Calcutta High Court (Appellete Side)
Rajendra Prasad Pansari vs Shiv Nath Prasad & Another. ... on 10 January, 2018
Author: Asha Arora
Bench: Asha Arora
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Asha Arora
C.R.R 1167 of 2009
Rajendra Prasad Pansari ........Petitioners
Versus
Shiv Nath Prasad & Another. ........Opposite Parties
For the Petitioners : Mr. Y.S. Dastoor, Adv.
Mr. Manjit Singh, Adv.
Mr. Pratik Mukhopadhyay, Adv.
For the Opposite
Party no. 2 : Mr. Milon Mukherjee, Adv.
Mr. Sandipan Ganguly, Adv.
Mr. Somopriyo Chowdhury, Adv.
Mr. Amitava Mitra, Adv.
Mr. Parag Chaturvedi, Adv.
Heard on : 01.11.2017, 16.11.2017, 05.12.2017,
13.12.2017, 19.12.2017 and
20.12.21017.
Judgment on : 10th January, 2018
Asha Arora, J.:
Aggrieved by an order dated January 12, 2009 passed by the learned Chief Judicial Magistrate, 24 Parganas (South), Alipore in C. Case No. 4693 of 2004 under Section 406/417/420/120B of the Indian Penal Code, the petitioner has preferred the instant application. The operative part of the order under challenge reads as follows:
" The petition dated 24/4/2008 filed by the complainant is disposed of on contest with the direction that the complainant is to submit Form(M) 21 of Criminal Rules and Order along with the documents to be produced at the time of recording evidence under Section 244 Cr.P.C. and supply the copies of document, if not supplied already, to each of the accused. To 7/2/2009 for further evidence of P.W. 1."
It appears from the order impugned that in course of the complainant's evidence before charge, when some documents were sought to be exhibited, objection was raised by the accused on the ground that copies of the documents to be tendered in evidence should be filed by a firisti to enable the accused to inspect the same. By a petition dated April 24, 2008 complainant contended that in a criminal case arising out of a complaint there is no provision in law to file documents to be exhibited by firisti or to supply copies of such documents to the accused.
Mr. Dastoor, learned counsel appearing for the petitioner strenuously argued that in warrant cases instituted otherwise than on a police report section 244 of the Criminal Procedure Code determines the procedure for taking evidence. According to section 244 of the CrPC when the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Learned counsel for the petitioner sought to impress that this statutory provision cannot be hedged by any rule made in exercise of the powers under Article 227 of the Constitution or under the Code of Criminal Procedure. It has been urged that the Calcutta High Court Criminal (Subordinate Courts) Rules 1985 have to be read harmoniously with the statutory provisions and if there be any conflict, the statutory provision shall prevail. Mr. Dastoor submitted that the Criminal Rules and Orders are meant to supplement the statutory provisions of law and are not to be read as in conflict with the law. According to the learned counsel for the petitioner, whether the complainant files a firisti of documents or not, the Court is obliged to take all such evidence as may be produced by the complainant and no rule of procedure can infringe such liberty except that of relevancy and admissibility. It has been canvassed that there is no legal obligation upon the petitioner to supply copies of documents to the accused who can apply for certified copies of the documents after they are admitted in evidence. To buttress his argument Mr. Dastoor placed reliance upon the following decisions:
1. AIR 1970 Supreme Court 962 (The Assistant Collector of Customs, Bombay and another Versus L. R. Melwani and another)
2. 1970 Cri.LJ 553 (Municipal Committee, Amritsar through its Executive Officer Versus Shri Labhu Ram and Others)
3. 1968 Cri.LJ 1411 (Supdt. and Remembrancer of Legal Affairs West Bengal Versus Vimla Dassi and Others)
4. AIR 1969 Calcutta 535 (Ramendra Singh Versus Mohit Choudhury and Others)
5. ILR(1974) 1 Delhi 410 (A.N. Lewis and Another Versus the State)
6. 2016 SCC Online Gujarat 1897 (Union of India Versus State of Gujarat)
7. (1978) 15 ACC 218 Allahabad (Babu Lal Versus State)
8. AIR 1975 Supreme Court 393 (Srilal Shaw Versus State of West Bengal and Others)
9. (1975) 3 Supreme Court Cases 210 (State of U.P. Versus Durga Prasad)
10. (1976) 78 Bombay LR 500 (D. B. Bhappu Versus Parasmal Nemaji Bhimani) Fortifying his submission by the decision reported in 1970(2) Supreme Court Cases 458 in the case of Union of India Versus Col.
J. N. Sinha and Another, Mr. Dastoor argued that the principles of natural justice do not supplant the statutory law but merely supplement it. They can operate only in areas not covered any law.
Mr. Mukherjee, learned counsel appearing for the opposite party no.2 countered that the decision reported in 1970(2) Supreme Court Cases 458 (supra) is distinguishable on facts and is not applicable to the present case wherein, by virtue of section 244 CrPC read with section 3 of the Indian Evidence Act, prosecution is under obligation to produce all the documents on which the prosecution intends to rely in support of its case and in view of section 294 CrPC the particulars of every such document shall be included in a list. Learned counsel for the opposite party no.2 argued that it is a requirement of natural justice and fair trial that copies of the documents sought to be tendered in evidence should be supplied to the accused to enable him to effectively cross- examine the witness. Mr. Mukherjee sought to impress that trial will be inordinately delayed if the accused applied for certified copies of the documents after they are exhibited. Referring to Rule 154 of The Calcutta High Court Criminal (Subordinate Courts) Rules, 1985 learned counsel for the opposite party contended that the aforesaid Rule mandates that all documents filed in court by a party or witness shall be accompanied by a list in Form (M) 21. It has been argued that the procedure of filing documents prior to the same being admitted in evidence has been provided in section 294 of the CrPC the object of which is to facilitate the process of cross- examination and expedite the trial. Mr. Mukherjee urged that the decisions relied upon by the learned counsel for the petitioner are not applicable to the present case which is instituted on a complaint by a private individual whereas the citations referred relate to complaint filed under various Acts by authorised officers of the concerned departments of the government.
The crucial point for determination is whether accused is entitled to copies of documents at the pre-charge evidence stage in a warrant case instituted on a private complaint.
The Criminal Procedure Code makes a clear distinction between cases instituted on a police report and those instituted otherwise than on police report in the matter of supply of copies of documents relied upon by prosecution. In respect of a case instituted on a police report special provisions were made in Section 173(4) and Section 251A(1) for furnishing copies of documents to the accused by the Code of Criminal Procedure (Amendment) Act 1955 but no such corresponding provision was made in cases instituted on a private complaint by virtue of which it can be said that the complainant is bound either by an express provision of law or by necessary implication to furnish to the accused copies of documents produced by him along with the complaint or relied upon in support thereof. True it is that there is no express prohibition in the Code in the matter of supply of copies of documents in complaint cases but such a prohibition must be held to have been intended by the Legislature by reason of introduction of Section 251A in the old Code in cases instituted on a police report and absence of a similar provision in relation to cases instituted on private complaints. In L.R. Melwani's case(supra) the Supreme Court held that the provisions of Section 173 were attracted only in a case investigated by a police Officer under chapter XIV of the Criminal Procedure Code followed up by a final report under Section 173 Cr.P.C. Before the Criminal Procedure Code was amended by the Amendment Act of 1955 there was no difference in the procedure to be adopted in the cases instituted on police reports and in other cases. Till then in all cases irrespective of the fact whether they were instituted on police reports or on private complaints, the procedure regarding enquires or trials was identical. In both type of cases, were two distinct stages i.e., the enquiry stage and the trial stage. But the Amendment Act of 1955 made substantial changes in the procedure to be adopted in the matter of enquiry in cases instituted on police reports. That procedure was set out in section 251(A) of the old Code. But in a case instituted on a complaint and governed by sections 252 and 259 of the Criminal Procedure Code, the position remained as it was before the amendment of the Criminal Procedure Code. It is needless to say that a party to a litigation cannot demand copies of documents from the other side as a matter of right. It is only when law enables him to get the copies from the other side that he can ask for the same. It cannot be said that non supply of copies of documents to the accused at the pre- charge stage will be prejudicial to his interest since it is open to the accused to look into the documents and cross-examine the witnesses before charge if necessary. Mr. Mukherjee's contention that at the pre-charge evidence stage before the documents are tendered in evidence the accused is entitled to copies of documents as a matter of fair play and natural justice is not supported by any precedent or authority. In this context it is significant to refer to the observation of the Supreme Court in the case of Union of India Versus Col J.N. Sinha and another reported in 1970(2) Supreme Court Cases 458 which is as follows:
"It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice."
The ratio of the Judgment of the Supreme Court in Melwani's case (supra) appears to be that the legislature has consciously provided two distinct procedures for trial of two different categories of cases depending upon their origination on the police report or otherwise. The procedure which is prescribed for cases originating on a police report and more particularly the provision of Section 173(4) of the Code cannot be introduced or extended to the trial of the other category of cases which are instituted on a private complaint. The impugned order directing the complainant to supply copies of documents to the accused is clearly contrary to the statutory provisions of the Criminal Procedure Code regarding the procedure prescribed for the trial of warrant cases instituted otherwise than on a police report. It involves an issue which is of a far reaching nature and would be a common issue in all trials which commences otherwise than on a police report. It is legally impermissible to extend the provisions of Section 173(4) Cr.P.C. to a case instituted on a private complaint. Mr. Mukherjee could not refer to any provision in the Criminal Procedure Code or any authority by virtue of which the accused would be entitled to copies of documents at the pre-charge evidence stage in a case instituted on a private complaint. Reference to Section 294 of the Cr.P.C. by the learned counsel for the opposite party No. 2 is of no avail. Section 294 Cr.P.C. reads as follows:
" 294. No formal proof of certain documents---(1) where any document in filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) the list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature or the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.
Evidently the provisions of Section 294 are not apposite for the issue in hand.
For the reasons aforestated the impugned order is not sustainable and is liable to be set aside.
The petition being CRR 1167 of 2009 is allowed by setting aside the order impugned.
Interim order stands vacated.
The learned trial Court will proceed with the case in accordance with law and make every endeavour to dispose of the same as expeditiously as possible.
A copy of this Judgment be communicated to the trial court forthwith.
Urgent Photostat certified copy of this Judgment if applied for, shall be given to the applicant upon compliance of requisite formalities.
(Asha Arora, J.)