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Rajasthan High Court · body

2010 DIGILAW 1066 (RAJ)

State of Rajasthan v. Hari Babu Goyal

2010-05-20

MAHESH BHAGWATI

body2010
Hon'ble BHAGWATI, J.—By way of this Criminal Misc. Petition filed under Section 482 of Cr.P.C. the State petitioner has implored to set aside the order dated 28th July, 2005 whereby the learned Special Judge (Prevention of Anti Corruption Act) Court, Kota directed D.G. Anti Corruption Bureau Jaipur to produce the file containing Note-sheet Nos. 129, 130 and 131 and the comments of Amarjeet Singh Gill D.G. ACB pertaining to FIR 230/98 of Police Station, Anti Corruption Bureau, Head quarter, Jaipur. 2. Heard the learned Public Prosecutor appearing for the State as also learned counsel for the accused non-petitioners and carefully perused the impugned order and relevant material on record. 3. Having reflected over the submissions made at the bar and carefully scanned the relevant provisions of law, it is noticed that in a case pertaining to FIR No. 230/98 of ACB, Jaipur, Shri D.C. Jain, SP, HQ and DIG Shri Shankar Saroliya had drawn some notings and Shri A.S. Gill D.G. passed his comments thereon. These notings were not filed along with the police report under Section 173(2) of Cr.P.C, by the Anti Corruption Bureau. On an application of accused non-petitioners the learned trial Court directed D.G. ACB to produce the said file. 4. Now, the crucial question springing for consideration in the instant petition is as to whether the note-sheets No. 129, 130 and 131 recorded by Senior Police Officers in the file pertaining to FIR No. 230/1998 of ACB Jaipur are the privileged documents? 5. At the very outset it is relevant to record that the notings recorded by Shri D.C. Jain S.P. HQ and Shri Shankar Suroliya, DIG and the comments made by Shri A.S. Gill thereon do not come within the purview of `evidence' collected by the Investigating Officer during investigation. These are the expression of opinion by the officers in the internal files, which are for the use of the department and not for outside exposure or for publicity. These are the expression of opinion by the officers in the internal files, which are for the use of the department and not for outside exposure or for publicity. The expression of opinion, albeit, may be a direction or guideline or any apprehension with regard to manner of collecting evidence during investigation, but the same may not have any bearing with the Police Report as envisaged u/S. 173(2) of Cr.P.C. For a moment, even if it is taken to be true that Shri D.C. Jain, the then S.P. and Shri Shankar Suroliya the then DIG gave opinion to submit the Final Report in the case, the same does not affect the trial of the case nor it may influence the decision thereof. The expression of opinion of Senior Police Officers in the administrative side has no nexus with the appreciation of evidence to be made by the Court, as the court has to form an opinion on the basis of evidence led by the prosecution and not on the basis of opinion recorded by the Senior Police Officers in a given criminal case. The notings are the independent `opinion' of the officers and not the 'evidence' collected during investigation and if such opinion is taken on record, it may cause impediment for the simple functioning of the office. These internal nothings, in fact, are the privileged documents. In the case of State of Bihar etc. vs. Kripalu Shankar etc. reported in AIR 1987, SC 1554, the Hon'ble Apex Court held the internal notings in a file to be privileged documents. Since the notings cannot become the basis of a judgment of the case, the same are not found to have any bearing with the decision of the case. 6. Section 173(2) of Cr.P.C. envisages that as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties. 6. Section 173(2) of Cr.P.C. envisages that as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties. (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. 7. Sub-Section 5 of Section 173 of Cr.P.C. contemplates thus: When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to reply other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161of all the persons whom the prosecution proposes to examine as its witnesses. 8. Thus, the internal notings forming the expression of opinion are not the documents on which the prosecution proposes to rely for the purpose of trial of a case. 9. The learned trial Court did not examine the issue of summoning the document from the office of ACB, Jaipur in its right perspective. The impugned order is found to be perverse and capricious and the same is not sustainable in view of the aforesaid observation made by the Hon'ble Apex Court in the case of Kripalu Shankar etc. (supra). 10. For the reasons stated above, the criminal misc. petition filed by the State under Section 482 of Cr.P.C. is allowed and the impugned order dated 28th July, 2005 stands set aside.