Madhya Pradesh High Court
Harendra Singh vs The State Of Madhya Pradesh on 23 August, 2018
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C No. 3389/2017
(Harendra Singh vs. State of M.P.)
Gwalior, Dated 23/8/18
Shri A.S. Rathore, Advocate for the petitioners.
Shri S.S. Dhakad, Public Prosecutor for the
respondent/State.
The inherent powers of this court u/S. 482 CrPC are invoked by petitioner/accused to assail the interlocutory order dated 23/1/17 (Annexure P/1) by which an application u/S. 91 CrPC preferred by the petitioners/accused seeking production of entire case diary in crime No. 50/14 P.S. Derolipar District Datia has been rejected. The trial Court while rejecting the said application assigned the reason that no material collected during investigation except the one permitted u/S. 173 CrPC can be supplied to the accused by invoking section 91 of CrPC.
Learned counsel for petitioner submits that the aforesaid FIR was registered on 28/5/14 bearing crime No. 50/14 (Annexue P/2) in which the petitioner was the complainant, alleging offences punishable u/Ss. 147, 148, 149, 307 and 302 of IPC against six named accused. The investigation was conducted by Dy.S.P. Seondha District Datia which is evident from Annexure P/3 dated 25/7/14 in which certain statements of the witnesses were recorded. However, the said inquiry did not see light of the day as the said Investigating Officer expressed his inability to conclude the inquiry. Thereafter, it is submitted that Charge-sheet (Annexure P/4) was filed where petitioner was shown as one of the accused alongwith seven other co-accused. It is urged by the petitioner that in the aforesaid incomplete inquiry vide Annexure P/3 the statements of the petitioner and as well as other alleged 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C No. 3389/2017 (Harendra Singh vs. State of M.P.) eye-witnesses were recorded which did not form part of the charge-sheet filed against the petitioner and therefore, the petitioner moved an application u/S. 91 CrPC for production of case diary so that truth can be revealed.
The scheme of CrPC is such, which recognizes the process of investigation to be a unilateral exercise where accused gets no opportunity of being represented or heard. It is only after filing of charge-sheet when the court takes cognizance of the offences alleged that the copy of charge-sheet is supplied to the accused whereafter process which follows is bilateral in nature where complainant/State and the accused are heard before reaching any conclusion of interim or final nature.
The evidence collected by the prosecution during investigation culminate into preparation and filing of charge-sheet, copy of which is supplied to the accused in terms of Section 207 CrPC. Thus it is obvious that CrPC mandatorily recognizes documents/material to be supplied to the accused as mentioned in section 207 Cr.P.C. For ready reference and convenience section 207 Cr.P.C. is reproduced below:-
"207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C No. 3389/2017 (Harendra Singh vs. State of M.P.) 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court." The provision of Section 91 Cr.P.C. is a part of chapter VII of CrPC and sub chapter "summons to produce". For ready reference and convenience Section 91 CrPC is reproduced below:-
"91. Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority"
A bare perusal of section 91 CrPC clearly reveals that the court has jurisdiction to issue summon for production of documents or things which are necessary and desirable for investigation, inquiry, trial or other proceedings under CrPC.
Learned counsel for the petitioner has not been able to 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C No. 3389/2017 (Harendra Singh vs. State of M.P.) demonstrate that provision of Section 91 CrPC can be invoked for production of documents or material collected during investigation which do not form part of those documents supplied to the accused u/S. 207 CrPC.
However, the inherent powers of this court can be invoked for ensuring free and fair investigation and trial to seek relief which the CrPC does not grant in expressed terms provided there is no expressed or implied bar for grant of such relief.
The object behind every trial is to search the truth and to arrive at correct conclusion on the basis of material and evidence initially collected by the prosecution and thereafter tested on the anvil of examination and cross-examination of witnesses in trial. Thus the ultimate object of a trial is to find out that whether the alleged offence as per the prosecution story actually took place, who is responsible for the same, to what extent and what punishment is liable to be inflicted upon which accused.
This court will test the prayer of the petitioner on principle of fair play equity and justice, since the parameters of yardstick laid down (necessary or desirable) in Section 91 CrPC are very wide and generic in nature.
The apprehension of the petitioner is that if the said material which formed part of the case diary is not produced before the trial court, then his defence may be prejudiced as the petitioner is under the impression that the said material which has not been supplied to him and still formed part of the case diary (in shape of incomplete inquiry report P/3) is of exonerative nature qua the petitioner.
5THE HIGH COURT OF MADHYA PRADESH M.Cr.C No. 3389/2017 (Harendra Singh vs. State of M.P.) The element of prejudice caused to the petitioner will also have to be judged while ascertaining the justifiability of the prayer made by the petitioner u/S. 91 CrPC. If the said document as sought by the petitioner are not supplied to him, then what could be the prejudice caused ?
Learned counsel for the petitioner submits that some of the witnesses whose statements were recorded in the incomplete inquiry (P/3) have been made prosecution witnesses whose statement recorded u/S. 161 CrPC are part of the charge-sheet supplied to the petitioner. In this scenario petitioner can always cross-examine these witnesses and confront them with their earlier statement. However, copy of the earlier statement is not with the petitioner and that may be a hurdle in the path of the petitioner to confront the said witnesses. Thus the petitioner before cross- examination can always request the trial court to direct prosecution to produce the earlier statements (which are part of incomplete inquiry vide P/3), which if made, this court has no manner of doubt, shall be considered on its own merits by the trail court without being influenced by passing of the impugned order and of the petitioner approaching this court.
Petitioner however is further at liberty in regard to the witnesses whose statements recorded u/S. 161 CrPC have not been supplied to him, of seeking permission from the trial court to produce such witnesses as defence witnesses if the petitioner is of the view that these witnesses support his cause.
In view of above, this court declining interference in the impugned order though for reasons distinct from the one assigned 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C No. 3389/2017 (Harendra Singh vs. State of M.P.) by the trial court, disposes of this petition with the aforesaid liberty to the petitioner to make his prayer for production of relevant documents at the approprisate time or in the alternative produce defence evidence as aforesaid.
No cost.
(Sheel Nagu) Judge ojha Digitally signed by YOGENDRA OJHA Date: 2018.08.29 11:52:12 -07'00'