Karnataka High Court
Sri Sandeep Gururaj vs State Of Karnataka on 24 August, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.4614 OF 2023
BETWEEN:
SRI. SANDEEP GURURAJ
SON OF S.V. GURURAJ
AGED ABOUT 42 YEARS
PRESENTLY RESIDING AT
B-04 V.K. RESIDENCY
DR. SHIVARAMKARANTH ROAD,
CHIKKALSANDRA
BANGALORE 560 061.
... PETITIONER
(BY SRI. GOUTHAM SHREEDHAR BHARADWAJ, ADV.)
AND:
1. STATE OF KARNATAKA
STATION HOUSE OFFICER
CUBBON PARK P.S.
BENGALURU - 560 001
REP. BY SPP.
HIGH COURT BUILDING
BANGALORE - 01.
2. M/S LEGACY GLOBAL PROJECTS LTD.,
HAVING OFFICE AT #333,
THIMMAIH ROAD
BANGALORE 560 052
REPRESENTED BY ITS
2
AUTHORIZED SIGNATORY
SRI NATESH KUMAR.
... RESPONDENTS
(BY SRI. JAGADESSHA B.N., ADDL. SPP FOR RESPONDENT NO.1.
SRI. SANDESH CHOUTA, SR. COUNSEL REPRESENTING SRI. SUNIL
KUMAR PATEL, ADV. FOR RESONDENT NO.2.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 24.2.2023
PASSED BY THE LEARNED III ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE IN C.C. NO.8330 OF 2021 ARISING OUT OF CRIME
NO.14/2020 PRODUCED AS ANNEXURE A AND CONSEQUENTLY
DIRECT RESONDENT NO.1 TO PRODUCE ALL THE INVESTIGATING
DOCUMENTS, VIDEO GRAPHED MATERIALS, HAND WRITTEN
STATEMENT BEORE THE MAGISTRATE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 22.08.2023, COMING ON FOR
PRONOUNCEMENT THIS DA, THROUGH VIDE CONFERENCNG AT
DHARWAD BENCH, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question an order dated 24-02-2023 passed by the III Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.8330 of 2021 arising out of Crime No.14 of 2020.
2. Heard Sri Goutham Sreedhar Bharadwaj, learned counsel appearing for petitioner, Sri. Jagadeesha B.N., learned Additional 3 State Public Prosecutor appearing for respondent No.1 and Sri. Sandesh Chouta, learned senior counsel representing learned counsel Sri. Sunil Kumar Patel appearing for respondent No.2.
3. Facts adumbrated are as follows:
The complainant is the 2nd respondent, the petitioner accused No.1. Several grievances/allegations galore between the accused No.1 and the 2nd respondent-complainant which arose out of retainership agreement dated 14-07-2016 and a memorandum of understanding dated 20-12-2017 which concerns certain transactions. The subject agreement and the memorandum of understanding have been subject matter of several proceedings between the two i.e., the Company and the accused which had all become subject matter of Criminal petitions 2866 of 2022 and 5148 of 2023 and both those criminal petitions have been turned down.
The issue in the subject lis does not concern the merit of the matter or rejection of the criminal petition challenging the proceedings in C.C.8330 of 2021. What drives the petitioner to this Court in the subject petition is an order passed by the learned Magistrate rejecting an application filed by the petitioner under Section 207 of 4 the Cr.P.C. seeking production of certain documents and electronic evidence.
4. The learned counsel for the petitioner Sri Goutham Shreedhar Bharadwaj would vehemently contend that the petitioner is entitled to certain documents in his defence before the charges are framed against him as all the petitions filed calling in question C.C.No.8330 of 2021 have failed. He would submit that the documents though pertain another crime number, they are arising out of the very same set of facts, albeit by a different complainant, the issue in the lis is completely intertwined with other complaints.
It is his submission that therefore the documents are necessary for his defence.
5. Per-contra, the learned senior counsel Sri.Sandesh Chouta representing the 2nd respondent-Complainant would seek to contend that the petitioner is seeking certain documents pertaining to some other crime number and not the crime number which results in registration of the impugned C.C.No.8330 of 2021. He would submit that an accused may be entitled to documents pertaining to that crime number, but not any other crime number.
5He would emphasize on the fact that the petitioner is filing the subject application only to protract the proceedings, as similar application filed by his wife has been turned down by the concerned Court.
6. The learned Additional Special Public Prosecutor Sri.B.N.Jagadeesh would also toe the lines of the learned senior counsel for the 2nd respondent in seeking dismissal of the petition by contending that it is always open to the petitioner to produce those documents, as they are public documents that he is seeking, in a manner known to law.
7. I have given my anxious consideration to the submissions made by the respective learned counsel appearing for the parties and have perused the material on record.
8. Before embarking upon consideration of the issue in the lis, I deem it appropriate to notice Section 207 of the Cr.P.C. and its interpretation by the Apex Court. Section 207 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 6 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 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."
(Emphasis supplied) Section 207 of the Cr.P.C. deals with supply of copies of police report and other documents to the accused. The section contains 5 7 postulates of what should be furnished to the accused.
Interpretation of those postulates need not detain this Court for long or delve deep into the matter. The Apex Court in the case of CRIMINAL TRIALS GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES, IN RE v. STATE OF ANDHRA PRADESH1 interpreting Section 207 of the Cr.P.C. in a suo motu proceeding under Article 32 of the Constitution of India noticed common deficiencies which occur in the course of a criminal trial and certain practices adopted by trial Courts in criminal proceedings. The cause for such anomaly was considered and a direction was issued to adopt uniform practice. The Apex Court has held as follows:
"11. The Amici Curiae pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This Court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208 CrPC, the Magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under CrPC ["91. Summons to produce 1 (2021) 10 SCC 598 8 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."] for their production during the trial, in the interests of justice. It is directed accordingly; the Draft Rules have been accordingly modified. [Rule 4(i)]."
(Emphasis supplied) The Apex Court accepts the contention of the Amicus therein that in a trial the accused are only to be furnished with the list of documents and statements which the prosecution relies on, as also the fact that the accused cannot be kept in the dark about other materials which the police or prosecution may have in their possession. Those documents may help the accused in getting themselves absolved of the crime. The Apex Court opines that while furnishing list of statements, documents and material objects 9 under Sections 207 and 208 of the Cr.P.C. the Magistrate shall ensure that list of other materials even though not relied on, should be furnished to the accused, as they would be in the realm of a fair trial.
9. The Apex Court, in a later judgment, again interpreting Sections 207 and 91 of the Cr.P.C. in the case of MANOJ AND OTHERS V. STATE OF MADHYA PRADESH2 has held as follows:
"184. In Manu Sharma, in the context of policy diaries, this court noted that "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". This object is rendered entirely meaningless if the police fail to maintain the police diary accurately. Failure to meticulously note down the steps taken during investigation, and the resulting lack of transparency, undermines the accused's right to fair investigation; it is up to the trial court that must take an active role in scrutinizing 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.
185. 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 analyzing 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 Section 91 and 243 CrPC as done in Manu Sharma, is important to refer to:2
2022 SCC OnLine SC 677 10 "217. ..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, cross-examination or the production of any document or other thing for which the court has to pass a reasoned order."
186. 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, as follows:
"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 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.11
219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub-section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression "documents on which the prosecution relies" are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.12
220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.
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 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 chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.13
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 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 non-furnishing 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 setback in the facts and circumstances of the case. The accused even did not raise this issue seriously before the trial court.
(emphasis supplied)
187. In this manner, the public prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the accused's right to fair investigation, when faced with the might of the state's police machinery.
188. This view was endorsed in a recent three judge decision of this court in Criminal trials guidelines regarding Inadequacies and Deficiencies, in re v. State of Andhra Pradesh. 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, during investigation-to the accused. The relevant draft guideline, approved by this court, for adoption by all states is as follows:
"4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CR.PC 14 Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.PC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O) in accordance with Sections 207 and 208, Cr. PC.
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."
189. 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."
(Emphasis supplied)
10. In the light of the aforesaid judgments of the Apex Court, what is necessary is to be noticed is, the prayer that is sought by the petitioner in the application before the concerned Court. The petitioner seeks the following documents:
"7. Apart from withholding the aforesaid statements and videographic recording, the Investigating officer is strengthening the case of prosecution by not producing curcial records of the 15 Colon/photocopy of the following documents produced in Crime NO.257/2018 now converted CC No.7559 of 2019 , as:
i. PF No.168/2018 dated 29.12.2018 referred to Sl.No.1-9 ii. PF No.1 of 2019 dated 01.01.2019 iii. PF No.2 of 2019 dated 02.01.2019
8. It is pertinent to state that Investigation in both crimes (i.e. the present crime bearing No.14/2020 and Crime No.257 of 2018) are being investigated by the Cubbon Park Police Station itself. Despite the said fact the colon copies of the electronic records seized form Accused No.1 have not been produced and deliberately been withheld.
9. It is submitted that several Hon'ble High Court and the Hon'ble Supreme Court in various decisions held that fair and just investigation is a hallmark of any investigation. Further it is also pertinent to state that the duty of the Investigating Officer is not to strengthen the case of prosecution by withholding the evidence collected by the prosecution by the accused during investigation."
The application clearly narrates that investigation in both the crimes, crime No.14 of 2020 and crime No.257 of 2020 are being investigated by the Cubbon Park police itself. Therefore, the investigation is intertwined and the petitioner would require the said documents for his defence. This is rejected by the learned 16 magistrate by the impugned order by rendering the following reasons:
"8. A plain reading of the above mentioned provision and the prosecution papers it appears that the investigation officer has furnished the charge sheet which is voluminous. After receipt of charge sheet the entire prosecution papers have been furnished to accused persons as contemplated u/s 207 of Cr.P.C., which is not in dispute.
9. According to the accused No.1 during the investigation the I.O. has recorded the statement of the accused No.1 and the accused No.1 had also submitted the written statement before the I.O. which is not produced by the I.O., which is not admitted by the I.O. According to I.O. at the time of recording of statement of the accused No.1 through handy cam the memory card was not inserted, so there is video recording as alleged by the accused No.1. Since the I.O., has specifically denied the contention of the accused No.1, so the question of directing the I.O. to produce the documents/articles/statements as contended by the accused No.1. Apart from that, the accused No.1 has specifically pleaded that; the I.O. has produced the documents in Crime No.257/2018 of Cubbon Park Police, now the same is registered as C.C. No.7559/2019. These facts are not in dispute, so if at all the said documents which are produced by the I.O. in Crime No.257/2018 are relevant to decide this case, then the accused can produce the certified copies of the same or to summon those documents from the said case. In view of these reasons, I have no reasons 17 to allow the application. Thus, the above point is answered in the Negative and I proceed to pass the following;
ORDER Application filed on behalf of accused No.2 under Section 207 of Cr.P.C. is hereby rejected."
The rejection of the application under Section 207 of the Cr.P.C. so filed by the petitioner runs counter to what the Apex Court has observed and elucidated in the afore-quoted judgments interpreting Section 207 of the Cr.P.C. An accused, in the normal circumstance, would not be entitled to the documents of a crime to which he is a stranger. In the case at hand, the petitioner is not a stranger to both Crime No.14 of 2020 and 257 of 2020; neither the investigation is alien to the petitioner, as the Cubbon Park police station is investigating into both the crimes and both the crimes have facts intertwined between themselves. It is in that light the application of the petitioner should have merited consideration.
Supply of documents under Section 207 of Cr.P.C. to the accused is held to be a facet of fair trial enshrined in Article 21 of the Constitution of India by the Apex Court in the case of P. 18 GOPALKRISHNAN V. STATE OF KERALA3. The Apex Court has held as follows:
"17. On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the 1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. Section 207 reads thus:
"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 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 3 (2020)9 SCC 161 19 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."
As regards the statements, the first proviso enables the Magistrate to withhold any part thereof referred to in clause (iii), from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in sub-section (6) of Section 173. However, when it comes to furnishing of documents submitted by the investigating officer along with police report, the Magistrate can withhold only such document referred to in clause (v), which in his opinion, is "voluminous". In that case, the accused can be permitted to take inspection of the document concerned either personally or through his pleader in Court. In other words, Section 207 of the 1973 Code does not empower the Magistrate to withhold any "document" submitted by the investigating officer along with the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of "statements" referred to in sub- section (6) of Section 173 of the 1973 Code.
18. Be that as it may, the Magistrate's duty under Section 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the section.
We may usefully advert to the dictum in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 :
(2014) 2 SCC (Cri) 86] wherein it was held that : (SCC p. 123, para 47) "47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and 20 therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court."
(emphasis supplied)
19. In yet another case of Tarun Tyagi v. CBI [Tarun Tyagi v. CBI, (2017) 4 SCC 490 : (2017) 2 SCC (Cri) 428] , this Court considered the purport of Section 207 of the 1973 Code and observed as follows : (SCC p. 495, para 8) "8. Section 207 puts an obligation on the prosecution to furnish to the accused, free of cost, copies of the documents mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report under Section 173(5) of the Code. Such a compliance has to be made on the first date when the accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the accused with the copy thereof, the Magistrate can allow the accused to inspect it either personally or through pleader in the Court."
20. It is well-established position that when the statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences as expounded in Nelson Motis v. Union of India [Nelson Motis v. Union of India, (1992) 4 SCC 21 711 : 1993 SCC (L&S) 13] . On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible.
21. Be that as it may, furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. In Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] , this Court expounded thus : (SCC pp. 85-86, paras 218-21) "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 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.
219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could 22 be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub-section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression 'documents on which the prosecution relies' are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.
220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within 23 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.
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 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 chance of fair defence, particularly when non- production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially."
(Emphasis supplied)"
Therefore, the reasons rendered by the concerned Court, apart from it being bald, laconic and perfunctory, runs counter to the judgments of the Apex Court. The submission of the learned senior counsel for the 2nd respondent and the learned Additional State Public Prosecutor that the petitioner is not entitled to the documents that he is seeking for is unacceptable. The petitioner is held entitled to those documents that he has sought for in the 24 application. Since the documents contain certain electronic material, it is to be furnished, to the petitioner in terms of what the Apex Court, has directed in P. GOPALKRISHNAN (supra).
11. The only other submission which borders on the apprehension of the learned senor counsel for the 2nd respondent is that the petitioner is only wanting to protract the proceedings. The submission though is acceptable, cannot mean that the relief that the petitioner is seeking should be denied on the said submission.
The apprehension of the complainant can always be alleviated by imposing restrictions/conditions on such protraction of proceedings.
The petitioner, though would become entitled to the documents, cannot on the basis of the said documents ad nauseam seek time before the concerned Court. The petitioner will have to complete the arguments before charge within a time frame that the concerned Court would fix.
12. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.25
(ii) The order of the concerned Court dated 24-02-2023 passed in C.C.No.8330 of 2021 stands quashed.
(iii) The petitioner is held entitled to the documents/statements that he has sought for and the prosecution/Investigating Officer investigating either of the crime Nos.14 of 2020 or 257 of 2018 shall furnish the documents that the petitioner is now seeking for, except owing to its impossibility of compliance.
(iv) The concerned Court shall fix regular dates for conclusion of the arguments before charge by the petitioner-accused No.1 and shall see to that he would not be permitted to seek adjournments which would border upon ploy to protract the proceedings.
I.A.No.2/2023 stands disposed as a consequence.
Sd/-
JUDGE bkp CT:MJ