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2010 DIGILAW 540 (CAL)

In the matter of: Gopal Pramanik v. .

2010-05-18

RAGHUNATH RAY

body2010
JUDGMENT: 1. The revisionist has sought to challenge the Order No. 39 dated 16.04.2009 passed by the learned Judicial Magistrate, Second Court, Contai in G.R. No. 639 of 2006. By the aforementioned order impugned the learned Court below has rejected the revisionist’s prayer seeking direction upon the prosecution for supply of copies of the documents covered by the seizure lists. 2. Being aggrieved, the accused revisionist has preferred this revisional application on the ground that unless copies of those vital documents are furnished to him, he would not be in a position to cross examine the prosecution witnesses effectively. 3. Mr. Chatterjee, the learned counsel appearing in support of this revisional application, submits that since no documents covered by seizure lists have yet been supplied to him, his interest would be seriously prejudiced and non supply of such documents is in breach of section 207 of the Code of Criminal Procedure. Therefore, the order impugned passed by the learned Court below is required to be set aside. 4. Mr. Mallick, the learned counsel appearing for the State, is of the view that the question of supply of documents in question so seized by the Investigating Agency would arise only if prosecution intends to rely upon those documents to establish the guilt of the accused/revisionist. It is, however, submitted by him that he has no objection if copies of documents as asked for on behalf of the accused are supplied to him as per direction upon the learned court below. 5. At this stage Mr. Majumder, appearing on behalf of the De facto complainant, intervenes and submits that he was earlier permitted by this Court to make his submission on behalf of the De facto complainant since his client’s interest is also involved and he is a necessary party in this revision. He has already been examined in part as P.W.1 and because of stay granted by this Court, his examination and crossexamination could not be concluded although his examination started about one year back, i.e. on 16.04.2009. Therefore, this Court should pass an appropriate direction upon the learned court below so that his evidence may be concluded within a reasonable period of time. 6. It, however, appears from the record that, although Mr. Therefore, this Court should pass an appropriate direction upon the learned court below so that his evidence may be concluded within a reasonable period of time. 6. It, however, appears from the record that, although Mr. Majumder has filed Vokalatnama on behalf of the de facto complainant, no formal petition seeking his addition as one of the party respondents in this case has been filed. However, since the learned counsel for the petitioner and the State have not raised any objection, he is permitted to make his submission. More so, whenever it is understood that he has already been examined in part as P.W.1 in this case by the learned court below and because of stay of all further proceedings granted by this Court vide order dated 18.06.09, his further examination-in- chief and cross-examination have been deferred. 7. The main grievance of the revisionist is that the copies of some of the documents as required under section 207 of the Code of Criminal Procedure have not been furnished and in view of that matter he also filed a petition before the learned court below at the stage when he was called upon to cross-examine the P.W.1, the de facto complainant. 8. On perusal of the Lower Court Records, it appears that as many as 26 items which include some Registered Deeds, Agreements and Letters etc. as produced by Sri Tapan Kumar Duwari, Officiating Manager, United Bank of India, Contai Branch was seized on 13.12.2006. A good number of documents like Sale Deeds, Record of Rights, Exchange Deeds and Letters etc. were also seized from the possession of Dr. Bidhan Roy, the de facto complainant as per seizure list dated 13.12.2006. 9. There is no doubt that the prosecution is required to furnish copies of all the documents seized by the Investigating Agency, if they intend to rely upon the same. Nothing is available from the order impugned as to whether the documents in question covered by both the seizure lists were ever supplied in part or in full to the accused as required under section 208 of the Code of Criminal Procedure. 10. On the contrary, ld. Nothing is available from the order impugned as to whether the documents in question covered by both the seizure lists were ever supplied in part or in full to the accused as required under section 208 of the Code of Criminal Procedure. 10. On the contrary, ld. Magistrate has proceeded to pass the buck upon the prosecution by observing as under:- “I find that the seized alamats are not in record, as such the duty lies upon prosecution to follow rule of natural justice if it intends to rely upon the same. I find that provision u/s. 207 Cr. P.C. is completed and discharging of obligation u/s. 238 Cr. P.C. is fulfilled. Hence, prayer of accused is rejected at this stage.” 11. Such cryptic observation by the ld. Magistrate is both factually and legally incorrect and improper. A bare perusal of charge-sheet and two seizure lists would indicate that all seized documents were kept in the zimma of the person from whom the same were seized on condition to produce the same before the court as and when required. Ld. Magistrate has not cared to peruse either the seizure lists or charge-sheet which form the part of the record. Rather, he made unwarranted observation preceded by sheer non-application of mind. In fact, he has rejected the revisionist’s petition in a very casual fashion, perhaps, without appreciating the petitioner’s prayer in its proper perspective, even though the accused petitioner has clearly specified therein the nature of documents which are required to be furnished to him. 12. In such circumstances, I am of the view that the entire approach of the learned Magistrate as reflected in the order impugned appears to be absolutely erroneous. It is well settled position of law that the accused cannot be denied his statutory right to get copies of documents which the prosecution intends to rely during trial. Undisputedly the interest of the accused would be seriously prejudiced, if copies of the documents upon which the prosecution intends to rely are not supplied to him and really it would be a difficult task for the accused to cross-examine witnesses including the de facto complainant. 13. In this context it is made clear that a duty is cast upon the ld. 13. In this context it is made clear that a duty is cast upon the ld. Magistrate to ensure before the commencement of trial that copies of all documents or relevant extracts thereof forwarded to him with the police report under section (5) of section 173 of the Code are furnished to the accused. The supply of documents and statements prepared at the investigating stage as mandated under section 207 Cr. P.C. cannot be treated as mere superfluity or empty formality. This provision has been enacted by the Legislature with a definite object. It cannot be said that failure by the prosecution to comply with the mandatory provisions of the code in this regard would not vitiate the trial unless the applicant establishes actual prejudice. In my considered opinion, an omission to follow any mandatory provision of law would result in prejudice which is inherent in the situation. Thus, the prejudice may safely be presumed. In fact, the accused loses a valuable right to contradict the prosecution witnesses on the basis of documents seized by the Investigating Agency and / or the statement given by them before such agency if the same are not furnished to him at least on the eve of commencement of trial. That by itself, undoubtedly, would cause a serious prejudice. 14. The learned Trial Court has failed to appreciate the true import of suction 238 Cr. P.C. The underlying purpose in prescribing this procedure is to ensure speedy disposal of warrant cases instituted on police reports without in any way prejudicing the accused. Both the sections 207 Cr. P.C and 238 Cr. P.C. taken together leaves no room for doubt that it is obligatory for the ld. Trial Magistrate to ensure supply of copies of the relevant documents upon which the prosecution intends to rely upon during trial and it is highly improper and irregular on his part to shirk his responsibility in this regard and put the accused at the mercy of the prosecution by merely observing inter alia that it is the duty of the prosecution ‘to follow the rules of natural justice.’ Such lackadaisical attitude of the ld. Magistrate is absolutely unjustified both factually and legally. 15. It is to be noted that the ld. Magistrate is performing a judicial function and as such he is to take judicial notice of the factum of non-supply of some of the important documents. Magistrate is absolutely unjustified both factually and legally. 15. It is to be noted that the ld. Magistrate is performing a judicial function and as such he is to take judicial notice of the factum of non-supply of some of the important documents. Even though such lapse was brought to his notice at the very initial stage of recording evidence of the de facto complainant as PW 1, he has failed to take appropriate remedial measures as mandated under section 207 Cr. P.C. read with section 238 Cr. P.C. Ld. Magistrate is to ascertain as to whether copies of all the documents have been supplied as per statutory requirement of section 207 Cr. P.C. In fact, such requirement which is mandatory in nature must be complied with both in letter and spirit. The ld. Trial Magistrate is to be satisfied himself about such compliance. Ld. Magistrate’s such satisfaction, of course, has to be judicial satisfaction. 16. Relying upon the principles of law as enunciated broadly in the rulings of the Hon’ble Apex court reported in AIR 1957 S.C. 623 (Gurbachan Singh, Appellant v. State of Punjab, Respondent) and 2008 CRI. L. J. 3540 (Bharat Parikh v. CBI & Anr.) and also another ruling of the Division Bench of this Court reported in 1975 CRI. L. J. 832 (The Superintendent and Remembrancer of Legal Affairs, West Bengal, Petitioner v. Anthony Alten Fletcher and Anr., Opposite Parties), it is held accordingly ; (i) That the accused could not be refused supply of some of the documents as prayed for, if relied upon by the prosecution, even at the stage of trial on the anvil of statutory requirement of 207 Cr. P.C. for the simple reason, that it would tantamount to denial of a valuable statutory right to the accused in a criminal trial. (ii) It is the duty of the Magistrate himself to supply copies of relevant documents to the accused and to cause relevant endorsement in the order sheet to that effect. (iii) The accused is entitled to copies of the documents which were seized under two separate seizure lists and kept in the Zimma of the Bank Officials and the de facto complainant as is evident from the endorsement of the I.O. in the relevant column of the charge-sheet in the instant case. (iii) The accused is entitled to copies of the documents which were seized under two separate seizure lists and kept in the Zimma of the Bank Officials and the de facto complainant as is evident from the endorsement of the I.O. in the relevant column of the charge-sheet in the instant case. (iv) Since the whole purpose of the provision of section 207 is to give adequate notice to the accused of the materials to be used against him, during trial, ld. Magistrate should exercise abundant care and utmost caution to avoid unpalatable situation of causing prejudice to the accused. (v) Section 238 Cr. P.C. unequivocally provides that a solemn duty is cast on the Magistrate to satisfy himself that he has strictly complied with the provisions of Section 207 Cr. P.C. viz. furnishing the accused, free of cost, copies of documents as prayed for by him and referred to in that section itself without delay and such satisfaction has to be invariably judicial satisfaction. (vi) An omission to comply with the mandatory provision of law as enshrined in section 207 Cr. P.C. read with section 238 Cr. P.C. is bound to cause a serious prejudice to the accused and such a situation may even vitiate the criminal trial. 17. Viewed in the light of foregoing discussion, I am to opine that order impugned suffers from legal infirmity and as such the same is liable to be set aside. 18. In such trajectory, the learned Trial Court is directed to pass necessary direction upon the prosecution to supply legible Xerox copies of documents (26 Items) and (8 Items) as per two separate seizure lists dated 13.012.2006, if not already supplied earlier, to the learned counsel for the accused within three weeks from the date of communication of this order provided the prosecution intends to rely upon the same and after satisfying himself about supply of all the documents in question within the stipulated period of time, he would proceed with the trial of the present case. 19. It further appears from the case record that the accused/revisionist earlier also preferred a criminal revision being CRR No.3390 of 2007 with a prayer for quashing the proceeding in question , but the said revisional application was dismissed by this Court vide order dated 12.03.2008. 19. It further appears from the case record that the accused/revisionist earlier also preferred a criminal revision being CRR No.3390 of 2007 with a prayer for quashing the proceeding in question , but the said revisional application was dismissed by this Court vide order dated 12.03.2008. However, in the meantime, more than four years have silently elapsed from the date of initiation of the present criminal proceeding. Such being the factual position, I am of the considered view that neither the prosecution nor the defence should be allowed to protract the proceeding. In such view of the matter, the learned Court below is directed to dispose of G.R. Case No. 639 of 2006 in terms of section 309 (1) of the Code of Criminal Procedure in accordance with law without granting unnecessary adjournments to either of the parties within six months from the date of communication of this order positively. 20. With these observations and directions, as indicated hereinbefore, the order impugned dated16.04.2009 is hereby set aside with a specific direction upon the learned court below to ensure supply of legible Xerox copies of the relevant documents covered by two seizure lists both dated 13.12.2006 within three weeks from the date of communication of this order without fail. 21. The criminal revision being CRR No.2067 of 2009 thus stands disposed of. 22. Office is directed to send down the Lower Court Records along with a copy of this order to the learned Court below for necessary compliance. Urgent certified copy of this order, if applied for, be supplied on priority basis.