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2005 DIGILAW 81 (GUJ)

Pathan Faridkhan Usmanbhai v. State of Gujarat

2005-02-10

D.K.TRIVEDI

body2005
JUDGMENT : D.K. Trivedi, J. Rule. Mr. Pancholi, learned Addl.P.P. waives service of Rule on behalf of the respondent State. By consent, Rule is fixed forthwith. 2. Heard Mr. Patel, learned advocate for the applicants, who in turn has taken me through the petition and the order under challenge passed by the learned District Judge, 7th Fast Track Court, Nadiad passed below application Ex.40. This petition is pending since issuance of notice as per order dated 26.11.2004. As found from the order under challenge, considering the request made by the learned A.P.P. for time, the court had granted interim stay as prayed for till the returnable date by permitting direct service. The applicants accused are in custody in view of the charge sheet filed for the offence under Sections 302, 147, 148, 149, 120-B of the IPC and the case was committed to the Sessions Court for trial and case being Sessions Case No. 89 of 2003 is pending. The application Ex. 40 was filed through advocate by the petitioners before the learned trial Judge on 12.8.2004 supported with an affidavit of the petitioner Shri Faridkhan Pathan and the said application was fixed for hearing. The applicant has while filing that application prayed for certain reliefs for issuance of summons in respect of production of certain documents. 3. While considering this revision application, Mr. Patel, learned advocate appearing for the petitioners has concentrated only in respect of the request of the applicants referred to in his application for production of certain documents and for issuance of summons in respect of documents referred to in item Nos. 1 and 2. As found from the application, the applicants have prayed for issuance of summons for production of certain documents in respect of the injured witness were taken to Civil Hospital at Nadiad for treatment and in respect of that vardhi as well as yadi, which has been received by the civil hospital for which, said documents were required for which a request for issuance of summons was made. In para 2, the request was also made for the treatment provided to deceased Bhavin and Kirti in Civil Hospital at Nadiad and the request was made for issuance of summons to concerned officer from the Civil Hospital for production of the documents. 4. In para 2, the request was also made for the treatment provided to deceased Bhavin and Kirti in Civil Hospital at Nadiad and the request was made for issuance of summons to concerned officer from the Civil Hospital for production of the documents. 4. Learned Judge has while deciding with the said application, has not found in favour of the applicants as according to the learned trial Judge that the documents, which has been referred to by the applicants that can be available at the time when the doctor will examine during trial and at that time, the documents which has been referred to by the doctor, a copy of the same will be furnished to the accused. The learned trial Judge has also referred to the provision of Section 91 of the Cr.P.C. by which, according to learned Magistrate that court cannot direct the police for production of all the papers as according to him that when the prosecution will examine Dr. Hansraj Patel as well as the doctor from the Civil Hospital, the documents which they produce in evidence in court, a copy of which will be furnished to the accused. The court has further observed that even the Court is in agreement with the decision rendered by the High Court in the matter of Mahendra K. Trivedi v. State of Gujarat, reported in 2001 GLR p.701 and the court has rejected the application. It is necessary for me to reproduce para 6 of the said judgment, which reads as under : "The ratio of the judgment of State of Gujarat v. Shyamalal Mohanlal Choksi (supra) says about a shelter provided to the accused. Merely because the trial is on, the weapon which is with the accused under that very Section 91 does not remain suspended. It can be used even strategically if the accused feels that he wants to avoid the formality of leading evidence in defence. He can request the Court for production of the document from the prosecution side. The accused can legitimately refer such document, even while cross-examination of any witness by referring such documents. He can recall the witnesses if examined, provided, permitted by the Court and put such question as to certain documents and can carve out the line or alternative line of defence if such documents are brought on record very well in time. The accused can legitimately refer such document, even while cross-examination of any witness by referring such documents. He can recall the witnesses if examined, provided, permitted by the Court and put such question as to certain documents and can carve out the line or alternative line of defence if such documents are brought on record very well in time. The accepted principle of criminal jurisprudence of this Country says that the prosecution should be fair enough and has no privilege to put a curtain on any oral or documentary evidence. The privilege given under Section 91 of the Code of Criminal Procedure if is not used at proper time or stage then, the defence of the accused might be prejudiced. So at any stage, whether at the stage of framing of charge or at any other stage before the accused is compelled to enter into defence, he can legitimately pray that the prosecution be asked to produce certain documents. It is obvious that failure in compliance of the order, if passed below such application, can open another window to the defence side. The learned Sessions Judge while dealing with the application, has not considered all these aspects which were very much relevant looking to the facts and circumstances. It is important to note that it was not the say of the prosecution at the time of resisting the application filed by the accused, that the documents asked by the accused are irrelevant nor it is the finding of the learned Sessions Judge that this application is moved only with a view to delay the proceedings and he is not satisfied about the relevance of the documents asked by the applicant accused in the midst of the trial. This court is of the view that the submission made by Mr. Pardiwala that the judgment of State of Gujarat v. Shyamlal (supra) was misread by the learned A.P.P. at the time of advancing submission before the learned Sessions Judge and therefore only erroneous finding has been recorded is well founded. The error requires to be corrected and the prosecution should be asked to produce the relevant documents as prayed in the application. Exh. 18. The error requires to be corrected and the prosecution should be asked to produce the relevant documents as prayed in the application. Exh. 18. It would be proper to observe that it will be open to the prosecution to state before the learned Sessions Judge that any of the documents for which the application is filed, if not available to the prosecution or they re not in custody, then in that event, the Court will have to appreciate the entire contingency in light of the case put forward by the prosecution and/or defence." 5. In light of the said decision and on examining the order under challenge and as contended by Mr. Patel, when the applicant has prayed for issuance of summons as referred to in item Nos. 1 and 2 in the application, the rejection of the request was not proper as the documents which are necessary for the prosecution for which the accused persons are entitled and accordingly, unless the summons as prayed for is issued, these documents will not be available to the court though the prosecution is going to examine the Medical Officer to prove the medical certificate in respect of the injuries found on the person. In my view, without expressing anything on the contentions raised before me, the approach of the learned trial Judge is not proper and the court has not properly appreciated the request made by the petitioner in his application for issuance of summons and the learned trial Judge ought to have granted the application. Accordingly, while setting aside the said order, the trial Court is directed to issue summons in respect of item Nos. 1 and 2 of the application Ex.40. With this observation, application is allowed. Rule is made absolute. Interim relief stands vacated. Direct service permitted. Revision allowed.