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2000 DIGILAW 532 (BOM)

Satish Gopalkrishna Pillai v. State of Maharashtra

2000-07-25

VISHNU SAHAI

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JUDGMENT (ORAL) Vishnu Sabai, J.- Heard learned Counsel for the parties and perused the impugned order dated 13-4-2000 passed by the IIIrd Additional Sessions Judge, Sangli. 2. This Petition which has been preferred under Article 227 of The Constitution of India and Section 482 of the Code of Criminal Procedure arises out of the following factual matrix: On 10-3-2000, the first Respondent - State of Maharashtra preferred an application for cancellation of anticipatory bail which was granted to the Petitioner and the Respondent No.2 – Kiran Jadhav, in a case under Sections 109, 380, 406, read with Section 34 IPC (arising from C.R. No. 91 of 1999 of Kundal Police Station). Notices were issued to the Petitioner and the Second Respondent. Thereafter the Petitioner filed two applications namely Exhibits 4 and 5. In Exhibit 4, it was stated that the Petitioner be furnished with certified copies of the statements of witnesses recorded under Section 161 Cr. P.C. and the documents given by them to substantiate their said statements. In Exhibit 5, which was an application under Section 91 Cr. P.C. the prayer was that the documents stipulated thereon be summoned. The said documents have been enumerated in para 4 of the said application which reads thus: "It is therefore prayed that this Hon'ble Court be pleased to issue statutory process under Section 91 Cr. P.C. to: (a) Kirloskar Brothers Ltd. To produce all the relevant documents it possesses pertaining to supply of complaints in respect to and after sales services of the Water Pump Sets supplied to the Ministry of Defence during Kargil War: (b) The Ministry of Defence to produce all the correspondence as regards the complaints if any and the satisfaction thereof in respect of the Water Pump Sets supplied to it by the Kirloskar Brothers Ltd. during Kargil War." 3. The learned Additional Sessions Judge, Sangli vide the impugned order rejected both the applications after referring to a plethora of authorities, which to eschew prolixity. I do not intend reiterating it. 4. I may mention that it is common ground between the counsel for the parties that the charge sheet has not been submitted. The learned Judge rejected Exhibit 4 on the ground that in view of the provisions contained in Section 173 and 207 Cr. P.C. copies of the statements of witnesses recorded under Section 161 Cr. 4. I may mention that it is common ground between the counsel for the parties that the charge sheet has not been submitted. The learned Judge rejected Exhibit 4 on the ground that in view of the provisions contained in Section 173 and 207 Cr. P.C. copies of the statements of witnesses recorded under Section 161 Cr. P.C. and the documents given by them could only be supplied to the Petitioner after submission of the charge sheet. The learned Judge rejected Exhibit 5 on the grounds enumerated below: (a) that it was vague as the particulars of the documents the production of which was sought, were not specified in it: (b) it was not the case of the Petitioners that the said documents would be destroyed or tampered with: and (c) in an application for cancellation of anticipatory bail, the scope of enquiry was limited and it was not necessary to summon the documents referred to in Exhibit 5. 5. I have perused the impugned order and I find that it suffers from no infirmity and merits no interference. A perusal of Sections 173 and 207 Cr. P.C. makes it manifest that only after the investigation has been concluded and the charge sheet submitted, would copies of the statements of witnesses recorded under Section 161 Cr. P.C. and the documentary evidence of which the prosecution relies, be supplied to the accused. In this connection, it would be necessary to refer to Section 173(5) Cr. P.C. which reads thus: (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate alongwith the report (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation: (b) the statements recorded under Section 161 of all the persons whom the prosecution in proposes to examine as its witnesses. Section 207 Cr.P.C. and clauses (iii) and (v) thereof read 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) ............................................ (ii) ............................................. Section 207 Cr.P.C. and clauses (iii) and (v) thereof read 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) ............................................ (ii) ............................................. (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) ............................................. (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173. In this view of the matter, the learned Judge was justified in rejecting Exhibit 4. The learned Judge was equally justified in rejecting Exhibit 5 because, the reasons for rejecting it, referred to in para 4, in my view, are wholly tenable and plausible. 6. There is another reason as to why I am not inclined to interfere with the impugned order. The present petition through which it has been assailed has been preferred under Article 227 of the Constitution of India, and Section 482 Cr. P.C. The impugned order is an interlocutory order and is not revisable by virtue of the bar engrafted in Section 397 (2) Cr. P.C. It is well-settled that the said bar, save in most exceptional cases, cannot be circumvented by approaching this court either under Article 227 of the Constitution of India or under Section 482 Cr.P.C. It is also well-settled that what cannot be done directly the law would not permit to be done indirectly. In my view this is not one of those exceptional cases wherein the present petition should be entertained under the said provisions. 7. It should be borne in mind that the question before the court below was whether the anticipatory bail granted to the Petitioner be cancelled or not? In my view the learned Additional Sessions Judge was justified in holding that for deciding the said question it was not necessary to furnish to the Petitioner the copies of the statements and the documents referred to in Exhibit 4 and to summon the documents mentioned in Exhibit 5. 8. For the said reasons. In my view the learned Additional Sessions Judge was justified in holding that for deciding the said question it was not necessary to furnish to the Petitioner the copies of the statements and the documents referred to in Exhibit 4 and to summon the documents mentioned in Exhibit 5. 8. For the said reasons. I reject this application. At this stage, learned Counsel for the Petitioner made a oral prayer that I should stay the operation of my order for a period of one week as the Petitioner intends approaching the Apex court I find no merit in the said prayer and reject it. Issuance of certified copy is expedited. Petition dismissed.