Pravinkumar Lalchand Shah vs State Of Gujarat And Anr. on 3 August, 1981
Reliance was placed on in the case of Bashir Hussain v. Gulam Mohomed Ismail, by the State to canvass a point that so far as giving of the copies is concerned, principle of jurisprudence is not involved. In the case before the Bombay High Court there was a question of supplying copies of the statements in a private complaint. So far as the Criminal Procedure Code is concerned, the copies of the statements and the documents on which the prosecution relies are to be supplied in a case filed on the police report. When that insistence was made, the Bombay High Court negatived it by observing that section 173(4) applies only when investigation is made by a police officer and that too under Chapter XIV of the Code. It was further observed that section 173(4) is purely procedural and only directory. It does not also enact any fundamental principle of criminal jurisprudence as such and hence it cannot be argued that such copies should be made available to the accused on a principle analogous to the one contained in the section. It was further observed that a warrant case instituted on a private complaint is governed by the procedure Under Sections 252 to 259 and as these sections do not contain any provision similar to section 173(4) for furnishing such copies, the accused is not entitled to get such copies. These observations are made because there was insistence before the Court that even in a case where Chapter XIV does not apply and even if it is a case not based on the police report, on the analogy of section 173(4) the copies should be given. This was negatived. Not only that but in that case Mr. Jethamalani, the learned Counsel who appeared for the defence, wanted to make the provisions all embracing by submitting that the prosecution must supply the copies of statements of all persons whom the prosecution did not propose to examine during the trial because that referred to the provisions which were not contained in the Code and still an analogy was being attempted to be applied. The Bombay High Court has observed that section 173(4) is purely procedural and it does not also enact any fundamental principle of criminal jurisprudence. But in the case before us section 173(4) clearly applies. A fine distinction has been attempted to be made that if these principles (propounded by the Bombay High Court) are applied, then because Under section 173(5)(a) the police is required to forward only those documents on which the prosecution proposes to rely and if under section 207(v) the Court has to give copy of any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of section 173, then if the documents are not forwarded, the strict compliance would not require giving the copies of the enlarged photographs. But we feel that this is too technical ah argument because we propose to consider "all documents on which the prosecution proposes to rely" in a broader amplitude with a view to appreciating the availability of the material to the accused for his proper defence. The basic principle of criminal jurisprudence is of fair trial. From the documents supplied to the accused by the prosecution, there must be a guarantee of a fair trial inasmuch as the accused should be informed of all the materials on which the prosecution relies and also all the materials which are to be employed by the prosecution against the accused so that he can prepare his proper defence. In such a case the fundamental principle of criminal jurisprudence is certainly involved.