Jayeshbhai Khemchandbhai Patel vs State Of Gujarat on 17 March, 2017

[Cites 116, Cited by 0]

Gujarat High Court

Jayeshbhai Khemchandbhai Patel vs State Of Gujarat on 17 March, 2017

HC-NIC Page 1 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 1 By this application under Article 227 of the Constitution of India, the applicant - original accused has prayed for the following reliefs:

"10 A. Be pleased to admit this petition.

B. Be pleased to pass appropriate order and/or direction quashing and setting aside order passed below Exh. 12 dated 312017 Ex. 16 on 231 2017 by exercising powers under Art. 227 of the Constitution declaring same as arbitrary, unjust and illegal being contrary to the provision of Sec. 173 and 207 of the Code of Criminal Procedure, 1973 and direct the State Authority/prosecution to produce before the Sessions Court at Vadodara in Criminal Case No.148/2016 all other documents which prosecution intends to rely upon during the trial more particularly related to FSK, DNA and Doctors' report and which are not produced with the Charge Sheet read with list dated 2122016 and be pleased to direct the Sessions Court at Vadodara to prepare copy of such documents and furnish same to the petitioner / accused as early as possible.

C. Pending admissible, hearing and final disposal of this petition, Your Lordships may be pleased to pass appropriate order and/order direction staying further proceedings of Criminal Case No.148 of 2016 pending in the Court of learned District and Sessions Judge at Vadodara against the petitioner.

D. Be pleased to pass appropriate order/or direction as may be deemed fit and proper in the interest of justice.

E. Be pleased to pass appropriate order dispensing with the affidavit on this petition as the petitioner is in judicial custody."

2 The facts giving rise to this application may be summarised as under:

2.1 On 18th June 2016, a First Information Report bearing C.R. No.I 70 of 2016 came to be registered at the Vaghodia Police Station, District:

Vadodara against the applicant herein and other persons for the office punishable under Sections 376, 323, 506 read with 114 of the Indian Penal Code.

2.2 The allegations against the applicant herein is that he is managing Page 2 of 106 HC-NIC Page 2 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT the entire affairs of the 'Parul University' situated at Vaghodia, District:

Vadodara, and he is alleged to have committed rape on a 20 years old student studying in the said University. The investigation reveals that the semen stains were found on the clothes of the victim and those matched with the blood group of the applicant herein.

2.3 The Investigating Agency completed the investigation and filed chargesheet in the Court of the learned Judicial Magistrate First Class, Vadodara, who, in turn, committed the case to the Court of Sessions culminating as the Sessions Case No.148 of 2016. The sessions case, as on date, is pending in the Court of the learned Sessions Judge, Vadodara.

2.4 On 14th December 2016, the applicant herein preferred an application Exhibit: 12 and demanded for supply of certain documents.

The application Exhibit: 12 reads as under:

"1. The applicant is accused No.1 in the present case.

2. The applicant has received copy of the chargesheet containing the documents as per the list annexed hereto.

3. The applicant takes it that, the prosecution is not relying on any other documents more particularly documents consisting following things.

(i) How, when and where the samples for DNA test were received, alongwith appropriate references.

(ii) Identity of sources of samples.

(iii) Consent of the individuals providing the sample indicating the purpose for which the sample is collected.

(iv) Description of the parcels including the condition of the seal.

                           (v)     Detailed description of the samples/exhibits including visual  


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                           appearance and size. 
                           (vi)    Tests done to identity nature of the samples. 
                           (vii)   Relevant details of the tests.

(viii) Results including all data, photographs and statistical calculations of the tests performed.

(ix) Interpretation of DNA analysis and Serology tests.

(x) Documents of validation studies of DNA testing.

(xi) Laboratory Analyst Record Book for all the Serology & DNA Analysis Tests performed.

4. The above mentioned documents will be furnished before considering that, the charges can be framed or not otherwise it will seriously prejudice the defense.

5. If the prosecution is relying upon the above documents, the prosecution will be directed to furnish it to the applicant before the charges are framed.

6. Therefore, it is prayed that;

a) The prosecution be directed to supply copy of above document/s.

b) Pass any other and further order which this Hon'ble Court may deem just and proper."

2.5 The learned 8th Additional Sessions Judge, Vadodara, vide order dated 3rd January 2017 rejected the application Exhibit: 12 substantially on the ground that the documents demanded by the accused were of such a nature that ordinarily, they are being supplied to the accused in the course of the trial and not at this stage. To put it in other words, having regard to the nature of the documents, they would be received by the Investigating Officer after the trial commenced, and therefore, at this stage, such documents cannot be demanded by the accused as a matter of right.




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2.6 Thereafter, on 17th January 2017, one another application was filed Exhibit: 16 by the applicant herein once again, praying for certain documents. The application Exhibit: 16 reads as under:

"1. The accused No.1 in the present case is in custody.

2. The case is kept today for framing of charges.

3. This Hon'ble Court by its order dated passed on Exh.12 rejected the application filed by the applicant for supply of certain documents.

4. While passing the aforesaid order this Hon'ble Court chiefly observed that,

i) The documents sought are not necessary to be served before framing of charges.

ii) The documents mentioned in application may be produced at the time of cross examination of the FSL officer.

iii) The applicant is delaying the framing of charges by filing applications.

5. The applicant says that, he has no intention to delay the trial at any stage but he expects that, this Hon'ble Court protect his legal rights.

6. The applicant says that, the science of DNA is comparatively new and very complicated. As per the chargesheet, the DNA of the applicant was found by FSL on cloth of the Surviver. In the light of this fact, the following documents are very much necessary to prepare the defense in the present case.

(i) Documents / Notes / Register showing how, when and where the samples for DNA test were received, alongwith appropriate references.

                          (ii)    Documents / Notes / Register showing Identity of sources of  



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                    samples. 
                    (iii)     Document/s   showing   consent   of   the   applicant's   providing

the sample indicating the purpose for which the sample is collected.

(iv) Documents / Notes / Register showing description of the parcels including the condition of the seal.

(v) Documents / Notes / Register showing detailed description of the samples / exhibits including visual appearance and size.

(vi) Documents / Notes / Register showing the Tests done to identify nature of the samples. N

(vii) Documents / Notes / Register showing relevant details of the tests.

(viii) Documents / Notes / Register showing results including all data, photographs and statistical calculations of the tests performed.

(ix) Interpretation of DNA analysis and Serology tests.

(x) Documents / Notes / Register showing validation studies of DNA testing.

(xi) Laboratory Analysist Record Book for all the Serology & DNA Analysis Tests performed.

7. In reply to Exh. 12, the prosecution stated that, the documents sought by the applicant will be produced at the time of examination of witness. The prosecution also submitted a letter dated 23.12.2016 whereby the FSL, Surat was informed to do the needful.

8. The above mentioned documents are required by him to prepare his defence in respect of the FSL reports prior to examination of witnesses and if the documents will not be supplied to him his defense will be affected.

9. It is clear from the reply of the prosecution on Exh. 12, that, the prosecution is relying upon the above documents. In this circumstances, it is in the interest of justice to direct the prosecution to furnish the above mentioned documents to the applicant at the earliest date under Section Page 6 of 106 HC-NIC Page 6 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 173(5) of Cr.P.C. which read thus, "173(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;"

In view of this mandatory provision, the prosecution is duty bound to forward all documents on which they suppose to rely upon.

10. In light of what is stated above, the prosecution does want to rely upon on documents referred to in para 6. Not only that but they may be wanting to rely upon similar type of documents prepared by the FSL. In the circumstances, the prosecution ought to produce all the said documents under Section 173 of Cr.P.C.

11. It is further be noted above, under Section 207 of Cr.P.C. duty is cast upon to supply these copies which are described and covered under Sec. 173 of Cr.P.C.

This procedure required to be completed before we reach stage of framing of charge as contemplated under Sec. 228 of Cr.P.C.

12 This Hon'ble Court has observed that, the defense is wasting time by not allowing this Hon'ble Court for framing of charge on the ground of non supply of these documents. In order to prove his bonafide, the accused is forgoing his right to get this documents before framing of charge. However, this Hon'ble Court may direct the prosecution to clarify whether they would be supplying "ALL THE DOCUMENTS ON WHICH THEY INTENT TO RELY UPON BEFORE ANY WITNESS IS EXAMINED."

13. Therefore, it is prayed that;

         a)      The prosecution be directed to clarify their intention to rely upon  


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above stated documents or to supply copy of above document/s at least before any evidence is lead.

b) Pass any other and further order which this Hon'ble Court may deem just and proper."

2.7 Thus, the applicant herein prayed before the Trial Court that he be provided with the documents so that he can study them and prepare his defence. The learned 8th Additional Sessions Judge, once again, vide order dated 23rd January 2017, rejected the application on the very same grounds assigned in the order passed below Exhibit: 12 referred to above.

3 Being dissatisfied with the two orders passed by the Courts below, the applicant accused has come up with this application invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

4 On 2nd February 2017, the following order was passed:

"Let notice be issued to the respondent, returnable on 10.02.2017. Ms. Pathak, the learned APP, waives service of notice for and on behalf of the respondent.

Since this Court is looking into the issue, the Trial Court shall not proceed to frame the charge for the time being.

Notify the matter on top of the board."

5 During the pendency of this application, some developments took place in the form of supply of sixty seven documents to the applicant accused. However, the applicant accused is not satisfied with just the supply of those sixty seven documents, and he, in turn, through his counsel, once again requested the learned Public Prosecutor Mr. Amin to supply few other documents, which according to him, are relevant for Page 8 of 106 HC-NIC Page 8 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT the purpose of preparing his defence and also for discharge from the prosecution. The request in writing is in the following terms:

"As discussed with you today 1722017, I confirm to have received about 67 documents from your office and acknowledge is already given by me. I am also giving herein under list of documents as mentioned at small (a) to

(j) if the prosecution is relying upon them. Kindly oblige me by supplying copy thereof before the next date of hearing 332017. The following list is given in advance without consulting defence pathologist. In case if there is any change in the list given today, you will be informed well in advance.

(i) As per panchnama dated 18/06/2016 between 12.45 and 13.10. p.m. WHC Lilaben produced clothes of Kinnari.

(a) Whether WHC Lilaben prepared any documents when she allegedly took clothes from Kinnari.

(b) Whether there is any document to show at what time WHC Lilaben collected the clothes from Kinnari and where she keep them till she produced them as per above panchnama dtd. 18.06.2016.

(ii) As per forwarding letter dtd. 24/06/2016, the said clothes alongwith blood, vagina swab, oral saliva, nail clipping and public hairs etc were forwarded to FSL.

(c) Whether there are any documents relating to these clothes and where those articles mentioned above were kept and in whose custody they remained etc?

(iii) As per FSL Report dtd. 28/07/2016, they analysis of these clothes was started on 27/06/2016 and completed on Page 9 of 106 HC-NIC Page 9 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 27/07/2016.

(d) Whether there is any document showing as to where these clothes were remained and who was custodian thereof between 24/06/2016 to 27/06/2016.

(e) Whether there is any document showing as to where these clothes were remained and who was custodian thereof between 27/06/2016 to 27/07/2016.

a. Regarding blood sample, semen collection of accused Jayeshbhai.

Semen Sample:

As per letter dated 22/06/2016, as medical officer, PHC, Waghodia address to PSI Waghodia, though Jayesh Patel could not succeed in producing semen in spite of masturbating 3 times, and hence he was sent to SSG Hospital and on 23/06/2016, he is alleged to have Medical Officer SSG Hospital, Vadodara who by certificate mentioned. "As per Urosurgen Dr. Sanjiv Shah's guidance, semen sample collected.

(d) Is there any document prepared as to by which method the said semen sample was collected.

(e) Is there any document prepared to show what was the quantity of semen which was allegedly collected.

(f) Whether while allegedly handing over semen sample any documents were prepared?

Blood Sample:

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(g) Is there any document prepared to show what was the quantity of blood which was allegedly collected.

(h) Whether while allegedly handing over blood sample any documents were prepared?

As per forwarding letter to FSL, the above samples of blood were sent to FSL on 24/06/2016 and they were tested subsequently on 01/07/2016 to 07/07/2016.

(i) Are they any documents showing in whose custody the said specimen remained between 24.06.2016 till they were tested?

(j) It appears that as per standard ladder and working procedural manual by FSL DNA analysis was carried out "As per working Procedural Manual RFSLDNAOPM and RFSLBIOOPM."

If prosecution is relying upon the said manual on the basis of which the said DNA conclusion was arrived at, kindly furnish the copies of the said manuals.

The aforesaid documents which are mentioned at (a) to (j) and other document/s on which the prosecution proposes to rely upon kindly furnish them otherwise make a statement that the prosecution is not going to rely upon."

         ●       SUBMISSIONS ON BEHALF OF THE APPLICANT: 

         6      Mr.   Ponda,   the   learned   senior   counsel   assisted   by   Mr.   Pradeep

Patel, the learned counsel appearing for the applicant vehemently submitted that the impugned orders are erroneous and contrary to the provisions of the Criminal Procedure Code. Mr. Ponda submitted that in Page 11 of 106 HC-NIC Page 11 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT the old Cr.P.C. of 1898, Section 173 was silent as regards the supply of the documents to the accused vide the unamended subsection clause (4). He pointed out that thereafter, the said section came to be re amended based on the amendment made in the old section in the year 1955.

7 Mr. Ponda submits that originally, under the unamended sub section clause(4), the copy of the report submitted to the Magistrate had to be supplied to the accused, and that too, upon his application before the commencement of the inquiry and trial. There was no compulsion to furnish him with the copies of the statements, documents, etc. There was, however, a provision in the amended Section 162 of the Cr.P.C. for furnishing the accused, on his request, with the copies of statements of witnesses recorded under Section 161 when such witnesses were called upon for prosecution at the inquiry or trial.

8 Mr. Ponda submitted that under subsection (5) of Section 173 of the Cr.P.C., the prosecution is duty bound to supply the copies of documents or the relevant extract on which the prosecution proposes to rely upon. It does not say that only those documents, which are collected by the Investigating Agency and prosecution proposes to rely upon, are to be supplied. Section 173 of the Cr.P.C. speaks of report of the police officer on completion of the investigation.

9 Mr. Ponda laid much emphasis on the language of Section 173(5) of the Cr.P.C., which reads as under:

"173(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;

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(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses."

10 Mr. Ponda submits that the accusation against his client is that of committing rape on a young girl aged 20 studying in the campus of the 'Parul University'. The prosecution seeks to rely upon one of the circumstances of recovery of semen stains on the clothes of the victim matching with the blood group of the applicant accused herein. According to Mr. Ponda, the entire case put up against his client is false and his client will be in a position to establish his innocence at this very stage if certain documents demanded are supplied to him. Mr. Ponda laid much emphasis on the fact that his client is aged 65 years. According to Mr. Ponda, his client is impotent. To put it in other words, having regard to the age and health, he is unable to produce or ejaculate any semen, and therefore, the case of the prosecution on this ground alone should fail. Mr. Ponda pointed out that his client was taken to the S.S.G. Hospital on 23rd June 2016, and was subjected to certain tests. In the course of such tests, the semen sample of his client was collected. The prosecution is trying to establish that the applicant is potent and is capable to have sexual intercourse. Mr. Ponda submits that there is a certificate issued by Dr. Sanjiv Shah in this regard, but how the test was carried out, how much quantity of semen was collected and whether any documents in this regard were prepared or not, and if prepared, then the accused is entitled to have a copy of such documents at this very stage. According to the learned senior counsel, if the prosecution makes a statement that they are not going to rely upon such documents in the course of the trial, then he would not insist for the supply of the copies, but if the prosecution is going to rely upon, then his client is entitled to have a look at those documents at this very stage i.e. before the framing of the charge by the Trial Court. Mr. Ponda submitted that it would not Page 13 of 106 HC-NIC Page 13 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT lie in the mouth of the prosecution to say that all the documents relevant for the purpose of establishing the guilt of the accused, if not a part of the chargesheet, can be produced at any stage during the course of the trial. No prejudice would be caused to the prosecution if all the documents are supplied to the accused at this stage.

11 According to Mr. Ponda, the learned senior counsel, there is no provision in the Cr.P.C., which entitles or permits the prosecution to produce any additional document, not a part of the chargesheet in the course of the trial, except in two contingencies: (1) a supplementary chargesheet is filed pursuant to the further investigation under Section 173(8) of the Cr.P.C., and (2) the documents in question were not available at the relevant point of time and were not within the knowledge of the prosecution.

12 Mr. Ponda submits that whatever documents have been demanded are very much in possession of the prosecution and once being in possession, the copies of those documents should be provided or supplied to the accused so that the accused would come to know what exactly is the case against him and what is the evidence sought to be relied upon by the prosecution to prove the case.

13 In support of his submissions, Mr. Ponda has placed reliance on the following decisions:

(1) Satya Narain Musadi vs. State of Bihar [AIR 1980 SC 506] (2) Pramod Sharma vs. State of U.P. [2011 Cri. L.J. 1088] (3) Himatlal Ratilal Rajyagor vs. The State of Gujarat [1971 Cri.

L.J. 165] (4) Chimanlal Bhogilal Shah vs. State of Gujarat [1973 GLR 807] Page 14 of 106 HC-NIC Page 14 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT (5) Sidhartha Vashisht @ Manu Sharma vs. State 9NCT of Delhi) [(2010) 6 SCC 1] (6) Gurbachan vs. State of Punjab [AIR 1957 SC 623] (7) V.K. Sasikala vs. State [AIR 2013 SC 613] ● SUBMISSIONS ON BEHALF OF THE STATE:

14 Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State has vehemently opposed this application and has termed this application as a gross abuse of the process of law. Mr. Amin would submit that no error, not to speak of any error of law could be said to have been committed by the Trial Court in rejecting the two applications Exhibit: 12 and 16 respectively filed by the applicant accused.

15 Mr. Amin submits that for the purpose of deciding the issue raised in this application, three provisions of the Cr.P.C. are important i.e. Sections 173(5), 207 and 227. Mr. Amin submits that at the end of the investigation, the Investigating Officer filed chargesheet containing all the relevant documents and statements necessary for the purpose of the Court to take cognizance. Mr. Amin made himself very clear that there need not be any debate as regards the proposition of law that if the prosecution seeks to rely upon any document, the same has to be supplied to the accused to enable him to meet with the same for the purpose of his defence. However, according to Mr. Amin, the assertion on the part of the accused that the documents in question should be supplied to him at this very point of time, is something not tenable in law and something which cannot be asserted as a matter of right. Mr. Amin submits that the demand, which has been putforward, is something in the form of a roving inquiry. Whatever documents forming the part of the chargesheet, are sufficient for the Trial Court to frame the Page 15 of 106 HC-NIC Page 15 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT charge subject to the right of the accused to pray for discharge on the grounds that he may raise in the application, if any. Mr. Amin submits that in the course of the trial, if the prosecution deems fit to rely upon or refer to a document, which is demanded by the accused at this stage, then the same will definitely be provided, but not at this stage.

16 Mr. Amin submits that what type of tests were conducted for the purpose of collecting the semen sample, the documents in that regard need not be a part of the chargesheet. It is a matter of record available with the authority concerned i.e. the expert, and as and when he would appear before the Trial Court and if he makes a reference of the same in the ExaminationinChief or in the crossexamination by the accused, the accused can always ask for such documents and the prosecution would be duty bound to provide such documents.

17 According to Mr. Amin, there is no merit in the submission canvassed on behalf of the applicant accused that the additional documents cannot be produced subsequently. There is no specific prohibition in this regard.

18 Mr. Amin submits that there is a long standing practice in the Trial Courts in the State of Gujarat that the report of the F.S.L. and other documents relating to the same are being tendered directly before the Trial Court once the trial commences. Such documents are tendered before the Court in a sealed cover. Mr. Amin submits that Section 207 of the Cr.P.C. is not mandatory and its noncompliance, by itself, would not result in causing prejudice to the accused. The purpose behind furnishing of documents and statements of witnesses to the accused at the commencement of the trial, is to provide an opportunity to the accused to know the evidence and the materials being relied upon in Page 16 of 106 HC-NIC Page 16 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT support of the charges. The chargesheet, which has been filed, makes the picture abundantly clear for the accused to know as to what is the charge against him. It is not the case that the accused is absolutely helpless at this stage and is unable to set up a proper defence.

19 Mr. Amin very vociferously submitted that the attempt on the part of the applicant accused herein is to delay the trial in one way or the other. It is true that the accused is in the judicial custody as on date and would legitimately argue that why would he delay the trial, but, according to Mr. Amin, the applicant knows the seriousness of the charge against him, and therefore, is making all possible attempts to create obstruction and hindrances before the trial commences. This, according to Mr. Amin, is abuse of the process.

20 In such circumstances referred to above, Mr. Amin, the learned Public Prosecutor prays that there being no merit in this application, the same be rejected.

21 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the applicant herein is entitled to the relief prayed for in this application.

22 Before adverting to the rival submissions canvassed on either side, I should look into the relevant provisions of law.

23 Section 173 of the Cr.P.C. reads as under;

"173. Report of police officer on completion of investigation (1) Every investigation under this Chapter shall be completed without unnecessary delay. a [(1A) The investigation in relation to rape of a child Page 17 of 106 HC-NIC Page 17 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.] (2) (i) As soon as it is completed, the officerincharge 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 offence 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, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170.

[(h)(i)whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C, 376D or Section 376E 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 officerincharge 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 Page 18 of 106 HC-NIC Page 18 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 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 subjectmatter 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 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 subsection (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (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 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)."

24 Section 226 of the Cr.P.C. reads as under:

"226. Opening case for prosecution When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."

25 Section 227 of the Cr.P.C. reads as under:

"227. Discharge If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the Page 19 of 106 HC-NIC Page 19 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT accused and record his reasons for so doing."

26 Section 228 of the Cr.P.C. reads as under:

"228. Framing of charge (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate"] shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

27 There are three sections in the Cr.P.C. relating to the final report i.e. Sections 169, 170 and 173. Section 169 relates to cases in which no person is sent up for trial, Section 170 to cases in which some person is sent up and Section 173 contains the general directions relating to both. The three sections must be read together. Although Section 173, which deals with the final report of the police, does not appear to contemplate anything but a report which leads to trial if the Magistrate approves of it, yet as the police must send a report for the investigation in every case, there is no other section under which a referred chargesheet after the investigation can be brought. Section 173 applies to a referred chargesheet. Section 173 makes it clear that the duty of making a report thereunder on completion of investigation to the Magistrate is that of the officer incharge of the police station. Such a report shall include an Page 20 of 106 HC-NIC Page 20 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT opinion of the public officer as to the result of the investigation and the formation on such opinion is the final step in the investigation and that final step is to be taken by the police officer of the police station and by no other authority.

28 The expression "police report" is defined in Section 2(r) of the Cr.P.C. as a report forwarded by a police officer to a Magistrate under Section 173(2). The report should be in the form prescribed by the State Government giving particulars mentioned in the clauses (1) to (g) of subsection (2). The report, as envisaged by Section 173(2) of the Code, has to be accompanied, as required by subsection(5) of all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by subsection (2) from its accompaniments which are required to be submitted under subsection (5). The whole of it is submitted as a report to the Court. The report must setforth the "nature of opinion".

29 In Satya Narain Musadi (supra), the Supreme Court observed as under:

"9. Section 173 (2) (i) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report in the form prescribed by the State Government and stating therein (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 offence 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, whether with or without sureties; and

(g) whether he has been forwarded in custody under S. 170. Subsec. (5) of S. 173 makes it obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses at the trial.

10. Section 173 (2) thus provides what the report in the prescribed form Page 21 of 106 HC-NIC Page 21 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT should contain. In this case the report did contain the name of the accused and the nature of the offence. In fact S. 170 provides that if upon an investigation under Chapter XII it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground to proceed against the accused such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report, etc. If the accused is on bail that fact will be notified in the final report submitted under S. 173 (2). Therefore, the statutory requirements of the report under S. 173 (2) would be complied with if the various details therein prescribed are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under S.173 (2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused, but names of the witnesses, the nature of the offence and a request that the case be tried, there is compliance with S. 173 (2). The report as envisaged by S.173 (2) has to be accompanied as required by subsec. (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by subsec. (2) from its accompaniments which are required to be submitted under subsec. (5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in S. 173 (2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under S. 173 (2) submitted by the police officer would be expecting him to do something more than what the Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with S. 11. The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial. They would all be matters of evidence and S. 11 does not require the report to be or to contain the evidence in support of the charge, its function being merely to afford a basis for enabling the Magistrate to take cognizance of the case (see Bhagwati Saran v. State of Uttar Pradesh, (1961) 3 SCR 563 at p. 577). It was, however, contended that this Court in Deo Karan Das Aggarwal's case has in terms held that one has merely to look at the police report described as chargesheet and to no other document for taking cognizance of an offence under S. 190 (1)

(b) to ascertain whether any offence was disclosed. The proposition canvassed on behalf of the appellant is not borne out by the decision relied upon. In that case the accused was prosecuted for having conducted business in a commodity governed by the Bihar Edible Oils wholesale Page 22 of 106 HC-NIC Page 22 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT Dealers Licensing Order 1965 without obtaining a licence thereunder. On a motion for quashing the prosecution it was found that the only allegation in the chargesheet was that the accused carried on business in edible oils without obtaining a requisite licence. On the facts found it transpired that the accused had already applied for a licence and had paid necessary charges and carried on business in the bona fide belief that they had sufficiently complied with the requirements of the Order. This Court held that even though no actual licence was issued to them, they could not be said to have committed any offence. On this view of the matter the prosecution was quashed. There is nothing in the decision to support the submission of the appellant before us that the prosecution in that case, ever attempted to invite this Court to look into some document other than the chargesheet or the police report in support of the submission or that the Court ignored documents other than chargesheet and quashed prosecution on the sole ground that averments in the chargesheet did not disclose any offence. Therefore, this decision is of no assistance to the appellants.

11. In this connection Mr. Nag referred to Rachpal Singh v. Rex AIR 1949 Oudh 66 wherein after observing that the failure to mention facts constituting the contravention of a rule means the absence in the report of the very first of the numerous steps in the course of the trial of something which is vital and goes to the very root of the case, a further contention on behalf of the State that the Court may at that stage look into the first information report filed in the case was negatived. This very narrow view of the matter does not commend to us. In fact, on the introduction of S. 173 in its form in the Code of Criminal Procedure, 1973 the police officer investigating into a cognizable offence is under a statutory obligation to submit along with his report under S. 173 (2) documents purporting to furnish evidence collected in the course of the investigation and the statements of the witnesses and the Court before proceeding into the case is under a duty to inquire whether the accused has been furnished with copies of all relevant documents received under S. 173 by the Court, and the entire complexion of what should normally be styled as report submitted under S. 173 (2) of the Code has undergone a change. Court can look at the report in prescribed form along with its accompaniments for taking cognizance of the offence.

12. Turning now to the chargesheet submitted in this case it sets out all the details as required by S. 173 (2) of the Code. The name of the accused is mentioned. The nature of the offence is mentioned. It is further stated that the information of the offence was given by Mahesh Kant Jha. It is also stated that there was sufficient evidence to proceed against Satya Narain Musadi appellant 1 herein under S. 7 of the Act. May be that the chargesheet could have been more informative or the information set out in the chargesheet could be styled as scanty. Some more details may have been helpful. It however, could not be said that it did not disclose an Page 23 of 106 HC-NIC Page 23 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT offence of which the Magistrate could take cognizance under S. 190 (1)

(b). Ultimately when a Magistrate looks at police report also styled as chargesheet under Section 190 (1) (b) he takes cognizance of an offence upon a police report and prima facie he does so of the offence or offences set out in the report (vide Darshan Singh Ram Kishan v. State of Maharashtra,(1972) 1 SCR 571 at p. 574). And the report under discussion does disclose an offence under S. 7 of the Act."

30 Section 173(5) of the Cr.P.C. contains an important phrase "the police officer shall forward to the Magistrate". The word used is "shall".

31 In the case of Central Bureau of Investigation vs. R.S. Pai [2002 Cri. L.J. 2029], a threeJudge Bench of the Supreme Court had the occasion to consider the question whether the word "shall" in Section 173(5) should be read as mandatory or directory. The Supreme Court, while holding that the word "shall" used in subsection (5) cannot be interpreted as mandatory, observed as under:

"7. From the aforesaid subsections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the chargesheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or chargesheet, 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 Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word 'shall' used in subsection (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under S. 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of Andhra Pradesh ((1958) SCR 283 at 293) and it was held that the word 'shall' occurring in subsection (4) of S. 173 and subsection (3) of S. 207A is not mandatory but only directory. Further, the scheme of subsection (8) of S. 173 also makes it abundantly clear that even after the chargesheet is Page 24 of 106 HC-NIC Page 24 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained."

32 In taking such view, the Supreme Court relied upon its earlier decision in the case of Narayan Rao vs. State of A.P. [AIR 1957 SC 737]. In Narayan Rao (supra), a threeJudge Bench observed as under:

"9. In order to simplify commitment proceedings preceding the trail of accused persons by a Court of Session, S.207A was added by way of amendment of the Code at the same time. In the added S. 207A, subss. (3) and (4) which are material portions of that section, are in these terms:

"(3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in S.173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.

(4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution he may take such evidence also,"

10. It will, thus, appear that in cases exclusively triable by a Court of Session, it is the duty of the Magistrate while holding a preliminary inquiry, to satisfy himself that the documents referred in S. 173 have been furnished to the accused and if he found that the police officer concerned had not carried out his duty in that behalf, the Magistrate should see to it that that is done.

After the accused have been furnished with the necessary documents, it is now required to record evidence of only such witnesses for the prosecution as had witnessed the actual commission of the offence charged against the accused and of such other witnesses as he may consider necessary in the interests of justice. From what has been said above, it is clear that the MunsiffMagistrate did record the evidence as required by subs. (4) of Page 25 of 106 HC-NIC Page 25 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT S.207A. But it has been found by the High Court on the admission of the Government Advocate, that the provisions of subs. (3) of S. 207A, had not been complied with. It is not clear as to whether all the documents contemplated by S.173 (4), quoted above, had not been furnished to the accused or documents other than the statements of witnesses had not been so supplied. The judgment of the High Court, would appear to indicate the latter, but we shall proceed on the assumption that there was an entire omission to carry out the provisions of subs. (4) of S. 173, read with sub s. (3) of S. 207A. Does such an omission necessarily render the entire proceedings and the trial null and void; or is it only an irregularity curable with reference to the provisions of S. 537 (a) of the Code? In other words, are the provisions of S. 173 (4), read with S. 207A (3) mandatory or only directory? There is no doubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished.

It has rightly been contended on behalf of the appellant that it was the duty of the Magistrate to see that the provisions aforesaid of the Code, have been fully complied with. Magistrates, therefore, have to be circumspect, while conducting such proceedings, to see to it that accused persons are not handicapped in their defence by any omission on the part of police officers concerned, to supply the necessary copies.

But we are not prepared to hold that noncompliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. The word "shall" occurring both in subs. (4) of S.173 and subs. (3) of S.207A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of S.173, should not be allowed to have such a farreaching effect as to render the proceedings including the trial before the Court of Session, wholly ineffective.

Instead of simplifying the procedure, as was intended by the amending Act, as indicated above, the result contended for on behalf of the appellant, will, necessarily, result in reopening the proceedings and trials which may have been concluded long ago. Such a result will be neither conducive to expeditious justice nor in the interest of accused persons themselves.

Certainly, if it is Shown, in a particular case, on behalf of the accused persons that the omission on the part of the police officers concerned or of Page 26 of 106 HC-NIC Page 26 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the Court may re open the proceedings by insisting upon full compliance with the provisions of the Code.

In our opinion, the omission complained of in the instant case, should not have a more farreaching effect than the omission to carry out the provisions of S. 162 or S. 360 of the Code. Courts in India, before such matters were taken to their Lordships of the Judicial Committee of the Privy Council, had taken conflicting views on the scope of S. 537 of the Code in curing such omissions as aforesaid.

In the case of Abdul Rahman v. Emperor, 54 Ind App 96 : (A I R 1927 P C 44) (A), their Lordships of the Judicial Committee, had to consider the effect of noncompliance with the provisions of S. 360 of the Code. After considering the relevant provisions of the Code, their Lordships came to the conclusion that it was a mere irregularity which could be cured by the provisions of S. 537.

In the case of Pulukuri Kotayya v. Emperor, 74 Ind App 65: (A I R 1947 P C 67) (B), the Judicial Committee had to consider the effect of breach of the statutory provisions of S. 162 of the Code. The following observations of their Lordships, at pp. 75 76 (of Ind App): (at pp.6970 of A I R) are a complete answer to the arguments advanced on behalf of the appellant before us, and we respectfully adopt them:

"When a trial is conducted in a manner different from that prescribed by the Code (as in Subramanya Iyer v. Emperor, 28 Ind App 257 (PC) (C), the trail is bad and question of curing an irregularity arises; but if the trail is conducted substantially in the manner prescribed by the code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S.537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in 54 Ind App 96: (A I R 1927 P C 44) (A), where failure to comply with S.360, Criminal P.C. was held to be cured by Ss.535 and 537. The present case falls under S. 537, and their Lordships hold the trial valid notwithstanding the breach of S. 162."

33 Coming now to Section 207 of the Cr.P.C., the object of the same is to enable the accused to defend himself properly and this is achieved by the supply of vital documents like the police report, statements of Page 27 of 106 HC-NIC Page 27 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT witnesses recorded by them, confession, etc., to the accused so that he may have notice of the charge he is to meet and can crossexamine the witnesses. The idea behind the supply of copies to the accused is to put him to notice of what he has to meet in the trial.

34 In the case of Noor Khan vs. State of Rajasthan [AIR 1964 SC 286], the object of Section 207 has been succinctly explained in the following words:

"15. The object of Ss. 162, 173 (4) and 207A(3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for crossexamining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Section 161 (8) does not require a policeofficer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution, on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach, for Section 537 Code of Criminal Procedure provides, amongst other things that subject to the provisions contained in the Code no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to S. 537 it is provided that in determining whether any Page 28 of 106 HC-NIC Page 28 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding."

35 Section 227 of the Cr.P.C. is with regard to discharge. If the Judge, after going through the record and documents submitted and also hearing the prosecution and the accused, comes to the conclusion that no sufficient ground exists to proceed against the accused, he shall discharge him. In Niranjan Singh Punjabi v. Jitendra Bijjaya, [(1990) 4 SCC 76 : (AIR 1990 SC 1962)], the Supreme Court pointed out that at the stage of framing of the charge, the Court is required to evaluate the materials and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence, as it cannot be accepted even at that initial stage to accept all that the prosecution states as a gospel truth even if it is opposed to common sense or the broad probabilities of the case.

36 In Satish Mehra vs. State (NCT of Delhi) [(2012) 13 SCC 614], the Supreme Court observed in paras 19 and 21 as under:

"19. The view expressed by this Court in Century Spinning's case (supra) and in L. Muniswamy's case (supra) to the effect that the framing of a charge against an accused substantially affects the person's liberty would require a reiteration at this stage. The apparent and close proximity between the framing of a charge in a criminal proceeding and the paramount rights of a person arrayed as an accused under Article 21 of the Constitution can be ignored only with peril. Any examination of the validity of a criminal charge framed against an accused cannot overlook the fundamental requirement laid down in the decisions rendered in Century Spinning and Muniswamy (supra). It is from the aforesaid perspective that we must proceed in the matter bearing in mind the cardinal principles of law that have developed over the years as Page 29 of 106 HC-NIC Page 29 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT fundamental to any examination of the issue as to whether the charges framed are justified or not."

"21. A criminal trial cannot be allowed to assume the character of fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and continue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the system of criminal jurisprudence that has been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, establishing the commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused..."

37 Section 228 of the Code is with regard to framing of the charge.

38 Having given a fair idea about the provisions of the Code referred to above, let me look into the caselaw as regards supply of the documents to the accused to enable him to prepare his defence in the trial.

39 In Sidhartha Vashist (supra), the Supreme Court observed in paras 79 to 92 as under:

"79. In the light of this argument, let us examine the exact nature of the duty of disclosure on the Public Prosecutor in ordinary cases of criminal trial. The Cr.P.C. imposes a statutory obligation on the Public Prosecutor to disclose certain evidence to the defense. This is brought out by sections 207 and 208 as follows:

"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 subsection (3) of section 161 of all Page 30 of 106 HC-NIC Page 30 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 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 subsection (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 subsection (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."

"208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.

(i) The statements recorded under section 200 or section 202, or all persons examined by the Magistrate;

(ii) The statements and confessions, if any, recorded under section 161 or section 164;

(iii) Any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such document 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."

"Rule 16 of the Bar Council of India Rules.

Rule 16 of the Chapter II, Part VI of the Bar Council of India Rules under the Advocates Act, 1961 is as under:

16. An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided."

Therefore, it is clear that the Code and the Bar Council of India Rules Page 31 of 106 HC-NIC Page 31 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT provide a wide duty of disclosure. But this duty is limited to evidence on which the Prosecutor Proposes to place reliance during the trial. Mr. Ram Jethmalani argued that this duty extends beyond these provisions, and includes even that evidence which may not have been used by the Prosecutor during the trial. As we have already mentioned, for this purpose, he relied upon the position in England.

80. Currently, the position in England is governed by the Criminal Procedure and Investigations Act, 1996. Prior to this enactment, the position was squarely covered by common law. This position comes out primarily in two cases. In R. v Ward (Judith Theresa) (1993) 2 All ER 577, Court of Appeal held that it was the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of witness statements to the defense and all relevant experiments and tests must also be disclosed. It was held that the common law duty to disclose would cover anything which might assist the defense. Noncompliance with this duty would amount to "irregularity in the course of the trial" under Section 2(1)(a) of the Criminal Appeal Act, 1988.

81. In R v. Preston and Ors. (1993) 4 All ER 638, on which the appellants specifically relied upon, dealt with the nondisclosure of a telephonic conversation in a matter dealing with the Interception of Communications Act, 1985. The relevant material had been destroyed in pursuance of Section 6 of the same Act. In appeal, the defendants essentially argued that the nondisclosure of the contents of the call to the defense amounted to a material irregularity. The court held that it is true that the mere fact that the material was not to be used as evidence did not mean that the material was worthless, especially, when it might have been of assistance to the defendant. But at the same time, it was also held that:

"since the purpose of a warrant issued under S. 2(2)(b) of the 1985 Act did not extend to the amassing of evidence with a view to the prosecution of offenders, and since the investigating authority was under a duty under S. 6 of the Act to destroy all material obtained by means of an interception as soon as its retention was no longer necessary for the prevention or detection of serious crime, the destruction of the documents obtained from the interception and their consequent unavailability for disclosure could not be relied upon by Defendants as a material irregularity in the course of their trial".

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.

82. In the Indian Criminal jurisprudence, the accused is placed in a Page 32 of 106 HC-NIC Page 32 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India. A person is entitled to be tried according to the law in force at the time of commission of offence. A person could not be punished for the same offence twice and most significantly cannot be compelled to be a witness against himself and he cannot be deprived of his personal liberty except according to the procedure established by law. The law in relation to investigation of offences and rights of an accused, in our country, has developed with the passage of time. On the one hand, power is vested in the Investigating Officer to conduct the investigation freely and transparently. Even the Courts do not normally have the right to interfere in the investigation. It exclusively falls in the domain of the investigating agency. In exceptional cases the High Courts have monitored the investigation but again within a very limited scope. There, on the other a duty is cast upon the Prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot free while an innocent is not punished. Even in the might of the State the rights of an accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the Courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law. It is not only the responsibility of the investigating agency but as well that of the Courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of bias mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society. In the case of Kashmeri Dev v. Delhi Administration and Anrs. [JT 1988 (2) SC 293] : (AIR 1988 SC 1323) it has been held that the record of investigation should not show that efforts are being made to protect and shield the guilty even where they are police officers and are alleged to have committed a barbaric offence/crime. The Courts have even declined to accept the report submitted by the Investigating Officer where it is glaringly unfair and offends basic canons of criminal investigation and jurisprudence. Contra veritatem lex nunquam aliquid permittit:

Page 33 of 106

HC-NIC Page 33 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT implies a duty on the Court to accept and accord its approval only to a report which is result of faithful and fruitful investigation. The Court is not to accept the report which is contra legem but to conduct judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a burden and obligation on the State Administration. The aim of criminal justice is twofold. Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the commission of crime, sincerely proving the case of the prosecution before the Court and the guilty is punished in accordance with law.

83. Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law. The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expensive power of the police to make investigation. These well established principles have been stated by this Court in the case of Sasi Thomas vs. State and Ors. [(2007) 2 SCC (Criminal) 72]; State Inspector of Police vs. Surya Sankaram Karri [(2006) 3 SCC (Criminal) 225 : (AIR 2007 SC (Supp) 1860 : 2006 AIR SCW 4576) and T.T. Antony vs. State of Kerala [(2001) 6 SCC 181 : (AIR 2001 SC 2637 : 2001 AIR SCW 2571). In Nirmal Singh Kahlon vs. State of Punjab [AIR 2009 SC 984] : (2009 AIR SCW 60) this Court specifically stated that a concept of fair investigation and fair trial are concomitant to preservation of fundamental right of accused under Article 21 of the Constitution of India. We have referred to this concept of judicious and fair investigation as the right of the accused to fair defence emerges from this concept itself. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to received in accordance with law is not denied to him contrary to law.

84. It is pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry/trial by the Court. Let us examine the extent of this right of an accused in light of the statutory provisions and the manner in which the law has developed under the criminal jurisprudence. To understand this concept in its right perspective we must notice the scheme under the provisions of Section 170 to 173 of the Criminal Procedure Code. All these provisions fall under Chapter XII of the Code which deals with, information of the police and their powers to investigate. The power of the police to investigate freely and fairly is well recognized and codified in law. In terms of Section 170, the Investigating Officer when satisfied that Page 34 of 106 HC-NIC Page 34 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT sufficient evidence or reasonable grounds exist he shall forward accused under custody to a Magistrate along with such weapons or articles which may be necessary to be produced before the Court. Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary under this chapter where he shall enter daybyday proceedings in the investigation carried out by him. He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness is recorded during the investigation under Section 161 shall be inserted in that diary. A Criminal Court is empowered under Section 172(2) to send for the diaries and they could be used by the Court but not as evidence in the case but to aid it in such inquiry for trial. However, subsection (3) of the same Section provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the Court uses them for the purposes of contradicting such police officers in terms of Section 172 then Section 161 or 145 provisions would apply. Section 173 commands the investigating agency to complete the investigation expeditiously without unnecessary delay and when such an investigation is completed, the officerincharge of the police station shall forward to a Magistrate empowered to take cognizance of offence on a police report with the details in the form as may be prescribed by the State Government and provide the information required under this Section. Provisions of Section 173 (5) contemplates and make it obligatory upon the Investigating Officer where the provisions of Section 170 apply to forward to the Magistrate along with his report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170(2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate. Some element of discretion is vested with the police officer under Section 173(6) where he is of the opinion that any such statement is not relevant to the subjectmatter of the proceedings or its disclosure to accused is not essential in the interest of justice and is expedient in the public interest, he shall indicate that part of the statement refusing a Magistrate that part from the copies to be granted to the accused and stating his reason for making such a request. Subsection (7) of the same Section is indicative of another discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents refer to subsection (5) of the Section. Section 173(8) empowers an Investigating Officer to submit a further report if he is able to correct further evidence. Once this report in terms of Section 173 is received the court shall proceed with the trial of the case in accordance with law.

85. What is the significance of requiring an Investigating Officer/officer Page 35 of 106 HC-NIC Page 35 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT incharge of a police station to maintain a diary? The purpose and the object seems to be quite clear that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation.

86. In the case of Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51, this Court stated the principle of law that the criminal court may send for the police diaries of a case under inquiry/trial in such court and may use such diaries, not as evidence in the case but to aid in such inquiry or trial. It seems to the Court that the learned Judge in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The proper use of diaries he could make in terms of Section 172, Cr.P.C. by elucidating points which need clarification. The Court in this case was primarily concerned with the argument that diaries were not produced.

87. Further in the case of Khatri v. State of Bihar AIR 1981 SC 1068, though in a writ petition this Court was concerned with a question whether the documents called for by the Court vide its Order dated 16th February, 1981 liable to be produced by the State or production of those documents is barred under Sections 162 and 172 of the Code and the petitioners in those cases are not entitled to see such documents. The Court rejecting the contention held as under:

"It is common ground that Shri L.V. Singh was directed by the State Government under Section 3 of the Indian Police Act, 1861 to investigate into twenty four cases of blinding of undertrial prisoners where allegations were made by the undertrial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody, Shri L.V. Singh through his associates carried out this investigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government. These reports clearly relate to the issue as to how, in what manner and by whom the twentyfour undertrial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed by the State Government to investigate. If that be so, it is difficult to see how the State can resist the production of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under Section 35 of the Indian Evidence Act."

88. In the case of Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341, this Court reiterated the principle that use of entries in the case diary is really of no use and is of benefit to the accused but unless the Investigating Officer or the Court uses the entries in the case where either to refresh the memory or contradicting the Investigating Officer as Page 36 of 106 HC-NIC Page 36 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT previous statement under Section 161 in terms of Section 145 of the Evidence Act the entries can be used by the accused as evidence. The free use thereof is not permissible under defence.

89. In case Mukund Lal v. Union of India, AIR 1989 SC 144, this Court clearly stated the denial to the accused of an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the Court has used these entries for the purpose of contradicting such police officer cannot be said to be unreasonable. This was treated to be a very important safeguard as the Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial and has empowered the Court to call for these diaries, therefore, the right of the accused is not unfettered but in fact is limited as noticed.

90. Usefully, reference can also be made to the judgment of this Court in the case of Shamshul Kanwar v. State of U.P. AIR 1995 SC 1748 :

(1995 AIR SCW 2741) wherein this Court while issuing direction for requiring the State to make a general hearing in terms of Section 172 of the Code clearly stated that it was mandatory for the police officer/in charge to maintain the diary in terms of the said provision and there is jurisdiction in the Criminal Code to call such diaries and make use of them not as evidence but only to aid such inquiry or trial. It is generally confined to utilize the information therein as foundation for the question put to the witnesses, particularly, to the police witnesses where the police officer has used the entries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer then provisions of Section 161, or 145, would be applicable. The right of the accused to crossexamine the police officer with reference to the entries in the General Diary is very much limited in extent and even that limited scope arises only when the Court uses the entries for the aforestated purposes. The Investigating Officer has a right to refresh his memories and can refer to the general diary. The Court has power to summon the case diary in exercise of its powers and for the purposes stated. The accused is vested with the power of making use of the statements recorded during investigation for the purposes of contradiction and copies thereof the accused is entitled to see in terms of Sections 2 and 7 of the Code (State of Kerala v. Babu (1999) 4 SCC 621 : (AIR 1999 SC 2161 : 1990 AIR SCW 2172) and State of Karnataka vs. K. Yarappa Reddy (1999) 8 SCC 715 : (AIR 2000 SC 185 : 1999 AIR SCW 4276)).

91. As is evident from the consistently stated principles of law, that right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions aforereferred. But still the accused has been provided with definite rights under the provisions of the Code and the constitutional mandate to face the charge against him by a Page 37 of 106 HC-NIC Page 37 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT fair investigation and trial. Fairness in both these actions essentially needs to be adhered to. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The Investigating Officer is entitled to collect all the material, what in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. 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. Under proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. 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, crossexamination or the production of any document or other thing for which the Court has to pass a reasoned order. 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 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 places 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. 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 afore referred. 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 Page 38 of 106 HC-NIC Page 38 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT disclose would be more certain. As already noticed the provisions of Section 207 has a material bearing on this subject and makes 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, statement, confessional statement 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 subsection (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.

92. 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 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. 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 bonafidely 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 nonproduction or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially. The concept of disclosure and duties of the prosecutor under the English System cannot, in our opinion, be made Page 39 of 106 HC-NIC Page 39 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT applicable to 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 nonfurnishing 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 set back in the facts and circumstances of the case. The accused even did not raise this issue seriously before the Trial Court."

40 Manu Sharma alias (supra), was later on, relied upon in the case of V.K. Sasikala (supra). The Supreme Court observed in paras 11, 12, 13, 14, 16 and 17 as under:

"11. The parameters governing the process of investigation of a criminal charge; the duties of the investigating agency and the role of the courts after the process of investigation is over and a report thereof is submitted to the court is exhaustively laid down in the different Chapters of the Code of Criminal Procedure, 1973 (Cr.P.C.). Though the power of the investigating agency is large and expansive and the courts have a minimum role in this regard there are inbuilt provisions in the Code to ensure that investigation of a criminal offence is conducted keeping in mind the rights of an accused to a fair process of investigation. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a day to day basis and the power of the court under Section 172 (2) and the plenary power conferred in the High Courts by Article 226 of the Constitution are adequate safeguards to ensure the conduct of a fair investigation. Without dilating on the said aspect of the matter what has to be taken note of now are the provisions of the Code that deal with a situation/stage after completion of the investigation of a case. In this regard the provisions of Section 173 (5) may be specifically noted. The said provision makes it incumbent on the investigating agency to forward/transmit to the concerned court all documents/statements etc. on which the prosecution proposes to rely in the course of the trial. Section 173(5), however, is subject to the provisions of Section 173(6) which confers a power on the investigating officer to request the concerned court to exclude any part of the statement or documents forwarded under Section 173(5) from the copies to be granted to the accused. The court having jurisdiction to deal with the matter, on receipt of the report and the accompanying documents under Section 173, is next required to decide as to whether cognizance of the offence alleged is to be taken in which Page 40 of 106 HC-NIC Page 40 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT event summons for the appearance of the accused before the court is to be issued. On such appearance, under Section 207 Cr.P.C., the concerned court is required to furnish to the accused copies of the following documents:

(ii) The police report;

(iii) The first information report recorded under section 154; (iiii) The statements recorded under subsection (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 subsection (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 subsection (5) of section 173.

12. While the first proviso to Section 207 empowers the court to exclude from the copies to be furnished to the accused such portions as may be covered by Section 173(6), the second proviso to Section 207 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 the voluminous content thereof. We would like to emphasise, at this stage, that while referring to the aforesaid provisions of the Code, we have deliberately used the expressions "court" instead of the expression "Magistrate" as under various special enactments the requirement of commitment of a case to a higher court (court of Sessions) by the Magistrate as mandated by the Code has been dispensed with and the special courts constituted under a 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.

13. It is in the context of the above principles of law and the provisions of the Code that the rights of the appellant will have to be adjudicated upon by us in the present case. It is not in dispute that after the appearance of the accused in the Court of the Special Judge a large number of documents forwarded to the Court by the Investigating Officer along with his report, had been furnished to the accused. Thereafter, charges against the accused had been framed way back in the year 2007 and presently the trial has reached the stage of examination of the second accused, i.e. appellant under the provisions of Section 313 Cr.P.C. At no earlier point of time (before the examination of the second accused under Section 313 Cr.P.C.) the accused had pointed out that there are documents in the Court which Page 41 of 106 HC-NIC Page 41 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT have been forwarded to it under Section 173 (5) and which have not been relied upon by the prosecution. It is only at such an advanced stage of the trial that the accused, after pointing out the said facts, had claimed an entitlement to copies of the said documents or at least an inspection of the same on the ground that the said documents favour the accused.

14. Seizure of a large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C., a fair amount of application of mind on the part of the investigating agency is inbuilt in the Code. Such application of mind is both with regard to the specific offence(s) that the Investigating Officer may consider to have been committed by the accused and also the identity and particulars of the specific documents and records, seized in the course of investigation, which supports the conclusion of the Investigating Officer with regard to the offence(s) allegedly committed. Though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173 (5) in every situation where some of the seized papers and documents do not support the prosecution case and, on the contrary, supports the accused, a duty is cast on the Investigating Officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, it is not impossible to visualize a situation whether the Investigating Officer ignores the part of the seized documents which favour the accused and forwards to the Court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the Court would it not be the duty of the Court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution? What would happen in a situation where such documents are not forwarded by the Investigating Officer to the Court is a question that does not arise in the present case. What has arisen before us is a situation where evidently the unmarked and unexhibited documents of the case that are being demanded by the accused had been forwarded to the Court under Section 173 (5) but are not being relied upon by the prosecution. Though the prosecution has tried to cast some cloud on the issue as to whether the unmarked and unexhibited documents are a part of the report under Section 173 Cr.P.C., it is not denied by the prosecution that the said unmarked and unexhibited documents are presently in the custody of the Court. Besides, the accused in her application before the learned Trial Court had furnished specific details of the said documents and had correlated the same with reference to specific seizure lists prepared by the investigating agency. In such circumstances, it can be safely assumed that what has been happened in the present case is that along with the report of investigation a large number of documents have been forwarded to the Court out of which the prosecution has relied only on a part thereof leaving the remainder unmarked and unexhibited."




                                            Page 42 of 106

HC-NIC                                     Page 42 of 106    Created On Sun Aug 13 07:57:51 IST 2017
            R/SCR.A/778/2017                                                        JUDGMENT

"16. The declaration of the law in Sidhartha Vashisht (supra) may have touched upon the outer fringe of the issues arising in the present case. However, the positive advancement that has been achieved cannot, in our view, be allowed to take a roundabout turn and the march has only to be carried forward. If the claim of the appellant is viewed in context and perspective outlined above, according to us, a perception of possible prejudice, if the documents or at least an inspection thereof is denied, looms large. The 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 raised, can be understood and explained in several reasonable and acceptable ways. Suffice it would be to say that individual notion of prejudice, 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. If the present appellant has perceived certain difficulties in answering or explaining some part of the evidence brought by the prosecution on the basis of specific documents and seeks to ascertain if the allegedly incriminating documents can be better explained by reference to some other documents which are in the court's custody, an opportunity must be given to the accused to satisfy herself in this regard. It is not for the prosecution or for the Court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop and if the same is founded on a reasonable basis it is the duty of the Court as well as the prosecution to ensure that the accused should not be made to labour under any such perception and the same must be put to rest at the earliest. Such a view, according to us, is an inalienable attribute of the process of a fair trial that Article 21 guarantees to every accused.

17. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or noncompliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of the Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the Court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to in the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of Page 43 of 106 HC-NIC Page 43 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our Criminal Jurisprudence have to be balanced."

41 In Gurubachan (supra), the Supreme Court observed as under:

"4 There is also the fact that before the amendment the accused had to request the Court to refer to the statements made to the police officer and furnish him with a copy thereof in order that the same may be used for contradicting the witness, but as it now stands, no such request is necessary because there is, as will be shown later, a provision to the effect that copies should be given earlier. Section 173 relates to the report of the police officer and subs. (4) is practically a new provision. There is also a new subs. (5) added. Subsection (4) is to the following effect:

"After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under subs. (1) and of the first information report recorded under S. 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under S. 164 and the statements recorded under subs. (3) of S. 161 of all the persons whom the prosecution proposes to examine as its witnesses."

It is clear from this new subsection that when the police officer after completing the investigation sends his report to the Magistrate, copies of the statements and documents referred to should be furnished to the accused. The object of this provision is to put the accused on notice of what he has to meet at the time of the inquiry or trial. The unamended subs. (4) had only laid down that a copy of the report forwarded to the Magistrate, shall, on application, be furnished to the accused before the commencement of the inquiry or trial. There was no compulsion to furnish him with copies of the statements, documents etc. We may now refer to the new provision inserted in the Code as S. 207A relating to the procedure to be adopted in proceedings instituted on police report relating to enquiry into a case triable by a Court of Session. Subclauses (3) and (4) are as follows:

"(3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in S. 173 have been furnished to the Page 44 of 106 HC-NIC Page 44 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished."

"(4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one more of the other witnesses for the prosecution he may take such evidence also."

Subsection (4) makes a radical change in the manner of recording evidence in the Committing Court, for it lays down that only witnesses to the actual commission of the offence, as may be produced, by the prosecution need be examined by a Committing Magistrate. Other witnesses, who support the prosecution story in diverse particulars, need not be examined by the Committing Court. Subsection (4) of S. 173, read with subs. (3) of S. 207A makes ample provision for the defence to be in possession of all the statements and documents before the inquiry begins, but nowhere is it stated either in S. 173 (4) or S. 207A (3) that the statements in connected cases should be supplied to the accused. In this connection we may also refer to S. 251 (A) inserted in chap. XXI, relating to the trial of Warrant Cases by Magistrates. Subsection (1) of S. 251 (A) corresponds to S. 207A (3). Even here there is no reference to the statements in connected cases.

In chap. XXIII relating to trials before High Courts and Courts of Sessions from S. 286 onwards, the procedure is laid down for the trial to close of cases for prosecution and defence. Not where is there in this Chapter any direction, or rule to the effect that in a Session trial the defence is to be supplied with copies of statements taken under S. 161. The reason, in our opinion, is that such statements should have been given under S. 207A in the initial stage of the inquiry before the Committing Court. Therefore, we cannot say that there has been any nonobservance of a mandatory rule guiding the conduct of the trial in the Sessions Court; but the contention is that since the initiation of the prosecution is before the committal Court, the noncompliance of S. 207A would vitiate even the trial before the Sessions Court. A close examination of this argument reveals its untenability. In the Code of Criminal Procedure (Amendment) Act (26 of 1955), S. 116 lays down the savings, where subs. (3) (subcl.

(c) Ed.) says among others that S. 207A or S. 251A of the principal Act as amended by that Act, shall not apply to or affect any inquiry or trail before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such commencement and which is pending on that date and such inquiry or trial shall be continued and disposed of as if this Act had not been passed. As stated already, the first witness for the prosecution in the committal stage was examined on 3rd December 1955, Page 45 of 106 HC-NIC Page 45 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT i.e., before the commencement of the Amending Act on 1st January 1956. The inquiry was pending in the committal Court at the time the Act came into force. It was not possible to apply S. 207 A at a time when it was not on the statute book and therefore, it is an impossibility to invoke that provision in the instant case but Mr. Sethi contends that subs. (a) of S. 116 does not refer to S. 174, subs. (4) and, therefore, there has been a violation. The short answer to this is that even this provision has not been made to have retrospective effect and the stage at which the report of the police to the Magistrate had to be sent had long ago passed. In these circumstances, we are of the opinion that no provisions of the amended Code relating to the supply of copies of statements recorded under S. 161 (3) can apply to the present case. But in view of the fact that even if they are applicable, we are satisfied that there is no prejudice caused to the accused, as stated already, and we do not think it necessary to express any final opinion on this question."

42 A learned Single Judge of this Court in the case of Himatlal (supra) considered the question whether the accused was entitled to be supplied with the grounds of opinion given by the handwriting expert relating to the documents alleged to have been forged. The Court observed as under:

"3 From the order it appears that the report of the handwriting expert who examined those documents containing grounds of his opinion has been supplied to the accused and on that basis that point has not been considered. The learned advocates appears (appearing ?) for the petitioner and for accused No. 6, opponent No. 6 state that no such grounds of his opinion have been supplied (sic) is the bare opinion of the Chief State Examiner of Questioned Documents, C.I.D.G.S. Ahmedabad and that has been annexed with this application. The learned Assistant Government pleader is not able to satisfy us by showing that the grounds of opinion have been also supplied to the accused. It is, therefore, necessary to consider whether the accused are entitled td claim the grounds or reasons which led the handwriting expert to give an opinion in respect of the writings in question. Section 173, SubS. (4) of the Criminal P.C. requires the police officer in charge of the case to furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under SubS. (1) and of the first information report recorded under S.154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements etc. The words ''and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely" would obviously cover not only the opinion but also grounds or reasons for giving such an opinion given by the handwriting expert. If Page 46 of 106 HC-NIC Page 46 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT therefore, the grounds are sought to be relied upon by the prosecution for determining the question of identity of the handwritings of certain documents in the case, they form one homogeneous document and cannot be separated, It is not that his opinion can be exhibited as in case of some other opinions etc. contemplated in S.545 (sic ?) of the Criminal P.C. and it has, therefore, to be proved. The expert has, therefore, to be examined and he would have to state before the Court his grounds for such an opinion. Those grounds should, therefore, be supplied to the accused if they are sent by him to the investigating officer and that would be in the nature of a statement obtained from him as it were under S.162 of the Criminal P.C. Besides, the opinion becomes relevant in any such case under S.45 of the Evidence Act. At the same time, S.51 of the Evidence Act provides that whenever the opinion of any living person is relevant, the grounds on which such living person is relevant, the grounds on which such opinion is based are also relevant. In other words, the grounds on which any such opinion is based and the opinion which he ultimately gives are both relevant in any such inquiry and if the prosecution were to rely upon any such opinion as a piece of evidence against the accused in any criminal trial, that has to be supplied to the accused under S.173(4) of the Code. If the grounds are not supplied, the accused would not be able to know on what basis such an opinion was arrived at. He would be put to disadvantage in his defence, and fairness in a criminal trial demands that they have to be supplied to the accused. The accused should not be taken unawares at the time of trial for, after all, the intention of the Legislature behind S.173(4) of the Criminal P.C. is to appraise the accused of all such evidence that is likely to be produced against him in the case. Now when no such grounds, on which the opinion has been given by the expert, are supplied to the accused, as urged before me, the learned Magistrate shall see that the same are supplied to each one of the accused before the trial or inquiry commences."

43 I have to my advantage a Division Bench decision of this very Court in the case of Pravinkumar Lalchand Shah vs. State of Gujarat [1982 Cri. L.J. 763]. The issue before the Division Bench was whether during the trial of a criminal case wherein the question of handwriting is involved. The accused are entitled to the copies of the enlarged photographs from the prosecution under the provisions of Section 173(5) and Section 207 of the Criminal Procedure Code. What can be gathered from the facts of the said case is that the prosecution relied on the evidence of the handwriting expert because the handwriting expert Page 47 of 106 HC-NIC Page 47 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT had given his opinion about the handwritings of the accused. At the trial stage, the accused made a request to the Court that as they had not been supplied with the enlarged photographs of the disputed and admitted signatures, it would not be possible for them to prepare their defence properly. The case of the accused therein was that he wanted to take help of a private handwriting expert to prepare the defence and also to find out whether the alleged handwritings were forged and also with the help of the private handwriting expert, if necessary, to crossexamine the State handwriting expert. Such applications were mainly given on the strength of the provisions contained in Section 173 and Section 207 of the Cr.P.C. The applications were rejected by the Court concerned on the ground that the enlarged photographs were not covered under the documents which are to be supplied under the provisions of the aforesaid two sections of the Cr.P.C. It was also canvassed before the Trial Court that the prosecution did not rely upon the enlarged photographs, but they merely relied upon the opinion, the report and the reasons given by the handwriting expert and the copies of the opinions and the reasons were already supplied to the accused. It was also submitted that as the prosecution did not have the copies of the enlarged photographs with them and as they did not want to produce them in the Court, the accused could not have asked for the enlarged photographs. The Division Bench, while holding that the accused persons were entitled to the enlarged photographs of the disputed as well as the specimen handwritings and signatures explained the importance and the true purport of the provisions of Sections 173 and 207 of the Cr.P.C., observed as under:

"6. The important part of this section is SubSec. (v) which refers to any other document or relevant extract thereof forwarded to the Magistrate with the police report under SubSec. (5) of Section 173. It was submitted on behalf of the State that under SubSec. (v) of Section 207, the Page 48 of 106 HC-NIC Page 48 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT Magistrate has to furnish without delay to the accused, free of cost, a copy of any other document or relevant extract thereof forwarded to the Magistrate with the police report under SubSec.(5) of S.173. It is therefore submitted that if the police have not forwarded any document to the Magistrate under SubSec. (a) of S.173, then the question of furnishing to the accused, free of cost, a copy of such a document would never arise. It is the submission that the enlarged photographs are not sent by the police to the Magistrate under SubSec. (5) of S.173 and therefore this provision would not apply. We shall have, therefore, to consider whether the Court would be required to supply copies of only those documents which are forwarded to it under SubSec. (5) of S.173 of the Code. In order to appreciate the submission we have to see whether the Court has any other power to insist on the prosecution to send some other copies which the Court considered necessary from the nature of the dispute or the range of evidence which should be laid by the prosecution in the case. As considered earlier, under SubSec. (5) of S.173 of the Code, the police officer is required to forward to the Magistrate "all documents and relevant extracts thereof on which the prosecution proposes to rely." We would emphasise only this portion because SubSec. (v) of Section 207 is not very important nor the aspect about the police having already sent other documents is relevant for our purposes. The question to be considered is, if the documents asked for by the accused can be brought within the provisions of SubSec. (5) of S.173, then it can well be said that the police shall have to forward to the Magistrate the documents which are asked for by the accused and for that, it will be necessary to consider whether they are the documents on which the prosecution proposes to rely. If the prosecution proposes to rely the documents, then the documents should be sent to the Court and the copies of those documents should be the made available to the accused. So the dispute is centred round the words "on which the prosecution proposes to rely." It was very strenuously argued before ms on behalf of the State that if the prosecution does not propose to rely on the enlarged photographs, then the accused are not entitled to the enlarged photographs and it has been emphatically submitted before this Court as well as in the Trial Court that the prosecution did not propose to rely on the enlarged photographs because they did not want to produce those enlarged photographs in evidence. On this hypertechnical interpretation of the wards and taking an attitude of showing that the prosecution not rely an the enlarged photographs, the State insists on dismissal of the applications.

7. It cannot be gainsaid that Court is not precluded from investigating into the matter whether the prosecution relies on a particular documents not. In order not to supply the document and consequently the copies thereof, the prosecution may say that it does not rely on a particular document. But the Court shall have to see whether that document is necessarily interlinked with the prosecution evidence on which the prosecution Page 49 of 106 HC-NIC Page 49 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT proposes to rely. It is submitted on behalf of the applicants that order to facilitate the accused to prepare their proper defence, it may be necessary for them to take advice of an expert so as to be able to confront the opinion of the State expert with the opinion of the private expert and also to find out whether the opinion given by the State expert is proper or not. It was submitted that the private handwriting expert cannot give opinion without the enlarged photographs of admitted and disputed writings and hence the accused would not be able to prepare his defence properly in absence of such photographs. As against this it was submitted on behalf of the State that the documents are in the Court and if the accused wanted they could take the photographs, enlarge them and consult their own expert. This is certainly attractive suggestion but the question to be considered is whether this would be meeting the requirements of S.173(5) or S.207 of the Criminal P.C. which are enacted with a view to facilitating the accused to effectively prepare his own defence. In order to understand the necessity for proposing these amendments, it will be worthwhile to refer to the previous enactments and also the necessity to make this change. So far as giving of copies is concerned, the amendment was carried out by Act 26 of 1955 so far as S.173 is concerned. Prior to 1955 S.173 of the Criminal Procedure Code was to the following effect :

"173. (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is complete the officer in charge of the police station shall

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the from prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) 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.

(2) Where a superior officer of police has been appointed under S.158, the report shall, in any cases 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.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall Page 50 of 106 HC-NIC Page 50 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT make such order for the discharge of such bond or otherwise as he thinks fit.

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial.

Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost."

So this provision did not contain a requirement of sending the copies to the Court or supplying the copies to the accused except furnishing of copies of any report forwarded under S.173 (old) to the accused before commencement of the trial and it was left at the discretion of the Magistrate to give that copy free of cost for some special reasons thought fit by the learned Magistrate. This SubSection (4) of S.173 was substituted by SubSecs. (4) and (5) by Act 26 of 1955. Before the amendment of the Criminal Procedure Code in 1973, SubSections (4) and (5) which were added to S.173 were as follows :

"(4) After forwarding a report under this Section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under SubSec. (1) and of the first information report recorded under S.154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under S.184 and the statements recorded under SubSec. (3) of S.161 of all the persons whom the prosecution proposes to examine as its witnesses.

(5) Notwithstanding anything contained in SubSec. (4), if the police officer is of opinion that any part of any statement recorded under SubSec. (3) of S.161 is not relevant to the subjectmatter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and in such a case, he shall make a report to the Magistrate stating his reasons for excluding such part;

Provided that at the commencement of the inquiry or trial, the Magistrate shall, after perusing the part so excluded and considering the report of the police officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused."





                                            Page 51 of 106

HC-NIC                                     Page 51 of 106    Created On Sun Aug 13 07:57:51 IST 2017
            R/SCR.A/778/2017                                                       JUDGMENT

In this SubSection (4) the important words are "and all other documents or relevant extracts thereof, on which the prosecution proposes to rely". These words were exactly the same which are found in SubSec. (5)(a) of the amended S.173. So it can well be said that the provision brought out in 1955 is practically the same except for some small changes so far as the present Code is concerned. It will therefore be necessary to consider what was the intention of the Legislature in making these changes. In paragraph 17 of the Joint Committee Report, it has been observed as follows :

"They consider that it is very necessary, in order to give the accused all possible help in defending himself that he should be aware of all the statements, reports, confessions, etc., before the commencement of the trial."

So the Joint Committee thought that this provision was necessary with a view to giving the accused all possible help in defending himself and therefore it was found necessary that he should be made aware of all the statements, reports, confessions, etc., before the commencement of the trial. Now whether the consideration of necessary help to the accused for defending himself can be left to the sweet will of the prosecution or should be open for the Court to consider if proper reference is made, is a moot question. Whether from the documents supplied to him the accused can property prepare for his defence or not would be a point to be considered by the Court on the strength of the reference made to it by the respective parties. In that circumstance the accused can tell the Court that absence of a particular document would not afford him at all the opportunities to prepare properly for his defence. At that stage the prosecuting agency also can show to the Court that all the possible materials for formulating the defence for the accused have been supplied and whatever the accused now asked is not necessary for preparing the proper defence and also that the prosecution does not propose to rely on it. If the Court is satisfied that the documents are not necessary for preparing the proper defence, then the Court may consider that the documents will not be necessary. But notwithstanding the assertion of the prosecution that it does not propose to rely on that document, the Court comes to the conclusion that on the material date available before it without a particular document the accused cannot prepare his defence properly, then would it not have the authority to direct the prosecution to produce the document ? The answer is very simple. The Court's power for this can be exercised in view of Sub Sec. (5) of S.173 meaning thereby that if the Court finds that all the documents which the police have sent do not contain the document necessary for preparing proper defence of the accused, then it can call for the document because it can be considered that it would be a document on which the prosecution proposes to rely. Likewise under Sec. 91 of the Cr. P.C. the Court has the power to summon a person to produce a document or a thing. According to this provision, if any Court considers that production of any document or other thing is necessary or desirable for the Page 52 of 106 HC-NIC Page 52 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT purpose of any inquiry, trial or other proceedings under this Code before such Court, then the Court may issue a summons 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. So this authority is there with the Court. The question to be considered is whether that particular document is a document which can be considered to be such on which the prosecution proposes to rely.

8. It was the submission on behalf of the State, as stated earlier, that the insistence of the accused on the enlarged photographs is not proper because the prosecution does not propose to rely on them. Arguments are advanced before us on the strength of evidence led in the Trial Court wherein at one stage the handwriting expert said that when he formed an opinion and gave the report with reasons, he had referred to the enlarged photographs and from that he has based an opinion about the particular handwriting before him. It is also stated before us that in answer to the question by the Court, the handwriting expert stated that he could have given the opinion without the enlarged photographs. Now whether he could have given the opinion without the enlarged photographs is something which has been brought from him in a hypothetical way because according to the submissions made before us it was a clear case of the handwriting expert that he had referred to the enlarged photographs for forming the opinion. So first of all we shall have to see whether for giving an opinion and also for forming an opinion about the particular handwriting by the prosecution for defence advocate or the defence expert, or for the assessment of the Court it would be necessary to have the enlarged photographs. For that it will be worthwhile to refer to opinions of some experts who have written books on such subjects. The book "Questioned Documents" by Albert S. Osborn, second edition, in Chapter V at page 39 mentions that photographs are useful in nearly, every questioned document investigation and in many cases it is impossible without them to present the facts to a court and jury in an effective, convincing manner. It further mentions that photographs often make clear what otherwise may be hidden or indistinct, and this fact alone is sufficient reason for their use. It is further observed at page 40 last paragraph that the most important reason for making photographs of a disputed document is that by this means the writing in question can be accurately enlarged so that every quality and characteristic of it can be clearly and properly interpreted whether the facts so shown point to genuineness or to forgery."

"13. It should be noted that under the old Criminal Procedure Code to which we have already referred to, the accused were not entitled to any copies. We have also considered that with the laudable object of making available to the accused a fair chance of preparing his defence, S.173(4) Page 53 of 106 HC-NIC Page 53 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT and (5) are added in the statute by Amending Act 26 of 1955. The object of this amendment was firstly to avoid delay and to expedite the trial and secondly that before the commencement of the trial the accused must have the clear picture of his case. So far as the Sessions cases are concerned or the warrant trials are concerned prior to the amendment, there were two stages. Before the committal order, evidence was led by the prosecution before the committal court and the defence was entitled to crossexamine if at all necessary. But that required the prosecution to lay on the table the entire case on which the prosecution relies against the accused. This was known to the accused before the commencement of the sessions trial. Likewise there was trial before the framing of the charge so far as the complaints, warrant cases based on police reports were concerned. That position has continued so far as the private complaints are concerned wherein the copies would not be available. But in those cases also before the charge is framed, the accused would know what is the case of the prosecution. For cases based on police report, in order to avoid this duplicity and in order to make available to the accused the material on which the prosecution relies, the procedure is changed. In those trials if the expert came with the enlarged photographs, they were available to the accused for observation and if the expert relies on the enlarged photographs, can it not be said that the prosecution relies on the document ? The close examination of the enlarged photographs is the only mode on which the expert relies for forming his opinion. If these things are considered, then it can well be said that they are the documents necessary for the defence and therefore strict hypertechnical way of interpreting the words of S.173(5)(a) or S.207(v) would not be meeting the spirit of the enactments. In the case of Willie (William) Slaney v. State of Madhya Pradesh, reported in AIR 1956 SC 116 : (1956 Cri LJ 291), Bose J. observed :

"The Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain wellestablished and wellunderstood lines that accord with our notions of natural justice."

This, therefore, clarifies as to what is the necessity for considering the privilege or right of the accused even in a procedural law. We are considering this because it was attempted to be argued that the provisions of the Criminal Procedure Code being merely procedural, there is no substantive right in the accused and therefore it does not cut at the root of the ultimate finding of a Court. This argument is based on the question whether the Court has in the ultimate analysis reached a correct finding where the trial is still proceeding and the accused has come to vindicate his right in order to get the copies necessary for his defence. We are observing this because from this judgement it has been attempted to be shown to us Page 54 of 106 HC-NIC Page 54 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT that the Court has also observed that except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves and other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. The question here is still not so ripe as to consider whether any prejudice has been caused to the accused or not. Here is the question of considering the right to the accused to get a particular copy in order to formulate his defence properly. In the case of Narayan Rao v. State of Andhra Pradesh, reported in AIR 1957 SC 737, the question of not supplying the copies to the accused was considered and therein it was observed that non compliance of the provisions of S.173(4) has not the result of vitiating the proceedings and the subsequent trial. In that case some copies were not given to the accused and the trial proceeded and then a grievance was made. Considering the amended provisions the Supreme Court observed as follows (at pp. 74041) : "In order to simplify commitment proceedings preceding the trial of accused persons by a Court of Session, S.207A was added by way of amendment of the Code in 1955. From SubSs. (3) and (4) of that section it is clear that in cases exclusively triable by a Court of Session, it is the duty of the Magistrate while holding a preliminary inquiry, to satisfy himself that the documents referred in S.173 have been furnished to the accused and if he found that the police officers concerned had not carried out his duty in that behalf, the Magistrate should see to it that that is done." (Emphasis supplied).

It was submitted on behalf of the State that this judgement merely shows that the Magistrate is to see that the documents referred to under S.173 have been furnished to the accused. It is therefore the submission that if the prosecution does not rely on the documents themselves, those documents will not be the documents referred to in S.173 and therefore the documents are not required to be given to the accused. We have to appreciate that under S.207 of the Cr. P.C. , 1973, the Magistrate has to supply those documents. But prior to that the Magistrate had to be satisfied and in this very Supreme Court judgement it has been observed that if the Magistrate finds that some documents are not supplied, then the Magistrate should see to it that it is done. Those powers of the Magistrate or the Court still continue and if the Court finds that the police officer has not sent the requisite document required under S.173(5)(a), then it can certainly direct their production. This we have already considered. But the important observations of the Supreme Court in Narayan Rao's case (supra) are as follows : Page 55 of 106 HC-NIC Page 55 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT "The provisions contained in S.173(4) and S.207A(3) have been introduced by the Amending Act of 1955, in order to simplify the procedure in respect of inquiries lending up to a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence are furnished." (Emphasis supplied) The portion which we have emphasised would clearly show that the Court has not merely to be satisfied by referring to only the documents sent by the police along with the report but the Court has to see that the accused persons must have all the information for the proper conduct of their defence. If it can well be said that the necessity of enlarged photographs is there for the defence of the accused, then that cannot be denied to him. We have already considered from the books referred to above that necessity of enlarged photographs is there not only for the expert to reach an opinion but it would be also necessary for the Court to come to a proper conclusion about the writings. It does not require to be stressed that the opinion of a handwriting expert is merely an opinion evidence and it is not conclusive. It merely corroborates the evidence led by the witnesses who are familiar with the writings. But in order to come to the conclusion whether the disputed writing is forged or otherwise the prosecution as well as the defence and the Court will be required to look to the writing and especially the Court shall have to form its own opinion. In order to form this opinion it has been considered by the experts that the presence of enlarged photographs would be of greater assistance and if that is necessary for the Court, can it be said that they are not the documents which are required to be produced in the Court ? In the case of State (Delhi Administration) v. Pali Ram, reported in AIR 1979 SC 14 : (1979 Cri LJ 17), the Supreme Court has observed (at p. 25 of Cri LJ) : "It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not expert, may form its own judgement by its own observation of those materials...... Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or of fact, because, strictly speaking, such issues are for the Court or Jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings."

These observations clearly show that the expert has to put before the Court Page 56 of 106 HC-NIC Page 56 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT all the materials together with the reasons which induce him to come to the conclusion. What are those materials ? Can it be said that a mere piece of paper on which he has given the opinion and reasons for it, is the material, or the basic material on which he has based his opinion like the enlarged photographs ? If the expert has based his opinion on the strength of enlarged photographs, mere reproduction of the reasons would not be sufficient. The Court also would not be able to appreciate whether the expert has given proper opinion or not without referring to the enlarged photographs and finding out the points of similarity or dissimilarity, whatever they may be. So it is very clear that in order to appreciate the handwriting, enlarged photographs would be necessary and even if the prosecution does not produce them or merely says orally that they do not propose to rely on them, can it not be said that they are the documents on which the expert relied to come to the conclusion and therefore they are the documents on which the prosecution relies ?

14. It was submitted on behalf of the State that so far as the giving of copies is concerned, no principle of jurisprudence is involved. A faint reliance was placed on the judgement of the Supreme Court in Narayan Rao's case (supra). But that was a question of prejudice but there also the Supreme Court has observed that the documents are necessary for proper conduct of the defence of the accused. Here it is not the question of prejudice because the accused have come with a grievance at the initial stage. The trial has not concluded and therefore if at this stage the Court finds that it is necessary for the proper defence of the accused that the enlarged photographs should be supplied, then other questions of prejudice etc. would not arise. Reliance was placed on AIR 1966 Bom 253 : (1966 Cri LJ 1395) in the case of Bashir Hussain v. Gulam Mohomed Ismail, by the State to canvass a point that so far as giving of the copies is concerned, principle of jurisprudence is not involved. In the case before the Bombay High Court there was a question of supplying copies of the statements in a private complaint. So far as the Criminal Procedure Code is concerned, the copies of the statements and the documents on which the prosecution relies are to be supplied in a case filed on the police report. When that insistence was made, the Bombay High Court negatived it by observing that Section 173(4) applies only when investigation is made by a police officer and that too under Chapter XIV of the Code. It was further observed that S.173(4) is purely procedural and only directory. It does not also enact any fundamental principle of criminal jurisprudence as such and hence it cannot be argued that such copies should be made available to the accused on a principle analogous to the one contained in the Section. It was further observed that a warrant case instituted on a private complaint is governed by the procedure under Ss.252 to 259 and as these sections do not contain any provision similar to S.173(4) for furnishing such copies, the accused is not entitled to get such copies. These observations are made because there was insistence before the Court that Page 57 of 106 HC-NIC Page 57 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT even in a case where Chapter XIV does not apply and even if it is a case not based on the police report, on the analogy of S.173(4), the copies should be given. This was negatived. Not only that but in that case Mr. Jethamalani, the learned counsel who appeared for the defence, wanted to make the provisions all embracing by submitting that the prosecution must supply the copies of statements of all persons whom the prosecution did not propose to examine during the trial because that referred to the provisions which were not contained in the Code and still an analogy was being attempted to be applied. The Bombay High Court has observed that S.173(4) is purely procedural and it does not also enact any fundamental principle of criminal jurisprudence. But in the case before as Section 173(4) clearly applies. A fine distinction has been attempted to be made that if these principles (propounded by the Bombay High Court) are applied, then because under S.173(5)(a) the police is required to forward only those documents on which the prosecution proposes to rely and if under S.207(v) the Court has to give copy of any other document or relevant extract thereof forwarded to the Magistrate with the police report under SubSection (5) of S.173, then if the documents are not forwarded, the strict compliance would not require giving the copies of the enlarged photographs. But we feel that this is too technical an argument because we propose to consider "all documents on which the prosecution proposes to rely" in a broader amplitude with a view to appreciating the availability of the material to the accused for his proper defence. The basic principle of criminal jurisprudence is of fair trial. From the documents supplied to the accused by the prosecution there must be a guarantee of a fair trial inasmuch as the accused should be informed of all the materials on which the prosecution relies and also all the materials which are to be employed by the prosecution against the accused so that he can prepare his proper defence. In such a case the fundamental principle of criminal jurisprudence is certainly involved. But in spite of this judgement of the Bombay High Court in the case of Bashir Hussain (supra) which showed that in any case instituted on a private complaint not covered by Chapter XIV, the accused is not entitled to copies, the same Bombay High Court in the case of Govind Raghunath Sawant v. B.A. Kakade, reported in (1975) 77 Bom LR 214, considered that the copies should be given to the accused for the offences under the Railway Property (Unlawful Possession) Act, 1966. The judgement in Bashir Hussain's case (supra) is of a single Judge. Likewise the judgement in Govind Raghunath Sawant's case (supra) is also of a single Judge. In that case the accused applied for the copies of the statements of the witnesses and the application was rejected by the Presidency Magistrate on the ground that cases under the Railway Property (Unlawful Possession) Act, 1966 involved the procedure under S.252 of the Cr. P.C. and onwards and not under S.251A of the Criminal P.C. and hence copies of documents referred to under S.173(4) of the Cr. P.C. could not be claimed as of right by the accused. The Bombay High Court held that even though there may be no statutory or technical reason Why the prosecuting authority should suo motu supply copies to the Page 58 of 106 HC-NIC Page 58 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT accused or produce them in Court, yet, for protection and enforcement of fundamental right of defence under Art.22(1) of the Constitution of India and also on ground of ordinary principles of natural justice it is the moral and ethical duty of the prosecutor to at least produce before the Court the statements of the witness whom he wants to examine when the accused applies for such production. We must say that we are not considering this aspect on the moral and ethical duty. But we are considering it as the substantive right of the accused and trying to appreciate whether this particular demand of the accused is supported by the principles of criminal jurisprudence. The Bombay High Court considered the impact of Art.22(1) of the Constitution of India on the defence of an accused. The Bombay High Court considered that this is not merely a technical or formal matter or ritual matter; it has to be real. The defence of the accused must be backed by adequate instructions from the client, which can be taken only if the prosecuting machinery enables the defence counsel to know in advance what it has against the accused. This would be all the more applicable when the provisions permit the accused to have the copies of all the documents on which the prosecution proposes to rely. Art.22(1) of the Constitution provides that the accused shall not be denied the right to consult, and to be defended by a legal practitioner of his choice. The Bombay High Court in the above referred judgement in the case of Govind Raghunath Sawant (supra) observed that though in a particular case the mandatory provision of S.173(4) of the Cr. P.C. may not be applicable if the accused wants to defend himself with the assistance of counsel and even though the counsel feels it necessary to have statements of the witness for crossexamination under S.145 of the Evidence Act, the prosecution cannot withhold production of such statements in Court and the Court should not feel powerless and impotent to compel production of such statements. If in the case before the Bombay High Court where provisions of S.173(4) were not applicable and still the Bombay High Court considered it necessary from the broad aspect of considering the defence of the accused that the copy should be made available, there is all the more reason in the instant case to interpret S.173(5) and S.207(v) in a manner which would be advancing the cause of justice so far as the defence of the accused is concerned. So the above referred judgement of the Bombay High Court considered the impact of S.173(4) on a broader canvass and in a different tone from the one in which the decision in the case of Bashir Hussain (supra) was given. We for ourselves think that so far as the present dispute before us is concerned the requirement of documents on which the prosecution relies would also cover the enlarged photographs on the basis of which the examiner of questioned document of the State has based his opinion. This we consider from the point of view of the substantial assistance to the accused persons in their own defence.

In the case of Smt. Maneka Gandhi v. Union of India, reported in AIR 1978 SC 597, the Supreme Court, in paragraph 56, observed :

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HC-NIC Page 59 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT "The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Art.14 like a brooding omnipresence and the procedure contemplated by Art.21 must answer the test of reasonableness in order to be in conformity with Art.14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it should be no procedure at all and the requirement of Art.21 would not be satisfied."

Article 21 of the Constitution of India protects the life and personal liberty of an individual by providing that no person shall be deprived of his life or personal liberty except according to procedure established by law. So the importance of procedure established by law is also enshrined in Art.21 of the Constitution. The Criminal Procedure Code has provided for the procedure about a criminal trial having safeguards for the accused persons in their defence. After 1955 a step in advance was taken in facilitating the accused to formulate his defence properly by providing for giving of the copies of the documents on which the prosecution relied. This privilege given to the accused cannot be made redundant by refusing those documents, i.e., the enlarged photographs on which the ultimate finding of the document produced by the prosecution, i.e., the reasons of the expert, rests. If the opinion of the expert is based on the strength of observation of enlarged photograph, can it be said that the right given to the accused was protected by refusing a copy of it ? If the prosecution can have the same right, denial of that right to the accused would be making the provisions of Section 173(5) nugatory. In the case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick, reported in AIR 1981 SC 917, in para 22, the Supreme Court has observed that the Court has now widened the horizon of the concept of liberty, as contained in Art.21 so as to give the word 'procedure' a very wide connotation. Then the above referred passage from Maneka Gandhi's case (supra) was reproduced. In the case of Satyen Bhowmick (supra) the Supreme Court considered the provision of S.14 of the Official Secrets Act. It was observed that S.14 did not in any way deprive the valuable rights of the accused to get copies of the statements of witnesses recorded by the police or the documents obtained by the police during the investigation, etc. and while considering this aspect, the Supreme Court considered that if S.14 of the Official Secrets Act is considered to deprive the accused of getting any copies of the statement of witnesses, then it would be difficult to uphold the constitutional validity of Section 14, as the procedure would become extremely unreasonable, harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which will not be in consonance with the provisions of Art.21 of the Constitution. Of course, therein there was a case of providing copies to the accused tried under the particular Act but the provisions of the Criminal Procedure Code were made applicable and even in such a case the copies were considered essential.




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            R/SCR.A/778/2017                                                       JUDGMENT

15. In the case of Hussainara Khatoon v. Home Secy., State of Bihar, Patna, reported in AIR 1979 SC 1369 : (1979 Cri LJ 1045), the Supreme Court considered Art.39A of the Constitution. This was considered from the point of view of free legal service as an unalienable element of reasonable, fair and just procedure. Therein it has been observed that the right to free legal services is clearly an essential ingredient of 'reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantee of Art.21. It has been further observed that it is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required. Art.39A of the Constitution is in Part IV pertaining to Directive Principles of State Policy. The first line of Article 39A is very important. According to that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity,............ Thereafter there is the pronouncement about free legal aid by suitable legislation or schemes. But the first part of Art.39A clearly says that operation of the legal system must promote justice on a basis of equal opportunity. This is what we are endeavouring to emphasise. In the present case before us, prosecution has all the materials available to it to get the opinion of the handwriting expert on the strength of the enlarged photographs. If that is denied to the accused, can it be said that the operation of the legal system would promote justice on the basis of equal opportunity ? In order to follow Art.39A in its true spirit, the opportunity must be equal to the accused as well as to the prosecution and if provisions like S.173(5) require the police or the State to give copies of the material documents to the accused, the accused cannot avail that opportunity properly, if the basis on which the prosecution based the opinion of the handwriting expert would not be available to the accused.

As considered by the Supreme Court in the case of Hussainara Khatoon (supra) merely because an accused person cannot afford money, he should not be deprived of the opportunity for securing justice. The argument advanced by the State that the documents may be available to the accused for defence if he spends for getting the enlarged photographs can never be appreciated.

16. A faint attempt was made to strictly interpret the provisions of Section 173(5) by saying that it refers to documents, mainly statements recorded by the police and also documents on which the prosecution proposes to rely and therefore it would not cover the enlarged photographs on which the opinion was based. Under S.3 of the Evidence Act 'document' is defined and in the illustrations words printed, lithographed or photographed are considered as documents. Further under the provisions of S.62 of the Page 61 of 106 HC-NIC Page 61 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT Evidence Act, Explanation 2, where a number of documents are all made by one uniform process as in the case of............ photography, each is primary evidence of the contents of the rest. So if reliance is placed on the photograph, it would be primary evidence. It is not that only the negative of the photograph would be the primary evidence but if the reliance is placed on the positive, it is discernible to the eye and from that the opinion is given it also forms part of the evidence on which the prosecution can be said to rely. Mr. J.M. Panchal, the learned Public Prosecutor, wanted to make a fine distinction about the expert evidence on the strength of S.45 of the Evidence Act. According to him this provision makes the opinion upon the point of identity of handwriting given by the handwriting expert relevant and those persons who gave evidence are experts. It is therefore his submission that only the opinion given by the expert would be sufficient and that would be the relevant evidence and therefore there would not arise any question of the photographs on the strength on which he based his opinion. Technically the argument advanced by Mr. Panchal on the strength of S.45 of the Evidence Act would show that mere opinion given by the expert would be sufficient and if this argument is taken to its logical end, the reasons for arriving at the opinion also would not be considered necessary. But this stretching of S.45 is not proper because this Court in (1973) 14 Guj LR 807 in the case of Chimanlal Bhogilal Shah v. State of Gujarat, has observed that if the prosecution relies on the opinion of the handwriting expert, the accused is entitled to know in advance the reasons of the handwriting expert for giving such an opinion. If the accused is not supplied with the copy of the reasons, he would not be in a position to confront the Handwriting Expert properly at the time of the trial. Under S.46 of the Evidence Act, facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant. It cannot be gainsaid that the opinion of the expert is supported by his reasons which are based on examination of the enlarged photographs. Therefore, if the principles embodied in Chimanlal Bhogilal 'Shah's case (supra) are considered properly, then the accused cannot defend effectually without the basis on which the expert proposes to support his opinion or finding, meaning thereby, the photographs. So even this argument attempted to be advanced on behalf of the State would not be available. It was submitted on behalf of the State that this is too early a stage for the defence to make a grievance because the trial has not proceeded and it has not shown whether the accused has in any way been deprived of the opportunity to defend himself properly. On the contrary, this argument, if accepted, would create a hurdle in the way of defence because then after the trial the question of prejudice shall have to be examined while this is before the case proceeds any further and the accused wants the copies of the enlarged photographs just to get sufficient help for his defence from the opinion of the expert who would be in a position to help the accused if the enlarged photographs of the handwriting are available for his examination. Therefore it is the basic requirement according to the accused which will further his chance of Page 62 of 106 HC-NIC Page 62 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT defending himself properly and that is rightly submitted. So it is not that this is a very early stage. The question of prejudice quite often comes up in some cases where the person goes to the trial unmindful of the consequences of his carelessness or neglect in asserting his own right. Under the civil proceedings when a suit is filed on the strength of a plaint, the copy of the plaint is always required to be served to the defendant. If the advocate engaged by the defendant at the initial stages insists on the plaint he is entitled to it. But if without getting the copy he permits the whole suit to be prosecuted, if he attempts to defend the defendant in the case without a copy of the plaint and gets a decision, then it cannot lie in his mouth to say that the entire proceeding is vitiated because he was not given a copy of the plaint about which he never made a complaint. Here the grievance is made at the early stage and if that grievance is found to be justified inasmuch as the absence of the enlarged photographs would deprive the accused of making out a proper ground for his defence for obtaining the expert advice which has been available to the prosecution, then it will not be in consonance with the criminal jurisprudence which insists on equal opportunity both to the accused as well as the prosecution.

17. In view of the decisions quoted above, we feel that it should not be the prosecution alone who should have the benefit of scientific method and we feel that the accused also must have that benefit and in order to have that benefit and to give him fair opportunity of defending himself, we consider that the enlarged photographs are a must and we also consider that because the State handwriting expert has based his opinion and the reasons for his conclusion after perusing the enlarged photographs and also that because the enlarged photographs will be necessary to aid the accused and also the Court for coming to the proper conclusion about the handwriting, those enlarged photographs can be said to be the documents on which the prosecution proposes to rely and therefore we think that those documents must be available to the accused before the State handwriting expert steps into the witness box or at least to be available to the accused free of cost during the trial to get help from his expert. We are conscious that the duty of giving copies to the accused is now on the Court and a time may come when the Court will be required to give copies but the Court will be doing it with the assistance of the State and the State should never consider the question of expenses while affording an opportunity to the accused to defend himself properly. We are observing this mainly because at some stage during the trial in the lower Court it was stated that the enlarged photographs would cost as much as Rs. 2,000 and the State would be required to spend for that. This can never be a consideration before a Court when the question of sufficient opportunity to the accused to defend himself is involved. Nor should the Court deter from coming to a judicious conclusion on the point of dispute merely because the agency of the Court would be required to supply those copies. The entire endeavour shall have to be made by the State to facilitate the Page 63 of 106 HC-NIC Page 63 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT observance of the procedure enacted by the Criminal Procedure Code with its proper interpretation made by the Courts from time to time."

44 In Chimanlal Bhogilal (supra), a learned Single Judge of this Court took the view considering subclause (3) of subsection 207A of the old Code that unless the copy of the reasons is supplied to the accused, the accused would not be in a position to controvert the opinion by the handwriting expert. The Court observed as under:

"Thus, it is obligatory on the learned Magistrate in the inquiry before him to see that the copies of all the documents mentioned in Section 173 are supplied to the accused before the inquiry begins. The learned Magistrate, therefore, is not right in stating that his was an inquiring Court and he has merely to commit the case. The learned Magistrate should remember that a committing Court is not a mere post office and it is the right of the prosecution to examine the witnesses and it would be open to the accused to crossexamine them. It would be even open to the accused to urge from the perusal of the documents that it is not a fit case to be committed to the Sessions Court. Unless, therefore, the copies of the documents which are going to be relied upon by the prosecution, are supplied to the accused, he would not be in a position to urge before the Court whether it is a fit case to be committed before the Sessions Court or not. In the instant case, the prosecution relies on the opinion of the Handwriting expert. In fact, the whole case apparently hinges on the opinion of the Handwriting expert. The accused therefore is entitled to know in advance the reasons of the Handwriting expert for giving such an opinion. If the accused is not supplied with the copy of the reasons, he would not be in a position to confront the Handwriting expert properly at the time of the trial. Similarly, it would be necessary for the accused to know as to which documents were relied upon by the Handwriting expert for arriving at such opinion. The accused, is therefore right in praying that a copy of the forwarding letter sent by the police to the Handwriting expert mentioning all the particulars of the documents enclosed therewith and the copy of the reasons of the Handwriting expert for the said opinion be supplied to him. The learned Magistrate, therefore, was not right in refusing the request of the accused. In fact, as observed earlier, it is the duty of the Committing Court to see that copies of all such documents are supplied to the accused before the inquiry begins."

45 In Pramod Kumar Sharma (supra), a learned Single Judge of the Page 64 of 106 HC-NIC Page 64 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT Allahabad High Court took the view that Section 207 of the Code is mandatory and its noncompliance may result in causing prejudice to the accused. The Court observed as under:

"8. In view of the provisions of section 238 of the Code, it was obligatory on the part of the learned Magistrate to satisfy himself regarding compliance of section 207 of the Code as and when the accused appeared before him at the commencement of the trial and he should have done so before proceeding further in the trial. Without ensuring compliance of section 207 of the Code, framing of the charges under section 239 of the Code was not proper.

9. It may not be out of context to mention that a prayer for discharge is liable to be considered in accordance with section 239 of the Code. At that stage, the Magistrate has to consider the police report and the documents sent with it under section 173 of the Code. The Magistrate may even examine the accused. After doing all these formalities the Magistrate has to provide the prosecution and accused an opportunity of hearing before any order under section 239 of the Code is passed. If after considering the police report and the documents sent with it under section 173 of the Code and after hearing the prosecution and the accused the Magistrate considers the charge or charges against the accused to be groundless, he shall, in that event, discharge the accused with a reasoned order. In case the Magistrate does not consider it proper to discharge the accused and is of the opinion that there is ground for presuming that the accused has committed the offence and could be adequately punished, the Magistrate may frame charge or charges against the accused, as per the provisions of section 240 of the Code.

10. Therefore before framing of the charge or charges against the accused compliance of section 207 of the Code is mandatory and its non compliance may result in causing prejudice to the accused. The purpose behind furnishing of documents and statements of witnesses to the accused at the commencement of the trial is to provide an opportunity to the accused to know the evidence and the materials being relied on in support of the charges and to meet those evidence and statements and set up a proper defence. In the case of noncompliance of section 207 of the Code, the accused may not be able to defend the charges or to contend that no charge is made out against him. In this view of the matter, the provisions of section 238 of the Code seem to be mandatory in nature. However, there may be a departure in a case where the statements of the witnesses or the documents submitted in support of the chargesheet are voluminous and preparation of copies thereof is not practicable. In that situation the accused may be permitted to inspect the record."

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HC-NIC Page 65 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 46 Before the Full Bench of the Punjab and Haryana High Court in the case of State of Haryana vs. Mehal Singh [1978 Cri. L.J. 1810], a question fell for consideration whether the investigation of an offence would be considered complete in terms of Section 173(2) of the Cr.P.C. if the Investigating Officer had not received the reports of the experts as the Chemical Examiner, the Serologist, the Ballistic Expert or the Fingerprint Expert, etc. whose reports are made admissible in law under Section 293 of the Code. After an exhaustive consideration of the various provisions of the Code, the Full Bench answered the question as under:

"9. It is Cl.(b) of subsec. (1) of S.190 of the Code, which envisages the taking of cognizance of an offence by the Magistrate on a police report. The expression 'police report' is defined by S.2 (r) of the Code as follows:

"2. In this Code, unless the context otherwise requires * * * * *

(r) 'police report' means a report forwarded by a police officer to a Magistrate under subsec. (2) of S.173."

The definition of the 'police report' noticed above identifies that report to be a 'police report' which is forwarded by the police officer to a Magistrate under subsec. (2) of S.173.

10. The stand taken on behalf of the accusedpetitioners is that a report shall be a 'police report' in terms of S.173 (2) of the Code only if it is accompanied by sueh documents and statements as are referred to in sub sec. (5) of S.173 of the Code. This argument is sought to be sustained with the decision of the Delhi High Court in Hari Chand's case (1977 Cri LJ NOC 262) (supra) and a Division Bench decision of the Patna High Court reported in Suresh Singh v. The State, 1978 Cri LJ NOC 58 p. 30, besides that of A. D. Koshal, A. C. J. (as my Lord the Chief Justice then was) in Kanahiya's case (Cri. Misc. No. 2287M of 1976, D/1251976) (Punj) (supra).

11. Before proceeding to consider the import of various provisions bearing upon the question, I may at the outset deal with the aforesaid three decisions that have been relied upon on behalf of the accused persons.

12. In Kanahiya's case (supra), no reasons for the conclusion are given.



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13. In the two decisions one of the Delhi High Court and the other of the Patna High Court the learned Judges had proceeded on the assumption that the police report, which in police parlance is called 'challan', was admittedly incomplete. As to why the challan was incomplete has not been mentioned. Obviously, the Code does not envisage any interim report, but what it envisages is a 'police report' which may enable a Magistrate to take cognizance of the offence. The learned Judges, without going into the question as to why the police challan was termed to be an incomplete challan, assumed that the investigation of the case could not have been completed as the police report was incomplete. There cannot be any doubt that what is sought to be described as a 'police report' is not a 'police report', for a police report can be submitted only on the completion of the investigation, but then it is far from saying that even if a report after the completion of the investigation is submitted to the Magistrate, that would not be considered a 'police report' if the same did not include such statements and documents as are referred to in subsec. (5) of S.173 of the Code.

14. Subsection (5) of S.173 of the Code, in terms, itself envisages a report to be a 'police report' without the statements and documents referred to therein. It only envisages that if the report is in respect of a case, to which S.170 of the Code applies, then a duty is cast on the police officer to tag with his report the statements and documents referred to in subsec. (5) of S.173.

15. Since a report to qualify itself to be a 'police report' is required to contain only such facts as are mentioned in subsec. (2) of S.173, so if once it is found that the police report contained all those facts, then so far as the investigation is concerned the same has to be considered to have been completed. For this view, we receive authoritative backing from the decision of the Supreme Court in Tara Singh v. The State, AIR 1951 SC

441. That was a case in which the accused was arrested on September 30, on the very day of occurrence, he was produced before a Magistrate. On October 1, the police was granted police remand till October 2. The accused was produced on October 3 before the Magistrate, on which date the police handed over to the Magistrate what they called an 'incomplete challan' dated October 2, 1949, and also produced certain prosecution witnesses. Among the witnesses so produced were witnesses who were said to have witnessed the occurrence. The Magistrate examined those witnesses and recorded their statements, although the accused at that time was not represented by a counsel. On October 5 the police put in what they called a 'complete challan' and on the 19th they put in a supplementary challan. The Magistrate committed the accused for trial on November 12, 1949.

15A. It was argued in the first instance on behalf of the accused that the Magistrate on October 3 had no power to take cognizance of the case. It Page 67 of 106 HC-NIC Page 67 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT was contended that cognizance of an offence could only be taken on a police report of the kind envisaged in Cl.(b) of subsection (1) of S.190 of the old Code. It was urged, on the strength of the provisions of Sec. 173 (1) of the old Code, which is in the following terms and which is also pari materia with the provisions of subsec. (2) of S.173 of the new Code, that the police were not permitted to send in an incomplete report:

"173. (1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer in charge of the police station shall

(a) 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, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) 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."

Vivian Bose, J., who delivered the opinion for the Bench, without going into the question as to whether the police were entitled to submit an incomplete report or not, held that the report dated October 2, 1949, which the police referred to as an 'incomplete challan', was, in fact, a complete report within the meaning of S.190 (1) (b) read with S.173 (1) of the old Code. The following observations of his Lordship are instructive on the point (at p. 442):

"When the police drew up their challan of 2101949 and submitted it to the Court on the 3rd, they had in fact completed their investigation except for the report of the Imperial Serologist and drawing of a sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore, the mere fact that a second challan was put in on 5th October would not necessarily vitiate the first. All that S.173 (1) (a) requires is that as soon as the police investigation under Chap. 14 of the Code is complete, there should be forwarded to the Magistrate a report in the prescribed form:

'Setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case.' All that appears to have been done in the report of 2nd October which the Page 68 of 106 HC-NIC Page 68 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT police called their incomplete challan. The witnesses named in the second challan of 5th October were not witnesses who were 'acquainted with the circumstances of the case'. They were merely formal witnesses on other matters. So also in the supplementary challan of the 19th. The witnesses named are the 1st Class Magistrate, Amritsar, who recorded the dying declaration, and the Assistant Civil Surgeon. They are not witnesses who were 'acquainted with the circumstances of the case'. Accordingly, the Challan which the police called an incomplete challan was in fact a completed report of the kind which S.173 (1) of the Code contemplates. There is no force in this argument, and we hold that the Magistrate took proper cognizance of the matter."

The learned counsel for the accusedpetitioners, however, contended that in the old Code the provisions, like the one contained in subsec. (5) of S.173 of the new Code, were not there and, therefore, the authority of the Supreme Court decision in Tara Singh's case (supra) would not be applicable in the context of the changed situation brought about by the incorporation in the new Code of subSec. (5) of S.173 thereof. The learned counsel for the accusedpetitioners laid emphasis on the fact that the investigation in terms of the definition thereof shall not be considered complete unless the police had collected all the evidence and formed their opinion thereon and since in cases, where the expert's report was awaited, obviously it could not be said that all evidence had been collected, nor in its absence the investigating officer would be in a position to form an opinion. In order to show that the aforesaid steps are the necessary ingredients of the investigation, reliance has been placed on the following observations of Jagannadhadas, J., who delivered the judgment for the Bench in H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 (at p.

201):

"If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefor under S.170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under S.173 of the Code in the prescribed form furnishing various details.

Thus, under the Code investigation consists generally of the following steps; (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the Page 69 of 106 HC-NIC Page 69 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT reduction of their statements into writing, if the officer thinks fit,

(b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet under S.173."

It is no doubt true that the definition of 'investigation' in terms conceives within its scope the collection of the evidence and formation of the opinion by the investigating officer, but the question arises as to what do we mean by the 'collection of evidence and formation of opinion thereon'. Does the collection of evidence necessarily envisage that the investigating officer must record the statements of the witnesses who are to be cited to prove the prosecution case or must the investigating officer receive the reports of the experts which reports are admissible in evidence by virtue of S.293 of the old Code ? It has been authoritatively held at the highest judicial level in Noor Khan v. State of Rajasthan, AIR 1964 SC 286, that subsec. (3) of S.161 does not oblige the police officer to reduce in writing the statements of witnesses examined by him in the course of investigation. In this regard, the following observations can be noticed with advantage (at p. 291):

"The object of Ss.162, 173 (4) and 207A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigating officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for crossexamining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Sec. 161 (3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved ... ... ...".

From the above observations of their Lordships of the Supreme Court, it is clearly deducible that it is not incumbent on the investigating officer to reduce in writing the statements of the witnesses he may merely include their names in the list of witnesses in support of the prosecution case when submitting the chargesheet. Surely, if the chargesheet thus submitted would be complete as enabling the Magistrate to take cognizance of the offence, there is no rational basis for holding that similar chargesheet would not be a police report of the requisite kind if the statements of the Page 70 of 106 HC-NIC Page 70 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT witnesses although had been recorded under S.161 (3), but either by design or by inadvertence are not appended with the report and that the investigation of the case for that reason alone would be considered to be incomplete thus entitling the accused to claim release on bail in view of the proviso to subsec. (2) of S.167 of the Code if his detention had exceeded sixty days.

16. In view of the above conclusion, the accused would be on still a weaker ground in canvassing that the report, which did not include the report of the experts, such as Chemical Analyst, Serolegist, Ballistic Expert, Finger Print Expert etc., would not be a complete police report as envisaged in subsec. (2) of S.173 of the Code which in terms is prepared and submitted only after the completion of the investigation.

16A. So far as the investigation part of the job of the investigating officer is concerned, it is in our opinion complete the moment he had collected all evidence and facts that are detailed in subsec. (2) of S.173 of the Code and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused. And, further even if the investigating officer had not received the report of the expert, so far as his job of collecting of the evidence is concerned, that is over the moment he despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony.

17. In the new Code the incorporation of subsec. (5) in S.173 of the Code has in no manner changed or affected the content or concept of the 'police report' envisaged in the unamended Code in subsec. (1) of S.173 and, therefore, the ratio of Tara Singh's case (AIR 1951 SC 441) (supra) applies to the facts of the present case with full force. The incorporation of subsec. (5) of S.173 of the amended Code was necessitated by the fact that under S.207 of the amended Code a duty was cast additionally on the Magistrate to make available to the accused free of cost copies of the 'police report' and, inter alia, the documents and statements referred to in sub sec. (5) of S.173 of the Code. In the unamended Code subsec. (4) of S.173 cast that duty on the police. The object of such provisions, whether the duty is cast on the police or on the Magistrate, is merely to see that the accused has in his hand the copies of statements and documents which were going to be produced or referred to in evidence against him so that he can offer whatever explanation or defence that he has to the incriminating material against him. If such statements and documents that are referred to in subsec. (5) of S.173 of the Code are not appended to the 'police report', the result would be that at a later stage if they are sought to be produced, then apart from the fact that copies of such statements and documents shall have to be made available to the accused, it would be purely in the discretion of the Magistrate whether to allow such documents and statements to be produced or not and the prosecution cannot, as a matter of right, have them placed on the record. About this aspect a little Page 71 of 106 HC-NIC Page 71 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT more at an appropriate place in the later part of the judgment.

18. The object of the proviso to subsec. (2) of S.167 was merely to ensure that an accused is not kept under detention during the investigation more than sixty days and that on the expiry of the said period if the investigation is not completed and the enquiry or the trial, as the case may be, against the accused is not initiated, then the accused is to be released on bail by the Magistrate, as after sixty days the Magistrate would have no jurisdiction to remand him to the judicial custody during investigation. In other words, it can be said that if the Magistrate cannot legally take cognizance of the offence after the expiry of the period of sixty days, he has no option but to order the release of the accused; but where the Magistrate can legally take cognizance of the offence and start with the enquiry or the trial, then he acquires jurisdiction to detain the accused as an undertrial to face the enquiry or the trial if it is considered necessary, and the accused can be remanded to judicial custody in accordance with the provisions of S.309 of the Code which is in the following terms:

"309. (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody :

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.

Explanation 1. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

Explanation 2. The terms on which an adjournment or Page 72 of 106 HC-NIC Page 72 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."

19. It would be thereafter at the discretion of the Court whether to permit the prosecutor to adduce in evidence the reports of the experts of the kind. If the Court permits the prosecutor to do so, then a copy thereof shall have to be furnished to the accused. The Court, under S.91 of the Code (which is reproduced below) has to determine whether to call or not for a document from a witness on the application of the police officer :

"91. (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 Ss.1'23 and 124 of the Indian Evidence Act, 1872, or the Banker's Books Act, 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."

And the provisions of S.91 of the Code further envisage that such a person need not appear before the Court in person he may send the document directly to the Court through some other person. The Court has also the power under S.311 of the Code to permit production of the additional evidence if it is considered in the interest of justice. However, in the exercise of its discretion, the Court has always to balance the interest of the accused in that he should not remain incarcerated for unduly long period as the concern on the part of the legislature to spare him from unduly delayed incarceration is apparent from the provisions of the proviso to subsec. (2) of S.167 of the Code. However, the interest of justice has always to be kept in view and no prosecution evidence, which have a vital bearing on the case, should be shut out."





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         47    In  Velinedipurnam vs. State [1994 Cri. L.J. 2579],  the Division

Bench of the Andra Pradesh High Court had an occasion to consider a question whether nonfiling of all enclosures under Section 173(5) along with the report filed under Section 173(2) could be a ground to release the accused on bail on the ground that full chargesheet was not filed within the stipulated time. Answering the question in the negative, the Division Bench observed as under:

"4. In the light of the above discussion, it is necessary to consider the scope and the ambit of S. 173. No doubt, subsec. (1) of S. 173 mandates that investigation under this Chapter shall be completed without unnecessary delay. Subsection (2) gives certain guidelines as to what information the police report should contain. Subsection (5) further elaborates that the police report should also contain all documents or relevant extracts on which the prosecution proposes to rely upon and also the statements recorded under S. 161 of all the persons. The police report contemplated under S. 173(2) has to be filed after completion of the investigation. So, the crucial test is completion of investigation preceding filing of the police report. No doubt, several details of information which are necessary to be disclosed in the police report shall also be indicated under subsec. (2) of S. 173. The main thrust of the Parliament in amending S. 167 seems to be to avoid undue delay in investigation of offences by the police officers and to ameliorate the plight of the accused in custody for unlimited period. Therefore, S. 167 is a step in the right direction to control long pending investigations and to pin down completion of investigation with speed and promptness. Section 173 is also complementary to S. 167. Even subsec.

(1) of Section 173 directs that every investigation shall be completed with promptness and without unnecessary delay. This is in conformity with the constitutional directives under Arts. 21 and 22 securing personal liberty and protecting against arrest and detention without prompt intimation to the nearest Magistrate. Therefore, the whole idea seems to be that the investigation should be completed within the prescribed period and the chargesheet is filed in time. As already noticed investigation as defined under S. 2(h) means collection of evidence by the police officer and when this is done investigation is complete. The guidelines as to what a charge sheet should contain cannot be said to be mandatory in nature.

Substantial compliance of the directives is enough and if the police report or chargesheet contains necessary details so as to enable the Magistrate to take cognizance of the offence and proceed further, it cannot be said that there is failure of compliance of this section. If the police report is filed in time with certain omissions which are of trivial in nature or minor particulars or inadvertent omissions, it cannot be said that the police report is not filed in accordance with S. 173(2) of the Code. Subsection Page 74 of 106 HC-NIC Page 74 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT (8) lends support to the above view of ours which is extracted hereunder :

"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsec. (2) has been forwarded to the Magistrate and, whereupon 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 subsecs. (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 subsec. (2)".

So, what has to be looked into at this stage by the Magistrate is only to see whether any offence was disclosed in the police report and whether the names of the accused, witnesses etc., are furnished. If the names of the accused and the nature of the offence is not disclosed, or cannot be culled out on a reading of the police report, then perhaps it may be a case of non compliance of the provisions of S. 173 (2) of the Code. But, where it is fairly made clear about the names of the accused, the offence involved in the case together with similar other necessary details, even if there are some omissions in some minor particulars like the age of the accused, father's name etc., it cannot be said that there is failure of compliance with S. 173(2). For this view of ours, reliance can be placed on a decision of the Supreme Court reported in Satya Narain v. State of Bihar, AIR 1980 SC 506 : 1980 Cri LJ 277, wherein the Supreme Court observing that if the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence it would be sufficient compliance, stated as follows : "Turning now to the chargesheet submitted in this case it sets out all the details as required by S. 173(2) of the Code. The name of the accused is mentioned. The nature of the offence is mentioned. It is further stated that the information of the offence was given by Mahesh Kant Jha. It is also stated that there was sufficient evidence to proceed against Satya Narain Musadi appellant herein under S. 7 of the Act. May be that the chargesheet could have been more informative or the information set out in the chargesheet could be styled as scanty. Some more details may have been helpful. It, however, could not be said that it did not disclose an offence of which the Magistrate could take cognizance under Sec. 190(1)(b). Ultimately when a Magistrate looks at police report also styled as chargesheet under S. 190(1)(b) he takes cognizance of an offence upon a police report and prima facie he does so of the offence or offences set out in the report (Vide Darshan Singh Ram Kishan v. State of Maharashtra, (1972) 1 SCR 571 at p. 574 : 1971 Cri LJ 1697. And the report under discussion does disclose an offence under S. 7 of the Act".




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If all the necessary details as contemplated under S. 173(2), Cr. P.C. are not disclosed in the police report in the first instance, but they are furnished at a later date, perhaps it is for the Court to consider the probative value of those details furnished later during the trial of the case, but to say that the police report filed with certain omissions or gaps is not a valid report contemplated under S. 173(2) is reading something more into the section. Consequently we hold that nonfiling of all the enclosures under S. 173(5) along with the report filed under S. 173(2) is not a ground to release the accused on the premise that full chargesheet is not filed within the stipulated time."

48 In the case of Bhole alias Bholesh vs. The State of M.P. [1993 Cri. L.J. 2821], a learned Single Judge of the Madras High Court considered the purport of the words "without delay" in Section 207 of the Code. The learned Single Judge observed as under:

"7. Reliance was also placed by the petitioner on Section 207, Cr. P.C. which reads as below :

"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 documents mentioned therein."

The expression "without delay" means "without reasonable delay". The provisions of Section 173, Cr. P.C. will also help in deciding the point in controversy Section 173(1) reads. Every investigation under this Chapter shall be completed without unnecessary delay. SubSection (2) says that as soon as it is completed. The officerincharge 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. SubSection (7) of Section 173 says 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 SubSection (5). This Sub Section also, therefore, does not support the contention of the petitioner that the papers be supplied forthwith. The SubSection has used the words "finds it convenient so to do". It is also significant to note that the occasion for providing papers does not arise till the stage of S. 167, Cr. P.C. It prescribes only the period of investigation. The provision for supply of papers is contained in Section 173. If the investigation is not completed within a period of 90 days then the detention becomes illegal. This is not a Page 76 of 106 HC-NIC Page 76 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT case wherein papers have not been provided within a period of 90 days. Section 207, Cr. P.C. also helps us in arriving at a correct decision. It says in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of costs. a copy of each of the following :

(i) the police report;

(ii) the first information report recorded u/S. 154;

(iii) the statements, recorded under SubSection (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 SubSection (6) of Section 173;

(iv) the confessions and statements, if any, recorded u/S. 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under SubSection (5) of Section 173."

"10. Term "without delay" in Section 207, Cr. P.C. does not mean either immediately or forthwith because these terms are quite distinct and distinguishable. Even the term "forthwith" which is preemptory and carries much force, has been interpreted by Supreme Court as being done without avoidable and explicable delay. If the delay is explained then that is all AIR 1957 SC 28 : (1957 Cri LJ 10). Term "without delay" naturally carries lesser speed than the term "forthwith" and so has to be understood accordingly. Duty is cast upon the Magistrate u/S. 207, Cr. P.C. to furnish copies of documents to the accused free of cost. The Magistrate has to ensure this before he proceeds to commit the accused to Sessions. If the copies are not supplied the Magistrate should adjourn the hearing, get the copies prepared and supplied. Naturally, the upper limit for supplying the copies of the documents to the accused is till before the Committal or before trial. (1983) 2 SCC 372 (SC), 1985 (1) Crimes 227 (MP). The word "shall" occurring in Section 173 and Section 207, Cr. P.C. is not mandatory but only directory, AIR 1957 SC 737 : (1957 Cri LJ 1320). Therefore, noncompliance of these provisions has not the result of vitiating the trial.

11. In AIR 1957 SC 737 : (1957 Cri LJ 1320), in the case of Narayan Rao v. State of Andhra Pradesh, while interpreting Sections 173(4), 207A(3) and 537 of the Code of Criminal Procedure it has been held that the provisions of Section 173(4) and Section 207A(3) are not mandatory. It was held that at page 1323 : "In order to simplify commitment proceedings preceding the trial of accused persons by a Court of Session, S. 207A was added by way of amendment of the Code in 1955. From subss. (3) and (4) of that Section it is clear that in cases exclusively triable by a Court of Session, it is the duty of the Magistrate while holding a preliminary Page 77 of 106 HC-NIC Page 77 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT inquiry, to satisfy himself that the documents referred in S. 173 have been furnished to the accused and if he found that the police officer concerned had not carried out his duty in that behalf, the Magistrate should see to it that it is done."

"The provisions contained in S. 173(4) and S. 207A(3) have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading up to a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the informations for the proper conduct of their defence are furnished."

"But noncompliance with those provisions has not the result of vitiating those proceedings and subsequent trial. The word "shall"

occurring both in subs. (4) of S. 173 and subs. (3) of S. 207A, is not mandatory but only directory because an omission by a police officer to fully comply with the provisions of S. 173, should not be allowed to have such a far reaching effect as to render the proceedings including the trial before the Court of Session, wholly ineffective. However if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended has caused prejudice to the accused in the interest of justice, the Court may reopen the proceedings by insisting upon full compliance with the provisions of the Code."

49 In Taj Singh vs. State (Delhi Admn.) [1988 Cri. L.J. 1634], a Division Bench of the Delhi High Court considered the question whether a challan submitted without the report of the Central Forensic Laboratory would be an incomplete challan in terms of Section 173(2) of the Cr.P.C. The Division Bench observed as under:

"5. We shall have to examine the definitions of the terms "investigation"

and "police report" as given in subsections (h) and (r) respectively of S. 2 of the Code and these definitions are reproduced below : "(h) "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;



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(r) "police report" means a report forwarded by a police officer to a Magistrate under subsection (2) of Section 173,"

The challan and the police report are one and the same thing and so the filing of the challan by a police officer is the same thing as the forwarding of the police report to a Magistrate empowered to take cognizance of the offence on a police report. As the definition of "police report" has an intimate reference to subsection (2) of S. 173 of the Code this provision of law must be reproduced fully and it is set out as under : "S. 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 offence 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, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170.

(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.

Page 79 of 106

HC-NIC Page 79 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT (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 statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(7) Where the police officer investigating the case finds it convenient to do so, he may furnish to the accused copies of all or any of the documents referred to in subsection (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 subsections (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 subsection (2)."

6. Reading together subsections (1) and (2) of S. 173 of the Code the stage and the point of time at which the police report or the challan is to be filed before a Magistrate by the police officer is clearly made out in the sense that the police report or the challan is to be filed before a Magistrate as soon as the investigation of the offence is concluded. Subsection (2)(i)

(a) to (g) of S. 173 further details the requirements by way of particulars to be mentioned in police report. It would, thus, mean that when a police officer is able to complete his report by filling up therein the above mentioned particulars as required under subsection (2)(i)(a) to (g), the investigation of the offence can be said to be complete because if the investigation is not complete he would not be able to make his report with the aforesaid requisite particulars, and so that supplies to us the acid test for determining whether the investigation of the offence is complete or not. The relevant requirements would be the ones contemplated in Clauses (c) Page 80 of 106 HC-NIC Page 80 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT and (d) of Subsection (2)(i) of Sec. 173 which pertain to the names of the persons who appear to be acquainted with the circumstances of the case and whether any offence appears to have been committed and, if so, by whom. When the Investigating Officer is ready with these requirements, the other requirements being not very difficult to know, the police report is complete as per its definition given in S. 2(r) as per subsection (2) of S. 173 of the Code. The persons contemplated in Clause (c) of subsection (2)

(i) of S. 173 appear to be the witnesses of the occurrence or who are otherwise in the know of the facts of the case but do not appear to include an expert of CFSL or any other Government Scientific Expert mentioned in subsec. (4) of Section 293 of the Code whose reports have been made admissible under S. 293 by tendering the same in evidence without any formal proof thereof. The following are the Government Scientific Experts mentioned in subs. (4) of S. 293 : "(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of Explosives;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government."

7. Even if the Investigating Officer had not received the report of the CFSL, so far as his job of collecting the evidence is concerned, that is over the moment he collects the material exhibits and despatches the same for the opinion of the CFSL and this position remains unaltered even though he relies upon the CFSL report in his own report. In this view of the matter it will not be correct to say that the police report which did not include the CFSL report, would not be a complete police report as envisaged in subsec. (2) of S. 173 of the Code which is prepared and forwarded to the Magistrate only after the conclusion of the investigation.

8. For this view we find complete support from the Full Bench decision of the Punjab and Haryana High Court reported as State of Haryana v. Mehal Singh. AIR 1978 Punj and Har 341 at p. 347 : (1978 Cri LJ 1810 at p. 1816). No authority to the contrary was available nor cited by the learned counsel for the petitioner and whatever authorities were relied upon by the learned counsel for the petitioner had not decided this question. The authorities relied upon by him are Noor Mohd. v. State ILR, (1978) 2 Delhi 442 : (1980 Cri LJ NOC 27), Raghubir Singh v. State of Bihar 1987 Cri LJ 157 : (AIR 1987 SC 149), Natabar Parida v. State of Orissa, AIR 1975 SC 1465 : (1975 Cri LJ 1212), and Hari Page 81 of 106 HC-NIC Page 81 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT Chand v. State ILR (1977) 2 Delhi 367 : (1977 Cri LJ NOC 262). Much stress was, however, laid by the learned counsel for the petitioner on the last mentioned authority but the perusal thereof shows that even though there was mention of 'incomplete Challan' filed in the court, it was not pointed out in terms as to what was actually lacking therein and so even this authority is of no help in determining the question before us.

9. Then the learned counsel for the petitioner tried to seek assistance from the provision of law contained in subsection (5) of S. 173 of the Code and contended that it was obligatory upon the Investigating Officer to forward to the Magistrate along with the police report the opinion of CFSL as the prosecution proposed to rely upon the same and consequently this omission made the challan incomplete when it was forwarded to the Magistrate to take cognizance of the offence. It may be necessary to reproduce subs. (5) of S. 173 of the Code and the same is set out below : "(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."

10. This contention does not appear to be correct for the reason that sub section (5) of S. 173 appears to cast on the investigating officer only an additional duty of sending along with the report documents or extracts thereof on which the prosecution proposes to rely, and this additional duty cannot be construed as in any manner prejudicing the police report envisaged in subsec. (2) of S. 173, and this additional duty appears to have been necessitated to enable the Magistrate taking cognizance of the case to comply with the mandatory provision of law contained in S. 207 of the Code for the purpose of furnishing to the accused, free of cost a copy of such document. It would be instructive to set out S. 207 which reads as follows : "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 subs. (3) of Section 161 of all persons whom the prosecution proposes to examine as its witness, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under subsection (6) Page 82 of 106 HC-NIC Page 82 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 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 subsec. (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."

11. The rigour of the contention raised by the learned counsel for the petitioner on the basis of subsection (5) of S. 173 of the Code stands substantially impaired in the face of subsection (7) of Section 173 which is reproduced below : "Where the police officer investigating the case finds it convenient to do so, he may furnish to the accused copies of all or any of the documents referred to in subsection (5)."

12. The convenience of the Investigating Officer referred to in this provision of law pertaining to the furnishing of all or any of the documents to the accused whittles down the mandatory nature of subsec.

(5) of S. 173 of the Code and for that reason the contention of the learned counsel for the petitioner referred to above loses force."

50 What is discernible from the caselaw discussed above is as under:

[1] Section 173(5) of the Cr.P.C. is not mandatory in the sense that as there is no specific prohibition, it cannot be held that the additional document cannot be produced even in the course of the trial while the evidence is being recorded of the prosecution witnesses.





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         [2]      If the prosecution, for any good reason, has thought fit not

to provide certain documents to the accused at the stage of framing of the charge or there is some omission on its end in this regard, then such document can always be relied upon in the course of the trial and can be produced subsequently.

[3] In contradistinction to the provisions of Section 173 of the Code, where the legislature has used the expression "documents on which the prosecution relies upon" are not used under Section 207 of the Code. In such circumstances, the provisions of Section 207 of the Code will have to be given a liberal and relevant meaning so as to achieve its object.

[4] Section 173(7) of Cr.P.C. gives a discretion to the police officer to provide copies of all or any of the documents (including statements of witnesses) to the accused, if he finds it convenient.

[5] However, under Section 207 of Cr.P.C., it is mandatory for the court to provide copies of the investigation papers.

[6] Though the legal provision laid down as above, in actual practice, it is the police officer who provides copies of the papers of the investigation to accused persons after filing of the charge sheet.

[7] As per Section 173(5) of Cr.P.C., the police officer is required to send to the court only those documents on which the prosecution proposes to rely and only those statements of witnesses whom the prosecution proposes to examine. Moreover, under Section 173(6) of Cr.P.C., the police officer can request the court to exclude certain statements or their parts from the copies Page 84 of 106 HC-NIC Page 84 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT to be given to the accused person by the court, for the reasons mentioned in that section.

[8] Section 207 of Cr.P.C. describes copies of what documents or statements have to be given to the accused persons. Basically, these include the chargesheet, the F.I.R., statements of witnesses, confessions and other documents of investigation on which the prosecution proposes to rely. While giving the documents to the accused, the court may not give copies of those statements for which the police officer has made a request under above mentioned Section 173(6); however, the court may decide to give copies of such statements also if it considers necessary.

[9] Section 207 of Cr.P.C. further provides that if a particular document is very voluminous, the court may allow only inspection of the document instead of giving copy thereof to the accused person.

[10] 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 entitled to under the scheme contemplated by the Code of Criminal Procedure.

[11] 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 the documents/statements to the accused in accordance with law. The accused has a statutory right of confronting the witnesses with the statements recorded under Sections 161 and 164 of the Code. The accused has statutory right of confronting the expert witnesses too with their opinions.



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         [12]            The   words   "all   documents   or   relevant   extracts

thereof, on which the prosecution proposes to rely" will cover not only the opinion, but also the ground or the reasons for such an opinion given by the State expert i.e. Handwriting Expert, Ballistic Expert, Serologist Report, etc. The expert has to be examined and he would have to state before the Court his grounds for such an opinion. Those grounds should be supplied to the accused if they are sent by him to the Investigating Officer, and that would be in the nature of a statement obtained from him, as if it were under Section 162 of the Cr.P.C.

[13] The right of the accused with regard to the 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 the 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 the 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.





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         [14]            The duty of the Sessions Court to supply copies of the

chargesheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 Cr.P.C. is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The fact that many of the accused persons were not provided with copies of the chargesheet and the other relevant documents, as indicated in Sections 207 and 208, Cr.P.C., seriously affects the right of an accused to a free and fair trial.

[15] The principal of Natural Justice are an integral part of a fair trial. Article 21 of the Constitution of India and the Universal Declaration, mentioned above, both guarantee a fair trial to the accused. Even if the Code does not contain any provision for providing "all" the evidence collected by the investigating agency, such a provision has to be read into the Code. For, the principle of Natural Justice audi alteram partem would have to be read into the Code. It is trite to state that an opportunity of hearing means effective and substantial hearing. Truncated evidence, half hidden evidence given to the accused or placed before the Court, do not amount to effective hearing. Thus, under the principle of audi alteram partem the accused would have the right to access the evidence which is in his favour, but which the prosecution is unwilling to produce in the Court and whose disclosure does not harm the public interest.

[16] The investigating agency and the prosecution both represent the State. Every action of the State is legally required to be fair, just and reasonable". In case, the investigating agency and the prosecution withhold any evidence in favour of the accused from the accused, they are not being fair, just and reasonable with Page 87 of 106 HC-NIC Page 87 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT the accused. Therefore, their action would be in violation of Art. 14 of the Constitution of India. Article 21 of the Constitution of India also requires that the procedure established by law should be fair and reasonable. A procedure which permits the withholding of evidence which is in favour of the accused from the Court and from the accused, cannot be termed as "fair and reasonable". Thus, such a procedure would be in violation of Art. 21 of the Constitution of India. Therefore, Section 172(3) would have to be interpreted in such a way as to make it commensurative with the Constitutional spirit.

[17] If the prosecution wants to rely upon the grounds of the opinion given by an expert in respect of any test as a piece of evidence against an accused, that has to be supplied to the accused under section 173(5) of the Cr.P.C.

51 At this stage, once again at the cost of repetition, let me take note of what is demanded by the accused herein:

(i) As per panchnama dated 18/06/2016 between 12.45 and 13.10. p.m. WHC Lilaben produced clothes of Kinnari.

(a) Whether WHC Lilaben prepared any documents when she allegedly took clothes from Kinnari.

(b) Whether there is any document to show at what time WHC Lilaben collected the clothes from Kinnari and where she keep them till she produced them as per above panchnama dtd. 18.06.2016.

(ii) As per forwarding letter dtd. 24/06/2016, the said clothes alongwith blood, vagina swab, oral saliva, nail clipping and public Page 88 of 106 HC-NIC Page 88 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT hairs etc were forwarded to FSL.

(c) Whether there are any documents relating to these clothes and where those articles mentioned above were kept and in whose custody they remained etc?

(iii) As per FSL Report dtd. 28/07/2016, they analysis of these clothes was started on 27/06/2016 and completed on 27/07/2016.

(d) Whether there is any document showing as to where these clothes were remained and who was custodian thereof between 24/06/2016 to 27/06/2016.

(e) Whether there is any document showing as to where these clothes were remained and who was custodian thereof between 27/06/2016 to 27/07/2016.

a. Regarding blood sample, semen collection of accused Jayeshbhai.

Semen Sample:

As per letter dated 22/06/2016, as medical officer, PHC, Waghodia address to PSI Waghodia, though Jayesh Patel could not succeed in producing semen in spite of masturbating 3 times, and hence he was sent to SSG Hospital and on 23/06/2016, he is alleged to have Medical Officer SSG Hospital, Vadodara who by certificate mentioned. "As per Urosurgen Dr. Sanjiv Shah's guidance, semen sample collected.

(d) Is there any document prepared as to by which method the said semen sample was collected.

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(e) Is there any document prepared to show what was the quantity of semen which was allegedly collected.

(f) Whether while allegedly handing over semen sample any documents were prepared?

Blood Sample:

(g) Is there any document prepared to show what was the quantity of blood which was allegedly collected.

(h) Whether while allegedly handing over blood sample any documents were prepared?

As per forwarding letter to FSL, the above samples of blood were sent to FSL on 24/06/2016 and they were tested subsequently on 01/07/2016 to 07/07/2016.

(i) Are they any documents showing in whose custody the said specimen remained between 24.06.2016 till they were tested?

(j) It appears that as per standard ladder and working procedural manual by FSL DNA analysis was carried out "As per working Procedural Manual RFSLDNAOPM and RFSLBIOOPM."

If prosecution is relying upon the said manual on the basis of which the said DNA conclusion was arrived at, kindly furnish the copies of the said manuals.

52 I am of the view that the above is nothing, but a roving inquiry at the end of the accused at the stage of framing of the charge. I believe Page 90 of 106 HC-NIC Page 90 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT that this is something unprecedented. As noted earlier, the chargesheet filed gives more than a fair idea to the accused about the accusations and the materials collected by the Investigating Agency in respect of the same. It is not that the accused is absolutely in dark as on date. The questions putforward by the accused referred to above are more in the nature of questions which can be put in the crossexamination of a particular witness. The attempt on the part of the applicant accused is to conduct a minitrial much before the charge is framed, which is otherwise not permissible in law. The applicant wants the Court to conduct a minitrial for the purpose of ascertaining whether the accused is potent or capable of having sexual intercourse. Say for example, the certificate issued by Dr. Sanjiv Shah of the S.S.G. Hospital, Vadodara as regards collection of the semen sample. The certificate indicates that semen sample was collected subjecting the applicant accused to a particular test. Now how such test was carried out, what are the characteristics of such test, what type of documents have been prepared in this regard by Dr. Sanjiv Shah may not be a part of the chargesheet. Ultimately, if Dr. Sanjiv Shah is examined as a prosecution witness, he can be confronted with all the necessary questions by the defence and can even be asked about the documents if any as regards the procedure adopted by him. The defence can also ask the prosecution to produce to such documents and whether the prosecution is relying upon the same or not, they can always be asked to be produced at the relevant time.

53 Having regard to the provisions of the Cr. P.C. i.e. Section 207, the prosecution cannot be compelled to produce any document and it is incumbent on its part to supply copies to the defence of such document only on which they propose to rely. It is too much to say that the prosecution should make a positive statement in this regard at this very stage as to what documents they propose to rely or do not propose to Page 91 of 106 HC-NIC Page 91 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT rely. It is impermissible in law to bind the prosecution in this manner at this stage. It is the Public Prosecutor appointed by the State, who would conduct the trial being incharge of the same, and it is he, who has to take the necessary call at an appropriate stage in the course of the trial. The remedy of the defence in this respect lies in the provisions of the Code enabling it to call for the same during the trial of the case and get the benefit of the presumptive value in the event of failure of the prosecution to produce any particular document, which is supposed to be in its possession. To put it in other words, if it is found at the time of trial that any particular document which the prosecution is in possession of, but is withholding, then the defence will be entitled to get the benefit of an adverse presumption being drawn against the prosecution. But that does not mean that at the stage of framing of charge, such presumption will be available to the defence. It is wellsettled principle that in the matter of framing of charge under Section 228 of the Cr.P.C., the test is whether the materials on record, if unrebutted, makes a conviction reasonably possible and at the stage of framing of charge even a strong suspicion founded on the materials before the Court may justify the framing of the charge provided that the Court is satisfied that there is a prima facie case against the accused made out from the materials before it; but the standard of test and judgement, which is to be finally applied before recording of a finding of guilt, is certainly not to be expected during the stage of framing of the charge. The Sessions Judge is not to weigh the evidence in a sensitive balance and the scrutiny as needed in the trial need not be applied at this stage. It is not permissible at this very stage of framing of charge on the part of the Trial Court in a case based on police report to call for document which is permissible for the prosecution to produce in the course of the trial and which could or could not have been a part of the chargesheet. The Trial Court will be confined within the compass of the records of the case and the Page 92 of 106 HC-NIC Page 92 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT documents submitted by the prosecution for the purpose of ascertaining whether there is sufficient ground for proceeding against the accused. If the Trial Court has to call for documents, as requisitioned by the defence at this stage, then that will be tantamount to the holding of a minitrial for all practical purposes and the letter and spirit behind the Section 227 or 228 will be given total burial and a trend contrary to the intention of the legislature will be set in.

54 As to the question what kind of materials should be taken into consideration by a Judge for the purpose of framing charge against an accused under Section 228 or discharging him under Section 227 of the Code the law has not left it to the unbridled discretion or sweet will of the Court, but it has expressly set the limits within which it has to confine the exercise of its discretion, namely, "the record of the case and the documents submitted therewith". This expression is very important. It signifies the documents as referred to under Section 173(5) of the Cr. P.C., i.e., all the documents on which the prosecution proposes to rely and the statements under Section 161 of the Cr. P.C. of all the persons whom the prosecution proposes to examine as its witnesses. The provisions of Section 207 make this interpretation more clear. Under Section 207 the Court has been assigned the duty to arrange for supply to the copies to the accused of only such documents as are relied upon by the prosecution, for example, statements recorded under Section 161 of the Cr. P.C. of persons whom the prosecution proposes to examine as its witnesses and documents forwarded to the Magistrate by the investigating agency under Section 173(5) of the Code. The prosecution cannot be compelled to furnish any document not forming part of the bunch of documents forwarded to the Magistrate under Section 173(5) of the Code.




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         55     I   am   not   impressed   by   the   submission   of   the   learned   senior

counsel that if the documents and the necessary information is supplied to the applicant at this stage, then the same can be helpful even for the purpose of seeking discharge under Section 227 of the Cr. P.C. The Code has prescribed a suitable procedure for accommodating the defence by giving it opportunity to adduce its evidence either oral or documentary at the appropriate stage, but if that right or opportunity is allowed to be exercised by the defence at this initial stage of framing of charge then such a procedure will certainly be premature and vitiated by illegality.

56 In the aforesaid context, I deem fit to refer to and rely upon a decision of the Supreme Court in the case of Bharat Parikh vs. C.B.I. [2008 Cri. L.J. 3540], wherein, the Supreme Court observed in para 16 as under:

"With regard to the second proposition regarding the High Court's powers to look into materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under Section 482 of the Code for quashing the charges framed, it has to be kept in mind that after the stage of framing charge evidence has to be led on behalf of the prosecution to prove the charge if an accused pleads not guilty to the charge and/or charges and claims to be tried. It is only in the exceptional circumstances enumerated in State of Haryana v. Bhajah Lal, 1992 Suppl (1) SCC 335, that a criminal proceeding may be quashed to secure the ends of justice, but such a stage will come only after evidence is led, particularly when the prosecution had produced sufficient material for charges to be framed. As observed in Debendra Nath Padhi's case (supra) at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused have to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to reopen the proceedings once charge has been framed or for invocation of the High Court's powers under Section 482 of the Code of Criminal Procedure."

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HC-NIC Page 94 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT 57 I would like to refer to and rely upon a Constitution Bench decision of the Supreme Court in the case of K. Veeraswami vs. Union of India and others [(1991) 3 SCC 655], in which the Supreme Court made the following observations in para 76 as under:

"The chargesheet is nothing but a final report of the police officer under Section 173(2) of the Cr. P.C. Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable Offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (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 offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi and Ors. vs. State of Bihar [1980] 3 SCC 152 at 157; that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case "adducing acceptable evidence."

58 It has been vehemently submitted by the learned senior counsel appearing for the applicant accused that the documents demanded along with certain other information is very much necessary so that the accused can start preparing his defence. At the last minute, in the course Page 95 of 106 HC-NIC Page 95 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT of the trial, if something surfaces, then it would be very difficult for the accused to tackle such a situation. To put it in other words, the endeavour on the part of the learned senior counsel is to persuade the Court that irrespective of the stage whether the trial has commenced or not, the accused is entitled to know how the medical tests were conducted and what documents are on record in that regard. According to the learned senior counsel, the accused can seek the assistance of experts in the field for the purpose of confronting the State experts as regards their opinions and reports. It would be difficult for the accused at the last minute to undertake such an exercise. The anxiety expressed on behalf of the applicant in one way is justifiable. However, I see no good reason to apprehend a situation wherein the Trial Court would decline to grant time to the accused in such circumstances. If a request is made to the Trial Court to grant some time to go through the relevant documents for the purpose of studying them or even consulting an expert, the Trial Court ordinarily would not decline such a request. Just to take care of such an apprehension, the procedure, which is otherwise impermissible in law, should not be asked to be followed.

59 I am also not impressed by the submission of the learned senior counsel appearing for the applicant accused that the documents which have been demanded cannot be produced at a later stage i.e. in the course of the trial and they should have been a part of the chargesheet itself.

60 My aforesaid view is fortified by few decisions of the different High Courts.

61 In the case of State vs. Jagadish Pandey [AIR 1958 Calcutta 311], a learned Single Judge of the Calcutta High Court was called upon Page 96 of 106 HC-NIC Page 96 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT to answer a reference made by the Sessions Judge under Section 438 of the old Code of Criminal Procedure. In the said case, the accused was being tried under Section 324 of the I.P.C. in accordance with the provisions of Chapter XXI of the Cr.P.C. The copies of the necessary documents were furnished to the accused under the provisions of Section 173(4) of the old Code. The case was fixed for hearing. On the date of hearing, an application was filed by the officer incharge of the conduct of the prosecution, praying that three witnesses be summoned to give evidence in defence. The learned Magistrate refused the prayer on the ground that none of those witnesses had been examined by the police during the investigation and their statements consequently had not been recorded under Section 161 of the Cr.P.C. While quashing the order of the Magistrate and answering the reference accordingly, the Court observed as under:

"3. Section 173 (4) of the Code of Criminal Procedure provides that the officerincharge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under subs. (1), of the first information report recorded under S. 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under S. 164, and the statements recorded under subs. (3) of Ss. 161 of all persons whom the Prosecution proposes to examine as its witnesses. The learned Magistrate seems to think that this is a provision designed to benefit the accused person by giving him an advance copy of the statements which the witnesses have made against him during investigation. Obviously copies of all police papers, including the first information report and confessions and statements of witnesses examined by the police during investigation are intended to be given to the accused for his benefit. The question arises whether this provision of the law implies that the prosecution is prevented from calling any witness at the trial who has not been examined by the police or whose statement has not been recorded by them under S. 161 of the Code. In my view, it was not the intention of the legislature to shut out relevant evidence by enacting subs. (4) of S. 173 of the Code. The purpose might have been to benefit the accused by giving him in advance, copies of the documents and statements referred to in the subsection; but that could not possibly have the effect of preventing the prosecution from calling other competent evidence at the trial.




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            R/SCR.A/778/2017                                                       JUDGMENT

4. Reference may be made to S. 251A of the amended Code of Criminal Procedure which provides that after the accused has been given copies of documents and papers referred to in S. 173 (4) and after hearing the parties, if the Magistrate is of the view that there is ground for presuming that the accused has committed an offence which he is competent to try and adequately punish, it shall be his duty to frame a charge against the accused. If thereafter the accused claims to be tried, the Magistrate has to fix a date for examination of witnesses; subs. (7) 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. There is a proviso attached to the subsection which says 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." The question arises whether in view of subs. (7) of S. 251 A, the prosecution is to be limited to examining only such persons as have already been examined by the police and whose statements have been recorded in accordance with the provisions of S. 161 (3) of the Code. The learned Magistrate's view seems to be that if examination was permitted of persons at the trial whose statements have not been recorded by the police, that would take the accused person by surprise and prejudice the defence. A trial, in order to be fair, has to be so both to the prosecutor and to the accused. If the prosecution is to be restricted to examining only those persons whose statements have been recorded by the police, that might very much affect Proof of the charge brought against the accused. The real purpose of S. 161 (3) taken along with S. 173 (4) of the Code seems to be that the accused should be given a fair treatment by being told what the case against him is and by apprising him of the fact that certain persons have furnished to the police materials for his prosecution. It is, of course, true that when those previous statements are proved according to law, they may affect the value of the evidence in Court. But the mere fact that the police did not consider witness material during investigation or collection of evidence, will not, in my view, preclude the prosecutor from asking for or the Magistrate from calling such witness at the trial. The language of subs. (7) of S. 251A seems to me to be purposely wide so as to enable the prosecutor to produce all such evidence as may be produced in support of the prosecution. If we are to read "all such evidence" in the subsection as meaning only such evidence as relates to those of persons who have been examined by the police, it will be reading into the sub section something which is not there. I do not think subs. (4) of S. 173 controls subs. (7) of S. 251A of the Code. Moreover, a Magistrate in the discharge of his judicial functions must always be left free to exercise his discretion in the matter of allowing parties to produce evidence. The exercise of that discretion is controlled and regulated by various factors, one of them being the factor of admissibility of evidence. But if in the interests of justice, the Magistrate feels that the prosecutor should be allowed to examine a witness whose statement has not been recorded by Page 98 of 106 HC-NIC Page 98 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT the police during investigation, I do not think it would be right to limit the prosecution to producing evidence of only such persons as have been examined by the police during investigation. Further it seems clear that the proviso attached to subs. (7) of S. 251A gives the Magistrate power to defer the crossexamination of a witness until a future date. That obviously prevents the accused from being taken by surprise so that he can if so permitted crossexamine the new witness on a later date upon his examinationinchief. In my view, it could not have been the intention of the Legislature to limit the operation of subs. (7) of S. 251A by compelling the prosecution to confine itself to the evidence of only those persons whose statements have been recorded by the police.

5. There is yet another aspect of the matter. If the rule of S. 173 (4) of the Code is to be considered irrelaxable, then S. 540 would become otiose. That section provides that any Court may, at any stage of any inquiry, trial or other proceeding under the Code summon any person as a witness or examine any person in attendance, though not summoned as witness, or recall or reexamine any person already examined, provided that the Court is satisfied that the evidence of such witness is essential to a just decision of the case. The magistrate's view of subsec. (4) of sec. 173 taken along with subsec. (3) of sec. 251A would perhaps affect even sec. 540. I cannot persuade myself that this was ever the intention of the Legislature to rob the prosecutor of the means of proving his case by calling relevant and useful evidence or to rob the Court of its power of doing complete justice between party and party by limiting the citation of evidence in the manner suggested by the Magistrate in the order in question. I think despite subsec. (4) of sec. 173 of the Code of Criminal Procedure a prosecutor has the right to examine a witness whose statement has not been recorded by the police under sec. 161 (3) of the Code, and certainly the Court has power under sec. 540 to examine or recall or reexamine any person whose evidence appears to the Court to be essential to a just decision of the case. The structure of evidence in Court cannot always be a mere replica of statements during investigation."

62 In Public Prosecutor vs. C.S. Pachiappa Mudaliar [AIR 1958 Madras 295], after the charges were framed against the accused persons, the prosecution felt the need to furnish some more documents on which they proposed to rely upon. The copies of those documents were offered to the accused, but the accused declined to receive the same. The learned Magistrate took the view that the prosecution could not have filed such documents as they were not tendered in the first instance. The High Court, while allowing the documents to be tendered Page 99 of 106 HC-NIC Page 99 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT by the prosecution, held as under:

"It is true that it is the duty of the prosecution to furnish in the first instance itself under the provisions of S. 173 all the documents on which they rely. But, in the course of the trial, if the prosecution think it necessary to file additional documents or statements of witnesses on which they propose to rely, the section does not prevent them from filing them. They are entitled to file such documents, the only obligation being that they must be given in advance to the accused, so that he may be enabled to make use of the documents to his best advantage. The Magistrate is therefore not correct in holding that the prosecution is not entitled to file these documents. But in terms of the prayer in the petition. I must say that no Magistrate can compel the accused to receive any documents that are given or tendered to him by the prosecution. But the conduct of refusal must be noted by the Magistrate so that the accused may not afterwards turn round and raise an argument that the documents have not been tendered to him and he has been prejudiced thereby. I do not think, however, that the Court has any power to compel the accused to receive whatever document that is given by the prosecution. If he does not receive it, he has to suffer; but the prosecution cannot be penalised for his refusal to receive the document."

63 In the case of Shantilal vs. State of Madhya Pradesh [1959 Madhya Pradesh 290], a learned Single Judge was called upon to answer a reference made by the Sessions Judge as regards permitting the prosecution to produce additional documents which were not a part of the report under Section 173 of the Cr.P.C. While setting aside the order of the Magistrate, the Court held as under:

"From the wording of section 173 (4), it is very clear that the law imperatively requires copies of all documents on which the prosecution relies to be furnished to the defence before the commencement of the trial. It is also true that the provision is mandatory in nature. But in this provision, we cannot read any disabling provision so that the court becomes powerless to allow the prosecution to file fresh documents. In the present case, the first document abovenamed came to the investigation officer after he had submitted the challan to the court and the second document is patently one which could not be filed with the challan because that judgment was pronounced subsequent to the institution of the police report in court. That apart, the magistrate in the discharge of his judicial functions must always be left free to exercise his discretion in the matter of Page 100 of 106 HC-NIC Page 100 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT production of evidence by the parties, within the limits prescribed by the law, and if there is no express provision debarring evidence to be produced at a certain stage, the procedure should be construed in such a manner as not to deprive the court of that discretion. In Section 173, nor in any other provision of the Code of Criminal Procedure, do I find any such disabling provision; I do not find in the Code any provision which prevents the prosecution from filing additional documents or statements of witnesses on whom they propose to rely. What value is to be attached to such additional documents which are produced at a late stage, will always depend upon the peculiar circumstances of each case. I therefore hold that the trial magistrate has power to admit in evidence both the documents which the prosecution seeks to produce. Of course, copies thereof must be supplied to the defence. I am supported in my view by a recent decision of the Madras High Court in Public Prosecutor v. Pachiappa, AIR 1958 Mad 295."

64 In the case of State vs. Raghunath [AIR 1963 Rajasthan 85], a learned Single Judge of the Rajasthan High Court was called upon to answer a reference made by the Additional District Magistrate, Jodhpur as regards the right of the prosecution to rely upon a document which was not a part of the report under Section 173 and the copy of which was not furnished to the accused. The Court, relying upon the decision of the Supreme Court in the case of Narayan Rao (supra), answered the reference accordingly as under:

"3. It is true that under Section 1/3(4) there is an obligation on the prosecution to furnish or cause to be furnished to the accused copies of all the documents on which it proposes to rely. The object of furnishing copies referred to in Section 173(4) to the accused is to safeguard his interests so that he may have notice of the case he is required to meet. There is however, nothing in subsection (4) which prevents the prosecution from putting in such documents at the trial which at the time of the report were not available to them or if they were available their copies were not supplied to the accused. This subsection came to be interpreted by the Supreme Court in Narayan Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 737 in which it was held that :

"The provisions contained in Section 173(4) and Section 207A(3) have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of Page 101 of 106 HC-NIC Page 101 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought to see that all the documents necessary to give the accused persons all the information for the proper conduct of their defence, are furnished. But noncompliance with those provisions has not the result of vitiating those proceedings and subsequent trial. The word 'shall' occurring both in subsec. (4) of Section 173 and subsec. (3) of Section 207A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of Section 173, should not be allowed to have such a farreaching effect as to render the proceedings including the trial before the Court of Sessions, wholly ineffective."

It will thus be clear that the provisions of the said subsection are not mandatory but only directory. It therefore, follows that a noncompliance of this provision cannot debar the prosecution from examining any witness or producing any document during the course of the trial. On the other hand subsection 7 of Section 251A which lays down the procedure to be followed by the Court in cases instituted on police report is in very wide terms and the Magistrate is bound to take all such evidence as may be produced in support of the prosecution. No restriction has been put on the right of the prosecution to produce evidence at the trial in this subsection. Subsec. (4) of S. 173 does not control subsection (7) of Section 251A of the Code. The words 'all such evidence' do not mean only such evidence as is referred to in subsection 4 of Section 173. If that were so then something more will have to be read in subsection (7) which is not there. All that can be inferred from subsection (4) of Section 173 is that before the prosecution is allowed to put in additional document it should furnish a copy of the same in advance to the accused so that he may not be prejudiced in his defence. If it is shown that by lie production of additional evidence the rights of the accused are prejudiced in any manner the Magistrate may recall any witness for the purpose of crossexamination and also give him opportunity to meet that additional evidence. However, the provisions of subsection 173 cannot be read to mean that the prosecution is prevented from putting in additional document at the trial copy of which had not been supplied to the accused. In Thota Ramalingeshwara Rao's case, AIR 1958 Andh Pra 568 relied on by Mr. Singhvi it was held that the provisions of Section 173(4) are mandatory and its noncompliance leads to failure of justice. In view of the decision of the Supreme Court referred to above this case cannot be taken as laying down good law. A Division Bench of the same Court in Chandu Veeriah's case, AIR 1960 Andh Pra 329 dissented from the view expressed in Thota Ramalingeswara Rao's case, AIR 1958 Andh Pra 568, and held that there is no express prohibition in Section 173(4) or Section 251A against the use by the prosecution of documents copies of which have not been furnished. These provisions do not, by implication, Page 102 of 106 HC-NIC Page 102 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT deny the prosecution using a document at the enquiry or trial, a copy of which does not happen to have been furnished to the accused. In re Rangaswami Goundan, (S) AIR 1957 Mad 508 though it was held that provisions of section 173(4) are mandatory yet it was held that the report of the chemical examiner which is usually not received by the time the enquiry commences can be admitted in evidence during the course of the enquiry, even though its copy had not been supplied to the accused. There is ample authority in support of the view that if in the course of trial the prosecution thinks it necessary to file additional documents or statements of witnesses on whom they propose to rely Section 173(4) does not prevent them from filing them. See Public Prosecutor v. C. S. Pachippa Mudaliar, AIR 1958 Mad 295, State v. Jagdish Pandey, AIR 1958 Cal 311, In re Shantilal, AIR 1959 Madh Pra 290 and State v. Baikunthanath Mohanta, AIR 1960 Orissa 150. In my view the learned City Magistrate was in error in rejecting the request of the prosecution to prove the entries in the log book by the evidence of Munir Khan. In order to safeguard the interests of the accused he should have directed the prosecution to supply copies of the entries of the log book to the accused in advance. It has not been urged before me that the entries of the log book are not relevant in this case."

65 In the case of State vs. Baikunthanath Mohanta [AIR 1960 Orissa 150], a learned Single Judge of the Orissa High Court was called upon to answer a reference made by the Additional District Magistrate and somewhat in the following facts:

The police submitted chargesheet under Sections 379 read with 34 of the I.P.C. against six persons. The Court took cognizance upon the chargesheet. The Magistrate, prior to the commencement of the trial, satisfied himself that the documents referred to under Section 173(4) of the Cr.P.C. were duly handed over to the accused persons. After perusing those papers, the Magistrate framed charges under Sections 379 read with 34 of the I.P.C. Six prosecution witnesses were examined, cross examined and discharged. The prosecution, then wanted to examine an expert and also to prove his report. The learned Magistrate took the view that the report of the expert was inadmissible inasmuch as a copy of the same had not been granted to the accused prior to the commencement Page 103 of 106 HC-NIC Page 103 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT of the trial along with the other papers referred to under Section 173(4) of the Cr.P.C. While answering the reference, the learned Single Judge observed as under:

"2. There has been some divergence of judicial opinion on this question. In AIR 1958 Andh Pra 568 the learned Judge took the view that the provisions of Sec. L73(4) Cr. P.C. were mandatory and that the accused should be furnished with copies of all documents on which the prosecution relies, prior to the commencement of the trial; and that after the; commencement of the trial the prosecution should not be permitted to produce and prove any new documents even though the accused may get sufficient opportunity to crossexamine the prosecution witnesses with reference to the new documents. The Calcutta and Madras High Courts have, however, taken a contrary view. Thus, in State v. Jagdish, AIR 1958 Cal 311 it was pointed out that the provisions of Sec. 173(4) Cr. P.C. are directory and that even after the commencement of the trial the prosecution may prove additional documents in the usual way provided the accused gets a full opportunity to crossexamine the prosecution witnesses in the light of those documents. The Madras High Court has taken a similar view in Public Prosecutor v. C.S. Pachiappa AIR 1958 Mad 295.

3. With respect, I would follow the Calcutta and Madras view. It is true that the provisions of Sec. 173(4) Cr. P.C. should be followed strictly and copies of all the papers mentioned in that SubSection and on which the prosecution relies should be furnished to the accused persons before the trial commences. But after the commencement of the trial, the proper section to be followed would be Sec. 251A(7) Cr. P.C. by which the Magistrate is required "to proceed to take all such evidence as may be produced in support of the prosecution". The expression "all evidence" in this clause must include documentary evidence also. It is likely that some documents which were not available during police investigation may become relevant and may have to be produced subsequently. In such a case the prosecution should not be denied an opportunity to prove these documents provided it is ensured that no prejudice is caused to the accused and he is given an opportunity to crossexamine the prosecution witnesses in the light of those documents; if necessary the accused may be granted an adjournment for the purpose of facilitating such cross examination. If the view of the Andhra High Court in the abovecited case be accepted the power conferred on the Court by Sec. 540 Cr. P.C. would be rendered ineffective in many cases. The ends of justice may sometime require that even after the commencement of the trial some additional documentary evidence may have to be produced and proved by the prosecution, and the exercise of discretion by the Court cannot be fettered Page 104 of 106 HC-NIC Page 104 of 106 Created On Sun Aug 13 07:57:51 IST 2017 R/SCR.A/778/2017 JUDGMENT merely because the relevant papers were not furnished to the accused, before the commencement of the trial, as required by Sec. 173 (4). On this question I would, with respect, agree with the Calcutta view given in AIR 1958 Cal 311."

66 Although the issue raised as such may appear to be very small, but, has its own importance, because it has something to do with Article 21 of the Constitution of India. Article 21 of the Constitution of India uses the expression "personal liberty". The said expression is not restricted to freedom from physical restraint, but includes a full range of rights, which has been interpreted and conferred by the Apex Court in a plethora of decisions. Nothing is wrong if the applicant herein asserts that he is innocent and has not committed any offence. The law also presumes an accused to be innocent until proved guilty. However, the accused cannot seek from the Court something which is impermissible in law. I have examined and reexamined the questions raised before reaching to the conclusion. I have given my fullest consideration to all the questions raised. I have tried to explain the position of law, which, by and large, will cover the rights of the respective parties.

67 In the overall view of the matter, I am convinced that no case is made out for grant of any of the reliefs, as prayed for, in this application. In such circumstances, this application fails and is hereby rejected. Notice stands discharged. The adinterim order granted earlier stands vacated forthwith. It shall be open for the Trial Court to proceed with the framing of the charge, subject to the right of the accused to move an application for discharge. It is needless to clarify that if any such application for discharge is filed by the accused herein, the same may be considered expeditiously in accordance with law.




                                                                               (J.B.PARDIWALA, J.)


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                      R/SCR.A/778/2017                                           JUDGMENT


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