution had supplied legible documents, of
which, acknowledgement was also given by the applicant that
all the documents have been supplied to him. Later on, the
applicant again disputed by moving an application that
legible copies of all the documents, as demanded by the
applicant, have not been supplied. The submission was
appreciated by the Court and again vide order dated 09-12-
2010 (Annexure A-6), the Court below directed that the
legible copies of all those documents, except those, whose
legible copies of the documents have been supplied to the
applicant on 14-10-2008 in compliance of Court
order dated 13-08-2008, be supplied. Order dated 28-12-2010
shows that the grievance agitated before the Court was that
in purported compliance of order dated 09-12-2010, the
applicant has only been supplied photocopies of those
documents, but the same are not legible. On the said
statement, the learned Court below has recorded that as the
original documents as filed along with the charge sheet
itself were not legible, the applicant's prayer for supply
of those documents by making them legible, cannot be
allowed. In the opinion of this Court, order passed by the
Court below is illegal and cannot be sustained. It is also
found that when the matter was taken up in revision, the
Revisional Court has recorded a vague finding. While
dismissing the Revision, it has been vaguely recorded that
typed copies of some of the documents, which are available
on record and after perusal of the documents, it cannot be
said that the documents are wholly illegible.
7. From the aforesaid orders passed by the Court below and
the Revisional Court, it is found that the Court below have
not considered the applicant's application in its proper
perspective. The applications, which have been filed by the
applicant in two cases, referred to specific documents
either by mentioning the nature of the documents or by
mentioning the pages of the charge sheet. Therefore, the
learned Magistrate was under an obligation to examine the
grievance of the applicant with specific reference to those
documents as to whether legible copies have been supplied or
not. An accused cannot be subjected to criminal trial, which
may end up in his conviction/incarceration, without even
knowing the contents of the documents, which are sought to
be relied upon by the prosecution. Unless the accused knows
the content of the documents, which are sought to be relied
upon by the prosecution, having been filed along with the
charge sheet, he may not effectively exercise his right of
defence by impeaching the credibility of the material placed
before the Court by the prosecution. It is also noted that
initially the Court passed an order directing the
prosecution to supply legible copies of the documents
demanded by the petitioner, later on, on 24-10-2008, it was
recorded that legible copies have been supplied and
acknowledgment obtained. If that be so, there was no
occasion to pass another order on 09-12-2010 to the effect
that legible copies of the documents are required to be
supplied, except those legible copies, which have already
been supplied on 14-10-2008. Therefore, it is clear that on
09-12-2010, the Court was satisfied that legible copies of
all the documents as demanded by the applicant have not been
supplied. Thereafter, vide order dated 28-12-2010, the
applicant's prayer has been rejected on the ground that the
applicants is claiming legible copies of those documents,
which in original itself and filed along with the charge
sheet, are not legible, and therefore, legible copies cannot
be supplied.
8. In the case of Sidhartha Vashisht alias Manu Sharma
(supra), the Supreme Court has examined the scope of
provision contained in Section 207 of the Cr.P.C., it has
been held:-
196. "Thus the position under common law is clear
i.e. subject to exceptions like sensitive
information and public interest immunity, the
prosecution should disclose any material which
might be exculpatory to the defence."
9. It has also been held that concept of fair trial is
committed to preserve all fundamental right of accused
guaranteed under the Constitution of India. The Supreme
Court proceeded to hold:-
216. --------------------xx--------------------
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"The right of the accused to receive the documents/statements submitted before the court is absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with law."
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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 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."
10. Therefore, as far as documents, which are appended to the charge sheet, which the prosecution intends to use against the petitioner in order to prove guilt of the petitioner, are concerned, the petitioner is not only entitled to copies of those documents, but also entitled for legible copies of those documents. Supplying of documents, which are not readable and legible, would serve no purpose and it is merely an empty formality. The prosecution cannot be allowed to use the document, which the accused or his counsel cannot read or understand as to what contents of the documents are. As long as those documents are used and relied upon by the prosecution, supply of legible copies of documents is the requirement of fair trial, which cannot be denied, to the accused.
11. In the result, it is held that the petitioner is entitled to legible copies of all the documents, which were demanded by the petitioner; vide his application dated 28-08- 2008 in both the cases. The petitioner has been supplied some of the legible copies of documents on 14-10-2008 and remaining legible copies of the documents have not been supplied. The Magistrate or the Sessions Judge, as the case may be, shall further examine the prayer of the petitioner for supply of legible copies of the documents, which have not been supplied so far, and appropriate and specific directions shall be issued to the prosecution to supply the documents to the petitioner.
12. With the aforesaid direction, the petition is finally disposed off.
JUDGE