Himachal Pradesh High Court
Paramjeet Singh Grewal vs Of on 8 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 480 of 2022 a/w .
Cr.MMO No. 796 of 2022 Date of Decision: 08.01.2024
1. Cr.Revision No. 480 of 2022 Paramjeet Singh Grewal ...Petitioner Versus of State of H.P. ...Respondent
2. Cr.MMO No. 796 of 2022 Paramjeet Singh Grewal ...Petitioner rt Versus State of H.P. ...Respondent Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner(s) : Mr. Ajay Kochhar, Sr. Advocate, with Mr. Vivek Sharma & Mr. Anubhav Chopra, Advocates in both the petitions.
For Respondent/State : Mr. Jitender Sharma, Additional Advocate General in both the petitions.
Rakesh Kainthla, Judge (Oral), The petitioner (accused before learned Trial Court) is aggrieved by the order dated 08.06.2022 passed by learned Additional Sessions Judge, Fast Track Court (POCSO), Shimla H.P, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 2vide which his application under Section 91 of Cr.P.C. for bringing on record the supplementary statement of the victim was .
dismissed and the charge was framed against him for the commission of offence punishable under Section 376 of Indian Penal Code (IPC). (Parties shall hereinafter be referred to in the same manner in which they were arrayed before the learned Trial of Court for convenience).
2. rt Briefly stated the facts giving rise to the present petitions are that the victim made a statement before the police that the accused called her father on 19.11.2017 to attend the programme being held at Gaiety Theatre. She and her father went to attend the programme. They had a dinner after the programme. The accused told the victim that she should go the Mumbai for modeling with the accused's daughter. When the victim's father went away to the washroom for some time, the accused offered the victim a drink. He also obtained her mobile number. He called her subsequently and told her that she could become Diva in 2019. The accused demanded her photographs on 20.11.2017, which he wanted to send to his daughter. The victim sent her photographs. The accused called the victim and said that the Choreographer and modelling Director were sitting with him.
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 3He also told the victim that her aunt and maid were also at home.
The victim went to the house of the accused after she was assured .
that her aunt and maid were at home. However, they were not at home. Only the accused and one other person were at home. The accused raped the victim in his home. The matter was reported to the police. The police conducted the investigation and filed a of charge sheet before the Court after the completion of the investigation. rt
3. The accused made an application under Section 91 of Cr.P.C. for the production of the documents taken into possession during the investigation of the case. It was asserted that the accused obtained the information under the Right to Information Act, 2005 and found that the victim had filed an application for getting her statement recorded under Section 164 Cr. P.C. The investigating agency recorded her statement under Section 161 Cr. P.C. and filed the application for getting the statement of the victim recorded under Section 164 of Cr.P.C. The application and the statement were not placed on record. These are essential documents and will not cause any prejudice to the prosecution.
Hence, it was prayed that the summons be issued to the Investigating Officer to produce the documents.
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 44. The application was opposed by filing a reply making preliminary submissions regarding the lack of maintainability.
.
The contents of the application were admitted to the extent that the victim filed an application before the police on 23.08.2018 for recording her supplementary statement. Her statement was recorded on 28.08.2018; however, it was contrary to her of statement recorded under Section 154 Cr. P.C. The police also filed an application for recording the statement of the victim rt under Section 164 of Cr.P.C., but it was not recorded by the Court.
The prosecution has also not placed reliance on the supplementary statement made by the victim, in view of it being contrary to the prosecution's case. The prosecution will have a serious prejudice if the application is allowed; hence, it was prayed that the present application be dismissed.
5. Learned Special Judge held that the matter was listed for framing of the charge. The Court is required to look into the material collected by the prosecution and the accused can rely upon the evidence, which is of sterling and unimpeachable quality. The statement recorded under Section 161 of Cr.P.C.
cannot be said to be of sterling and unimpeachable quality because the possibility of the victim being under pressure, duress ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 5 or threat that too after nine months could not be ruled out.
Hence, no direction could be issued under Section 91 of Cr.P.C. for .
producing the documents. Consequently, the application was dismissed.
6. Being aggrieved from the order rejecting the application under Section 91 of Cr.P.C. and framing charge, two of separate petitions have been filed.
7. rt In the petition filed against the dismissal of the application, it was asserted that the learned Special Judge erred in rejecting the application. It is a fundamental principle of criminal jurisprudence that the accused has a right to a fair investigation and fair trial. Every evidence in favour of the accused should be brought on record. Learned Trial Court erred in holding that the application is not maintainable at this stage.
The documents sought to be produced on record had a bearing on the merits of the case. The amendment made in the rule made by the High Court was not considered; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 68. In the revision filed against the order framing the charge, it has been asserted that the learned Trial Court erred in .
concluding that there existed a prima facie case against the accused for the commission of an offence punishable under Section 376 of IPC. The victim had filed an application for recording her statement under Section 164 of Cr.P.C. She had also of made a supplementary statement under Section 161 of Cr.P.C. No charge could have been framed if these documents were taken rt into consideration. The application under Section 91 of Cr.P.C.
was dismissed on the same day and no opportunity was afforded to the accused to argue the case. The order is a non-speaking one and does not assign any reason. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
9. I have heard Mr Ajay Kochhar, learned Senior Counsel assisted by Mr Vivek Sharma and Mr Anubhav Chopra, learned counsel for the petitioner and Mr Jitender Sharma, learned counsel for the respondent/State.
10. Mr. Ajay Kochhar, learned Senior Counsel for the petitioner/accused submitted that the learned Trial Court erred ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 7 in dismissing the application. It was undisputed that an application was filed by the victim for recording her statement .
under Section 164 of Cr.P.C. The police had also recorded the supplementary statement of the victim and an application under Section 164 of Cr.P.C. was also filed, which was rejected by the Court. The documents not relied upon by the prosecution are also of to be supplied to the accused as per the amended rules by the High Court. The Rules were not considered by the learned Trial rt Court. The judgment of this Court in Siemens Enterprise Communications Pvt. Ltd. now known as Progility Technologies Pvt.
Ltd. Versus Central Bureau of Investigation, Cr.MMO No. 165 of 2018 decided on 30.08.2019 was also not considered; therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
11. Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State supported the order passed by the learned Trial Court and submitted that no interference is required with the same.
12. I have given considerable thought to the submissions at the bar and gone through the records carefully.
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 813. It is undisputed that the victim had made an application before the police that her statement under Section .
164 Cr.P.C. be recorded. It is also not disputed that the police recorded the statement of the victim under Section 161 Cr.P.C.
and filed an application for recording the statement of the victim under Section 164 of Cr.P.C. which was dismissed by the Court.
of These facts were specifically mentioned in Para 2 and 3 of the reply filed by the State. It was laid down by the Hon'ble Supreme rt Court in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 :
(2010) 2 SCC (Cri) 1385 that furnishing of documents to the accused is a facet of the right of fair trial and the accused has a right to the relevant documents even if not filed with the charge sheet. It was observed:
"218. 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 (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for the production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place 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 ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 9 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.
219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a of document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during an investigation such document could be denied in the discretion of the Prosecutor to the accused whether the rt prosecution relies or not upon such documents, however in other cases, the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only requires or mandates that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub- section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression 'documents on which the prosecution relies' are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.::: Downloaded on - 10/01/2024 20:35:13 :::CIS 10
220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such .
matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial of variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of the scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under rt 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 the investigation and upon which they rely.
221. 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 the 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 bona fide 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 a chance of fair defence, particularly when non- production or disclosure of such a document would affect the administration of criminal justice and the defence of the accused prejudicially."(emphasis supplied) ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 11
14. Therefore, the accused was entitled to a relevant document collected during the investigation.
.
15. It was laid down by the Hon'ble Supreme Court in Manoj v. State of M.P., (2023) 2 SCC 353: 2022 SCC OnLine SC 677, that the prosecutor has to bring the material on record even if the same is beneficial to the accused and such a record cannot be of withheld. It was observed:
rt "199. A Public Prosecutor (appointed under Section 24CrPC) occupies a statutory office of high regard. Rather than a part of the investigating agency, they are instead, an independent statutory authority [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602: 1994 SCC (Cri) 1087] who serve as officers to the court [Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277 : (2013) 3 SCC (Civ) 26 : (2013) 2 SCC (Cri) 978 : (2013) 2 SCC (L&S) 88]. The role of the Public Prosecutor is intrinsically dedicated to conducting a fair trial, and not for a "thirst to reach the case in conviction". This Court in Shiv Kumar v. Hukam Chand [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467: 1999 SCC (Cri) 1277] further held that : (SCC p. 472, para 13) "13. ... If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused."
200. In Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] (hereafter "Manu Sharma") it was concluded that : (SCC p. 74, para 187) ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 12 "187. Therefore, a Public Prosecutor has a wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the .
proceedings and, that all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused."
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201. In Manu Sharma [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1: (2010) 2 SCC (Cri) 1385], the appellants in question had argued that the right to fair trial included a wide duty of disclosure on the Public Prosecutor, such that rt non-disclosure of any evidence -- whether or not relied upon by the prosecution--must be made available to the defence. This Court considered Sections 207 and 208 CrPC, Rule 16 [ Rule 16 of Chapter II, Part VI of the Bar Council of India Rules under the Advocates Act, 1961: "16. An advocate appearing for the prosecution in a criminal trial shall so conduct the prosecution so that it does not lead to the conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided."] of the Bar Council of India Rules (which is limited to evidence on which the Prosecutor proposes to rely on), and English law. The Common law position culled out was that subject to exceptions like sensitive information and public interest immunity, the prosecution should disclose any material which might be exculpatory to the defence. Such a position, however, was not accepted by this Court, in its totality. It was held that such obligations are on a different footing in India, given the fundamental canons of our criminal jurisprudence founded on Articles 20 and 21 of the Constitution, which require not just the investigating agency, but also courts in their own independent field, to ensure that investigation is fair and does not hamper the ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 13 individual's freedom, except in accordance with law i.e. ensure adherence to the rule of law.
202. Relevant extracts that merit repetition are: (Manu .
Sharma case [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385], SCC pp. 80-81, paras 199 & 201-02) "199. It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that the investigation is fair and does not of in any way hamper the freedom of an individual except in accordance with the law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating rt agency not to conduct an investigation in a tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to the law as nobody stands above the law dehors his position and influence in society.
***
201. Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in the proper direction in consonance with the ingredients of the offence and not in a haphazard manner. In some cases besides the 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 the law. The investigation should be conducted in a manner so as to draw a just balance between citizens' rights under Articles 19 and 21 and the expansive power of the police to make an investigation. These well-established principles have been stated by this Court in Sasi Thomas v. State [Sasi Thomas v. State, (2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72], State of T.N. v. Surya ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 14 Sankaram Karri [State of T.N. v. Surya SankaramKarri, (2006) 7 SCC 172 : (2006) 3 SCC (Cri) 225] and T.T. Antony v. State of Kerala [T.T. Antony v. State of .
Kerala, (2001) 6 SCC 181: 2001 SCC (Cri) 1048].
202. In Nirmal Singh Kahlon v. State of Punjab [Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 : (2009) 1 SCC (Cri) 523] this Court specifically stated that a concept of fair investigation and fair trial are concomitant to the preservation of the fundamental right of the accused under of 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 rt to defence is not unduly hampered and what he is entitled to receive in accordance with law is not denied to him contrary to law."
16. It was further held that if there is some material beneficial to the accused, the Court can summon the same in the exercise of the power vested in it under Section 91 of Cr.P.C. It was observed:
"203. The scheme of the CrPC under Chapter XII (Information to Police and Powers to Investigate) is clear
-- the police have the power to investigate freely and fairly; in the course of which, it is mandatory to maintain a diary where the day-to-day proceedings are to be recorded with specific mention of the time of events, places visited, departure and reporting back, statements recorded, etc. While the criminal court is empowered to summon these diaries under Section 172(2) for the purpose of inquiry or trial (and not as evidence), Section 173(3) makes it clear that the accused cannot claim any right to peruse them, unless the police themselves, rely on it (to refresh their memory) or if the court uses it for contradicting the ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 15 testimony of the police officers. [Mukund Lal v. Union of India, 1989 Supp (1) SCC 622: 1989 SCC (Cri) 606; Malkiat Singh v. State of Punjab, (1991) 4 SCC 341: 1991 SCC (Cri) 976] .
204. In Manu Sharma [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385], in the context of police diaries, this Court noted that "[t]he 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". This object of is rendered entirely meaningless if the police fail to maintain the police diary accurately. Failure to meticulously note down the steps taken during the investigation, and the resulting lack of transparency, rt undermines the accused's right to fair investigation; it is up to the trial court that must take an active role in scrutinising the record extensively, rather than accept the prosecution side willingly, so as to bare such hidden or concealed actions taken during the course of investigation.
[The role of the courts in a criminal trial has been discussed in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999.]
205. In the present case, the trial court ought to have inquired more deeply into the role of DW 1, given that by her own deposition, she had admitted to analysing call detail records and involvement in Neha's arrest -- all of which had been suppressed by the prosecution side, for reasons best known to them. In this context, a reading of Sections 91 and 243 CrPC as done in Manu Sharma [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385], is important to refer to : (Manu Sharma case [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 :
(2010) 2 SCC (Cri) 1385], SCC p. 85, para 217) "217. ... Section 91 empowers the court to summon the production of any document or thing which the court considers necessary or desirable for the purposes of any investigation, inquiry, trial or ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 16 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, cross-
examination or the production of any document or other thing for which the court has to pass a reasoned order."
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206. The Court went on to elaborate on the due process protection afforded to the accused, and its effect on fair disclosure responsibilities of the Public Prosecutor, rt as follows : (Manu Sharma case [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385], SCC pp.
85-87, paras 218-222) "218. 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 (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for the production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place 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.
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 17219. 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 to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during an investigation such document could be denied in the discretion of the Prosecutor to the accused of whether the prosecution relies or not upon such documents, however in other cases, the obligation to disclose would be more certain. As already noticed rt the provisions of Section 207 have a material bearing on this subject and make an interesting reading. These provisions not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, and confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub-section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression "documents on which the prosecution relies" are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 18 during the course of investigation as per the requirement of Section 170(2) of the Code.
220. The right of the accused with regard to .
disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from of the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional rt jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of the 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 the investigation and upon which they rely.
221. 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 the 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 bona fide 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 a chance of fair defence, ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 19 particularly when non-production or disclosure of such a document would affect the administration of criminal justice and the defence of the accused .
prejudicially.
222. The concept of disclosure and duties of the Prosecutor under the English system cannot, in our opinion, be made applicable to the Indian criminal jurisprudence stricto sensu at this stage. However, we are of the considered view that the doctrine of of disclosure would have to be given a 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 rt to a fair trial and non-furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon the 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 setback in the facts and circumstances of the case. The accused even did not raise this issue seriously before the trial court." (emphasis supplied)
17. Reference was made to In re v. State of A.P. [Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re v.
State of A.P., (2021) 10 SCC 598 : (2022) 1 SCC (Cri) 100] and it was held that the prosecution is bound to supply the list mentioned and the documents/material taken during the investigation. It was observed:
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 20208. This view was endorsed in a recent three-judge Bench decision of this Court in Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re v. State of A.P. .
[Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re v. State of A.P., (2021) 10 SCC 598 : (2022) 1 SCC (Cri) 100] This Court has highlighted the inadequacy mentioned above, which would impede a fair trial, and inter alia, required the framing of rules by all States and High Courts, in this regard, compelling disclosure of a list containing mention of all materials seized and taken in, of during investigation--to the accused. The relevant draft guideline, approved by this Court, for adoption by all States is as follows : (SCC p. 608, para 21) "21. ... '... 4. Supply of documents under Sections 173, rt 207 and 208CrPC.--(1) Every accused shall be supplied with statements of witnesses recorded under Sections 161 and 164CrPC and a list of documents, material objects and exhibits seized during the investigation and relied upon by the investigating officer (IO) in accordance with Sections 207 and 208 CrPC.
Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the investigating officer."
209. In view of the above discussion, this Court holds that the prosecution, in the interests of fairness, should as a matter of rule, in all criminal trials, comply with the above rule, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The presiding officers of courts in criminal trials shall ensure compliance with such rules.
18. This judgment was followed by the Bombay High Court in Dr Sublendu Prakash Diwakar vs State of Maharashtra 2023:BHC-AS:37405 and it was held that the Court can exercise ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 21 the power under section 91 of Cr.P.C. even at the stage of framing of charge. It was observed:
.
"16 In the wake of the evolution of the above principle of law it is now imperative for the prosecution, as a matter of rule, in all criminal trials to comply with Rule 4 of the Draft Guidelines approved by the Apex court to be adopted by all States and furnish the list of statements, documents, material objects and exhibits, which are not relied upon by of the Investigating Offcer and the duty is cast upon the presiding officer of the court in criminal trials to ensure compliance with the Rules.
Needless to state once a list is furnished, it is open for the rt accused to file an application under Section 91 of Cr.P.C. seeking the production of such documents and in such a contingency the trial Court by exercising its discretion having regard to the rule of relevance in the context of the accused's right of defence, shall consider the application.
If the document or material is relevant and does not merely have a remote bearing on the defence, its production may be directed, but if it is of the opinion that an application is preferred to delay the proceedings such request can be declined.
Prosecution shall as a matter of rule of fairness ensure the compliance of the above stipulations.
17 It is in the backdrop of the above exposition of the law on the right of the Accused to fair trial as it surfaces through several provisions in the Code including Section 207, the impugned order will have to be tested.
Section 91 of the Cr.P.C. though having been held not to be availed at the stage of framing of charge, the exercise of such power has been justified during the trial, even if such document is not part of the charge sheet and the Apex Court in case of Nitya Dharmananda Alias K. Lenin and Anr vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda and Anr, 3 (2018) 2 SCC 93, by relying upon ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 22 the decision in the case of State of Orissa vs. Debendra Nath Padhi. (2005) 1 SCC 568, has ruled as under :
8. "Thus, it is clear that while ordinarily the court .
has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/ prosecutor, the Court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-
of sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge."
rt 18 In the facts of the present case, the application was preferred under Section 91 read with 311 of the Cr.P.C. by the accused as the documents/materials furnished by the accused to the Investigating Offcer were not fled along with the charge sheet and a specifc accusation was levelled that these documents are deliberately withheld, which were provided by him during the course of the investigation and they are crucial in demonstrating that the allegations made by the complainant are false, frivolous and an afterthought.
According to the learned counsel Mr. Siddhesh Bhole, the material produced is indispensable to the issue of framing of charge and it is of sterling quality, which has the potential of exonerating the accused.
The Application also prayed for a direction to the Investigating Officer to provide a list of unrelied documents/material seized during the course of the investigation and reliance was placed on the decision in the case of Nithya (supra). The informant relied upon the decision in the case of Debendra Nath Padhi to support the submission that at the stage of framing of charge, Section 91 cannot be invoked seeking the production of documents to prove his innocence.
xxxxxxx ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 23 20 In the wake of the decision of the Apex Court in the case of Rukmini (supra) and Nithya (supra), the exercise of power under Section 91 would be justified at the stage of .
framing of charge provided the court is satisfied that the material available investigator which was not made part of the charge sheet has a crucial and significant bearing at the stage of framing of charge. Ordinarily, the court has to proceed on the basis of the material produced with the charge sheet, at the stage of framing of the charge, but if the Court is satisfied that there is the material of sterling of quality, which has been withheld by the Investigator/Prosecutor then the court is not debarred from summoning or relying upon the same even if the document is not part of the charge sheet. The word of rt caution expressed is the right under Section 91 cannot be invoked sans the satisfaction of the Court at the stage of framing of charge.
21 It is the specifc case of the Petitioner that he has furnished several documents to the Investigating Officer and the list of documents furnished included the relevant extract of WhatsApp and messages exchanged between the Accused and the Complainant, relevant photographs, fight and hotel reservations, to demonstrate the consensual relationship between the couple. The bank statements reflect the amount transferred to the complainant and by furnishing the documents the Petitioner attempted to dispel the case of the prosecution of forcible sexual intercourse and instead intended to plead a case of a consensual relationship between two adults."
19. It was laid down by this Court in State of H.P. vs. Deepak Rai 2022:HHC:16376 that the accused is required to be given a fair opportunity to prove his innocence and the ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 24 application under Section 91 Cr.PC can be made at any stage. It was observed:
.
"5. It is settled that the accused is required to be afforded a fair opportunity to prove his or her innocence and application under Section 91 Cr.P.C. can be made at any stage of the trial and the scope of Section 91 Cr.P.C. cannot be restricted only to documents on which prosecution relies and filing of this application cannot be restricted to of the stage contemplated in Section 233 and 243 of Cr.P.C., but this Section empowers the Court to ensure production of any document or other thing 'necessary or desirable' for the purpose of any investigation, inquiry, trial or other rt proceedings under the Code by issuing summon or written order to those in possession of such materials.
6. Keeping in view the defence taken by accused persons in the main case, it is apparent that documents/material asked to be preserved and summoned in the Court is 'desirable and necessary' for the purpose of fair and transparent trial.
7. Impugned order is in consonance with the ratio of pronouncements of the Supreme Court including V.K. Sasujaka vs. State Rep. by Superintendent, (2012) 9 SCC 771;
and State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568, and pronouncements of this High Court in State of Himachal Pradesh vs. Manohar Lal, ILR 2019 (IV) HP 1263/2020 (1) Him. L.R (HC) 468; Ishwar Dass vs. The State of Himachal Pradesh, ILR 2018 (II) HP 530, following the judgments passed by the Supreme Court."
20. Therefore, once it was brought to the notice of the Court that some relevant evidence was collected and withheld, the Court was bound to requisition the same and thereafter determine its intrinsic worth.
::: Downloaded on - 10/01/2024 20:35:13 :::CIS 2521. The learned Trial Court held that the possibility of intimidating the victim or her being under threat or coercion .
after nine months of the incident could not be ruled out. The accused can only rely upon the evidence, which is of sterling and unimpeachable quality and the statement would not fall within the meaning of sterling and unimpeachable quality. I am afraid of that the learned Trial Court erred in rejecting the application on this ground. When the police had recorded the statement and had rt also filed an application for recording the statement of the victim under Section 164 Cr.P.C., the quality of the evidence was unimpeachable. Had the statement and application been placed on record, the learned Trial Court could not have refused to consider the same on the ground that it was not unimpeachable and sterling quality. Therefore, the application could not have been dismissed on the grounds that the evidence was not of sterling and unimpeachable quality.
22. In view of the above, the order passed by the learned Trial Court dated 08.06.2022 is set aside, and the application under Section 91 of Cr.P.C. is allowed. The prosecution is directed to file the supplementary statement of the victim, as well as, the application filed by her and the Investigating Officer before the ::: Downloaded on - 10/01/2024 20:35:13 :::CIS 26 Court for recording the statement of the victim under Section 164 Cr.P.C.
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23. Consequently, the order framing the charge also stands set aside. The matter is remitted to the learned Trial Court for consideration of the material afresh in view of the subsequent statement of the victim and the application filed by her and the of Investigating Officer.
24. rt It is expressly made clear that it will be open for the learned Trial Court to assess the intrinsic worth of the statement and the application and no opinion is being expressed by this Court regarding the same.
25. The parties through their counsel are directed to appear before the learned Trial Court on 18.01.2024.
(Rakesh Kainthla) Judge 08th January, 2024 (Saurav Pathania) ::: Downloaded on - 10/01/2024 20:35:13 :::CIS