Gujarat High Court
Jaydevsinh @ Rajendrasinh Bhagwatsinh ... vs State Of Gujarat on 7 October, 2023
NEUTRAL CITATION
R/SCR.A/9979/2019 ORDER DATED: 07/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9979 of 2019
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JAYDEVSINH @ RAJENDRASINH BHAGWATSINH JETHVA (DARBAR)
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1,2,3,4
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/10/2023
ORAL ORDER
1. By way of present application, under Section 482 of the Code of Criminal Procedure, 1973 and under Article 226/227 of the Constitution of India, the applicants challenge the impugned order dated 05.08.2019 passed by the learned 6 th Additional Sessions Judge, Jamnagar on an application below Exh.49 preferred by the present applicants in Sessions Case No.103 of 2017 under Section 91 of the Code of Criminal Procedure, 1973, dismissing the application and refusing to call for the documents as sought for by the applicants from the investigating agency.
2. Brief facts of the case are as under :
2.1 An FIR came to be lodged being CR-I No.38 of Page 1 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 2017 before the Panch 'B' Division Police Station, Jamnagar, initially for the offences punishable under Sections 365, 323, 506(2) and 114 of the IPC against the applicants. Thereafter, Section 306 was added subsequently. When incident was happened on 22.04.2017, her history was recorded by the doctor and same was informed to the investigating agency, whereby the investigating officer had recorded her first statement and thereafter the case was registered as Janva Jog Entry No.18 of 2017. Thereafter, on 23.04.2017, she lodged the above FIR. On 27.04.2017, she died due to the pouring diesel on her body and bodily injuries, charge under Section 306 of the IPC came to be added subsequently.
2.2 The investigation was over and charge-sheet is filed and ultimately, it has culminated into Sessions Case No.103 of 2017 before the learned Sessions Court.
2.3 The charge is framed and trial has commenced.
2.4 On 05.07.2019, the applicants filed an application below Exh.49 under Section 91 of the Code seeking production of documents i.e. copy of Janva Jog No.18/2017, the statement of deceased prior to the date of lodging of FIR which was recorded on 22.04.2017 and other documents relating to police investigation in respect of above Janva Jog Page 2 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined entry which are mentioned in the application below Exh.49 of the applicants as the same were not supplied to the applicants by the investigating agency and the said documents are relevant for trial. The said application is rejected by the learned trial Court vide impugned order dated 05.08.2019 and thereby refused to call for the said documents.
2.5 Hence, this application.
3. Heard learned advocates.
4.1 Learned advocate for the applicants has submitted that the impugned order is passed without appreciating the stage of proceedings. He has submitted that the learned trial Court has not appreciated the fact that documents as sought for by the applicants from the custody of the investigating agency are relevant for finding the truth in the allegation made by the prosecution against the applicants. He has submitted that the learned trial Court has misinterpreted the provisions of Sections 207 and 208 of the Code, which are not applicable to the facts of the case. He has submitted that the applicants have never made any grievance of non-
supplying of documents by the investigating agency along with charge-sheet papers. However, he has submitted that the Page 3 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined only grievance of the applicants was that at the time of filing of charge-sheet before the learned trial Court, the investigating agency, though available, had not produced the copy of Janva Jog No.18/2017, the statement of deceased which was recorded on 22.04.2017 and other documents. He has submitted that the said documents are relevant for trial even though the prosecution has not produced the same before the learned trial Court.
4.2 He has submitted that the said documents satisfy the tests of relevance and desirability as laid down in Section 91 of the Code. He has submitted that the necessity and desirability would have to be seen with reference to the documents and not at the stage when a prayer is made for production. He has submitted that if the documents sought by the applicants are able to throw some light on the dispute, those documents are certainly necessary and desirable to be brought on record the correct facts. He has submitted that if such documents will come on record, no prejudice would cause to the victim or the prosecution. He has submitted that this application may be allowed.
4.3 In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in the case of Manoj and others versus State of Madhya Pradesh reported in Page 4 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined (2023) 2 SCC 353.
5. Per contra, learned APP Mr. Chintan Dave for the State has submitted that the learned trial Court has rightly rejected the application Exh.49 filed by the applicants. He has submitted that the learned trial Court has considered the various provisions of law and rejected the application. He has submitted that there is no need to look into the documents as called for by the applicant while considering the trial. He has submitted that all the documents which were produced before the learned trial Court have already been supplied to the applicants. He has submitted that the applicant cannot call for the documents which are not the part of charge-sheet or which are not relied upon by the prosecution. He has submitted that the documents which are called for by the applicants, are the part of investigation and the same are not permitted to be supplied to the applicants. He has submitted that even the learned trial Court does not want to see the said documents for fair trial. He has submitted that this application may be dismissed.
6.1 I have heard rival submissions made by the learned advocate for the respective parties. I have perused the papers available on record. I have considered the impugned order passed by the learned trial Court.
Page 5 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 6.2 At this stage, the provisions of Section 91 of the Code of Criminal Procedure, 1973 is required to be reproduced as under :
"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 Page 6 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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."
6.3 Recently, the Hon'ble Apex Court has in the case of Manoj (supra) observed and held as under :
" 199. A public prosecutor (appointed under Section 24 CrPC) occupies a statutory office of high regard. Rather than a part of the investigating agency, they are instead, an independent statutory authority who serve as officers to the court. 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, (1999) 7 SCC 467 further held that :Page 7 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023
NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined "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 force and make it available to the accused."
200. In Siddharth Vasisht @ Manu Sharma v. State of NCT Delhi, (2010) 6 SCC 1 (hereafter Manu Sharma) it was concluded that :
"187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, 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 Page 8 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined lax in any of his duties as against the accused."
201. In Manu Sharma, the appellants in question had argued that the right to fair trial included a wide duty of disclosure on the public prosecutor, such that non- disclosure of any evidence whether or not relied upon by the prosecution must be made available to the defence. This court considered Section 207 and 208 CrPC, Rule 1677 of the Bar Council of India Rules (which is limited to evidence on which 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 defense. 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 Page 9 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined independent field, to ensure that investigation is fair and does not hamper the individuals freedom, except in accordance with law, i.e., ensure adherence to the rule of law.
202. Relevant extracts that merit repetition:
"199. It is not only the responsibility of the investigating agency but as well as 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 the 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 a biased mind and every effort should be made to bring the guilty to law as nobody stands above law Page 10 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined dehors his position and influence in the society.
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201. 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 expansive power of the police to make investigation. These well- established principles have been stated by this Court in Sasi Thomas v. State [(2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72] , State (Inspector of Page 11 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined Police) v. Surya Sankaram Karri [(2006) 7 SCC 172 : (2006) 3 SCC (Cri) 225] and T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048].
202. In 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 preservation of the fundamental right of the 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 receive in accordance with law is not denied to him contrary to Page 12 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined law."
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 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 testimony of the police officers.
204. 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 Page 13 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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 accuseds 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.
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 analyzing call detail records and involvement in Nehas 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:
"217. ..Section 91 empowers the court to summon production of Page 14 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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."
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, as follows:
"218. The liberty of an accused Page 15 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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 Page 16 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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 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 Page 17 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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 Page 18 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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 Page 19 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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 Page 20 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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.
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 Page 21 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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).
207. In this manner, the public prosecutor, Page 22 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined and then the trial courts scrutiny, both play an essential role in safeguarding the accuseds right to fair investigation, when faced with the might of the states police machinery.
208. 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, (2021) 10 SCC 598 . 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:
"21. ... "...4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CR.PC. - (1) Every Accused shall be supplied with statements of witness Page 23 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023 NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 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."
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."
Page 24 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023NEUTRAL CITATION R/SCR.A/9979/2019 ORDER DATED: 07/10/2023 undefined 6.4 Considering the facts and circumstances of the case as well as provisions of law vis-a-vis the observations made in the recent decision of the Hon'ble Apex Court in the case of Manoj (supra), this Court finds that the learned trial Court has committed an error in passing the impugned order.
The documents as asked for by the applicants, are necessary or desirable for the purpose of trial and no prejudice would be caused to the other side. This application therefore needs to be allowed.
7. For the reasons recorded above, the following order is passed :
7.1 This application is allowed.
7.2 The impugned order dated 05.08.2019 passed below Exh.49 in Sessions Case No.103 of 2017 is quashed and set aside.
7.3 Resultantly, the application dated 05.07.2019 below Exh.49 in Sessions Case No.103 of 2017 is allowed.
8. Rule is made absolute accordingly.
Direct service is permitted.
(SANDEEP N. BHATT,J) M.H. DAVE Page 25 of 25 Downloaded on : Tue Oct 10 20:39:48 IST 2023