Bombay High Court
Ramesh Shivji Upadhyay vs Central Government Of India Through on 18 July, 2012
Author: A.R.Joshi
Bench: A.M.Khanwilkar, A.R.Joshi
1 2802.11
SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2802 OF 2011
Ramesh Shivji Upadhyay ...Petitioner
Versus
Central Government of India through
National Investigation Agency ...Respondents
......
Ms.S.D.Khot, amicus curiae.
Ms.Rohini Salian, Spl.P.P. for U.O.I.
Ms.M.H.Mhatre, A.P.P. for Respondent-State.
ig ......
CORAM:- A.M.KHANWILKAR AND
A.R.JOSHI, JJ.
DATED:- JULY 18, 2012.
P.C.
1. Heard learned amicus curiae and the Special Counsel for the respondents.
2. Two reliefs have been claimed in this petition received through jail.
The first relief is to direct the respondents to hand over the mobile set of the petitioner which was recovered from him. The second relief is to direct the respondents to supply copy of the Narco-Analysis test report pertaining to the petitioner.
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3. As regards the first relief, we fail to understand as to how the Court can accede to that relief when the petitioner is in jail. It is not the case of the petitioner that the mobile set should be handed over to some relative of the petitioner to be carried outside the jail. In any case, since the mobile set has been recovered from the petitioner by the police and is subject matter of pending trial, it cannot be handed over to the petitioner till the conclusion of the trial or until an order for return of property is passed by the appropriate Court. We are, therefore, not inclined to accede to the first relief claimed by the petitioner.
4. As regards the second relief of supplying him the Narco-Analysis test report, the Special Counsel for the respondents states that the prosecution is not relying on the said document at all. Learned amicus curiae submits that whether the prosecution relies on the said document or otherwise, is obliged to supply copy thereof to the petitioner since it was obtained during the course of investigation carried out in connection with the offence for which the petitioner has been detained. The learned amicus curiae placed reliance on Section 173 and Section 207 of the Code of Criminal Procedure SQP 2/5 ::: Downloaded on - 09/06/2013 18:49:56 ::: 3 2802.11 to contend that in view of the expansive language of Section 207(v) whether the prosecution relies on the document or not, is obliged to supply the same to the petitioner when demanded. To buttress this argument, reliance is placed on the decision of the Apex Court in the case of Sidhartha Vashisht @ Manu Sharma vs. State (NCT Of Delhi) reported in (2010) 6 SCC 1, in particular, dictum in paragraphs 217 till 221 thereof. The argument though attractive at the first blush, will have to be stated to be rejected. The decision pressed into service does not specifically deal with the question that arises before us. The question that needs to be addressed by us is: whether the petitioner, being accused, can insist for furnishing document which the prosecution does not intend to rely in the course of the trial. Section 173 predicates that the Investigating Officer after completion of investigation is expected to file police report and produce all the relevant documents on which the prosecution would rely and have been collected during the course of investigation. Section 207 stipulates that once such police report is filed that should be made over to the accused free of cost along with all the documents accompanying thereto. Section 207(v) which has been pressed into service refers to any other document or relevant extract forwarded to the Magistrate "with the police report under Section SQP 3/5 ::: Downloaded on - 09/06/2013 18:49:56 ::: 4 2802.11 173(5)" and not all the documents which may have become available during the investigation to the Investigating Officer. The reported decision, in our opinion, is not an authority on the proposition that even the document, which is not relied by the prosecution, should be furnished to the petitioner. Be that as it may, if the petitioner is interested in getting copy of the said document, is free to pursue the matter in any other permissible manner. Further, if the petitioner feels that the said report is in his favour, he is free to use the same as his defence including examining the expert who has given the said report as defence witness. We express no final opinion in that behalf. Suffice it to observe that the petitioner cannot seek direction from this Court against the prosecution or the Investigating Officer to furnish the Narco-Analysis test report in question.
4. Hence, no case for interference is made out. The Petition is dismissed.
5. The Court expresses word of gratitude for the able assistance extended by the learned amicus curiae to espouse the cause of the petitioner.
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6. Copy of this order be forwarded forthwith to the petitioner who is in jail, for information.
(A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)
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