Calcutta High Court (Appellete Side)
In Re : Smt. Papiya Das vs The on 26 August, 2021
Author: Kausik Chanda
Bench: Kausik Chanda
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26.08.2021
Ct No. 35
D/L 86
ab
C.R.R. 1546 of 2021
(Via Video Conference)
Re: An application under Section 401 read with Section 482 of the
Code of Criminal Procedure, 1973.
In re : Smt. Papiya Das,
... Petitioner
Mr. Narayan Chandra Ghosh,
Mr. Falguni Bandopadhyay,
... for the petitioner
Mr. Ayan Bhattacharjee,
Mr. Ashis Kumr Mukherjee,
Mr. S. Prasad
... for the opposite party no. 2
The petitioner is the de-facto complainant/victim in S.T.
Case No. 51 of 2018, pending before the learned Additional
Sessions Judge, 3rd Court at Alipore under Sections
376/417/506 of the Indian Penal Code, 1860.
While the evidence before the learned Sessions Judge was
going on, the de-facto complainant/victim/petitioner filed an
application before the learned Sessions Judge to allow her to
submit some documents, including some photographs and hard
copies of some WhatsApp messages.
In the said application, she alleged that during
investigation, she provided the investigating officer with some
photographs and WhatsApp messages, but upon receipt of the
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charge sheet, she found that those documents were not relied
upon by the prosecution. She prayed in the said application that
she should be permitted to produce the said documents.
The prayer of the petitioner was opposed by the accused
and the Public Prosecutor as well.
By an order dated March 4, 2021, the learned Sessions
Judge dismissed the application. The learned Judge observed that
if the said application filed by the de-facto complainant is allowed,
the same will amount to permit the petitioner to adduce
additional evidence, and since the case is at the evidence stage,
the filing of such additional evidence is not permissible within the
scheme of the Code of Criminal Procedure, 1973 ("the Code" for
short).
The learned advocate for the petitioner submits that it was
the duty of the investigating officer to rely upon those documents
at the time of filing of the charge sheet since the petitioner during
course of investigation made over those documents to the
investigating officer. He further submits that the learned Sessions
Judge should have allowed the said application filed by the de-
facto complainant, inasmuch as in the absence of such
documents, a fair trial cannot be conducted.
It appears that the petitioner did not raise any objection
before the learned Magistrate when the charge sheet was filed in
terms of Section 173 of the Code, neither she raised any objection
before the learned Sessions Judge before framing of the charge
with regard to the investigation or submission of charge sheet.
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In the aforesaid factual backdrop, the following questions
arise for consideration:
a) Whether at the time of trial, can any document,
which did not form the part of the charge sheet filed
by the investigating officer, be adduced as evidence.
b) Whether a de-facto complainant/victim can
circumvent the Public Prosecutor at the time of trial
to adduce any document as evidence which has not
been relied upon by the prosecution.
In my opinion the learned Sessions Judge, in passing the
order impugned lost sight of Section 231(1) of the Code, which
provides as follows:-
"231. Evidence for prosecution.--(1) On the
date so fixed, the Judge shall proceed to take
all such evidence as may be produced in
support of the prosecution."
The expression "all such evidence" employed in the aforesaid
Section is wide enough to allow the learned Sessions Judge to
receive any document as evidence for the prosecution in the
course of a trial, notwithstanding the fact that in the charge
sheet, the investigating agency did not rely upon such document.
The identical issue as to whether the documents which are
not the part of the charge sheet could be received in evidence for
prosecution after the commencement of trial, cropped up in a
case reported at 2018 Cri LJ 3925 (B L Udaykumar v. The
State of Karnataka) and the Court held as follows:-
"13. Thus it is clear that sub-Section (3) of
Section 242 casts a mandatory duty on the
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Magistrate to take all such evidence as may be
produced in support of the prosecution. The
word "produced" in sub-Section (3) also cannot
be given a restrictive meaning to hold that only
the materials collected during investigation
could be permitted to be produced in evidence.
Such a construction would defeat the very
purpose of trial. If the main object of criminal
trial is to discover truth, necessarily all and
every piece of evidence while could help the
Court to arrive at a just decision should be
allowed to come on record. Therefore, it is
immaterial, whether the "evidence" sought to
be produced during trial was either collected in
the course of investigation or subsequent
thereto. Section 91 Cr. P.C. no doubt empowers
the Court or the officer in charge of the Police
Station to ensure the production of any
'document or other thing' 'necessary or
desirable' for the purpose of any investigation,
enquiry or other proceedings by issuing
summons or written order to the person in
whose possession or power such document or
thing is; but Section 242(3) Cr. P.C. requires
the Court to take all such evidence which the
prosecution desires to produce including the
documents which are not mentioned in sub-
Section (5) of Section 173 Cr. P.C. subject of
course furnishing to the accused a copy thereof
and providing him a reasonable opportunity to
meet the same. The only safeguard or
restriction that could be thought of in view of
the provisions of the Evidence Act is that such
evidence must relate to the matters of fact in
enquiry. In other words, as long as the
proposed evidence, either oral or documentary,
is relevant and in support of the prosecution
case, the Magistrate cannot refuse to receive it.
14. In this context, it is also relevant to note
that a duty is cast on the Public Prosecutor
conducting the trial to produce all evidence
relevant to the determination of the guilt or
innocence of the accused. Therefore, it goes
without saying that even the Public Prosecutor
conducting the trial owes a duty to produce
before the Court all evidence in support of the
prosecution. The Public Prosecutor therefore
cannot withhold any relevant piece of evidence
which he finds it necessary for fair trial of the
case. That being the position of law and the
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mandate contained in Section 242(3) of Cr.
P.C., I do not have any hesitation to hold that
the Criminal Court conducting the trial is
bound to receive all the evidence produced by
the prosecution irrespective of the fact whether
the said evidence or documents were part of
the charge-sheet placed before the Court or
not. "
I am in respectful agreement with the view expressed in the
said judgment. The language of Section 231 (2) of the Code is in
pari materia with the Section 242(3) and the aforesaid
observations equally apply to a Court of Session.
It may also be noticed that the prosecution is not precluded
from tendering a person as a witness who had not been examined
by the police during the investigation. The said view gets support
from the judgment reported at AIR 1968 AP 236 (J.B. Roy v.
The State of A.P.).
Therefore, the learned Sessions Judge was not justified in
rejecting the application filed by the de-facto complainant/victim
on the ground that the same would amount to allow her to
adduce additional evidence going beyond the scope of the Code.
To answer the second question, it is necessary to take note
of some of the provisions of the Code relating to the conduct of a
trial by the Public Prosecutor.
Section 225 of the Code provides that in every trial before a
Court of Session, the prosecution shall be conducted by a Public
Prosecutor.
The proviso to Section 24(8) of the Code allows the victim to
engage an advocate of his choice to assist the prosecution.
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Section 301 (2) provides that the Public Prosecutor or
Assistant Public Prosecutor in charge of the case shall conduct
the prosecution, and the advocate of the victim shall act under
the directions of the Public Prosecutor and may, with the
permission of the Court, submit written arguments after the
evidence is closed in the case.
The aforesaid provisions make it clear that a victim does
not have any independent right to participate in the trial. The
victim's counsel should act under the Public Prosecutor to assist
him in the trial.
Mr. Ayan Bhattacharjee, learned advocate for the opposite
party no 2, has rightly pointed out before this Court that the
interplay of the aforesaid Sections has been elucidated by the
Supreme Court in the case reported at (2020) 2 SCC 474 (Rekha
Murarka Vs. State of West Bengal). The relevant paragraphs of
the said judgment are quoted below:-
"11.2. In some instances, such a wide array of
functions may also have adverse consequences
on the fairness of a trial. For instance, there
may be a case where the Public Prosecutor may
make a strategic call to examine some
witnesses and leave out others. If the victim's
counsel insists upon examining any of the left-
out witnesses, it is possible that the evidence
so brought forth may weaken the prosecution
case. If given a free hand, in some instances,
the trial may even end up becoming a vindictive
battle between the victim's counsel and the
accused, which may further impact the
safeguards put in place for the accused in
criminal trials. These lapses may be aggravated
by a lack of advocacy experience on the part of
the victim's counsel. In contrast, such dangers
would not arise in the case of a Public
Prosecutor, who is required to have
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considerable experience in the practice of law,
and act as an independent officer of the court.
Thus, it is important to appreciate why the role
of a victim's counsel is made subject to the
instructions of the Public Prosecutor, who
occupies a prime position by virtue of the
increased responsibilities shouldered by him
with respect to the conduct of a criminal trial.
11.3. At the same time, the realities of criminal
prosecutions, as they are conducted today,
cannot be ignored. There is no denying that
Public Prosecutors are often overworked. In
certain places, there may be a single Public
Prosecutor conducting trials in over two-three
courts. Thus, the possibility of them missing
out on certain aspects of the case cannot be
ignored or discounted. A victim-centric
approach that allows for greater participation of
the victim in the conduct of the trial can go a
long way in plugging such gaps. To this extent,
we agree with the submission made by the
learned Senior Counsel for the appellant that
the introduction of the proviso to Section 24(8)
acts as a safety valve, inasmuch as the victim's
counsel can make up for any oversights or
deficiencies in the prosecution case. Further, to
ensure that the right of appeal accorded to a
victim under the proviso to Section 372 CrPC is
not rendered meaningless due to the errors of
the Public Prosecutor at the trial stage itself,
we find that some significant role should be
given to the victim's counsel while assisting the
prosecution. However, while doing so, the
balance inherent in the scheme of CrPC should
not be tampered with, and the prime role
accorded to the Public Prosecutor should not
be diluted.
............
11.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim's counsel, the victim's counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim's counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his 8 suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 CrPC or Section 165 of the Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Uma Saha v. State of Tripura that the victim's counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the court or the prosecution, but not putting them by himself."
Therefore, it will be open for the petitioner to approach the concerned Public Prosecutor for adducing the said photographs and hard copies of the WhatsApp images as evidence in the trial.
In the event, the learned Public Prosecutor declines to take steps to adduce those documents as evidence, the petitioner will be at liberty to bring it to the notice of the Court. If the learned Judge finds merit in the prayer, he shall take steps in aid of Section 311 of the Code or Section 165 of the Indian Evidence Act, 1872.
With the aforesaid observations, the revisional application being CRR No. 1546 of 2021 is allowed by setting aside the order dated March 4, 2021, passed by the learned Sessions Judge in the Court below.
Urgent photostat certified copy of this order, if applied for, be given to the petitioner upon compliance with all necessary formalities.
(Kausik Chanda, J.)