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2011 DIGILAW 264 (CHH)

MURARI PRASAD AWASTHI v. STATE OF C. G.

2011-08-01

MANINDRA MOHAN SHRIVASTAVA

body2011
ORDER 1. The aforesaid two petitions (i.e.Cr.M.P.No.444 & 445 of 2011) are being disposed off by a common order as common question of law and fact arises for consideration. The applicant is facing trial for commission of offence under Section 406 of the I.P.C. under Crime No.08/2008 pending in the Court of Judicial Magistrate First Class, Rajnandgaon and also for alleged commission of offence under Section 379 of the I.P.C. under Crime No.280/2007 pending in the same Court. 2. The applicant was arrested by the Dongargaon Police on 03-04-2008 on the allegation of commission of offence under Section 379, 392, 406, 394 and 397 of the I.P.C. and four different cases were registered leading to filing of four charge sheet. In one, out of four cases, after filing of the charge sheet, the case was committed to the Court of Sessions Judge, which was registered as Sessions Trial No.117/2008 alleging commission of offence under Section 394, 397 of the I.P.C., wherein the applicant has been acquitted vide judgment dated 08-12-2009 passed by the 1st Additional Sessions Judge, Rajnandgaon. In both the above cases, charge sheet was filed on 23-06-2008. However, right from the beginning, the applicant has been agitating grievance by making application before the Court for direction to the Prosecution to supply legible copy of documents along with charge sheet. On 13-08-2008, the learned Magistrate directed the prosecution to supply legible copy of documents to the applicant. The applicant's case was thereafter listed on 28-08-2008 for ensuring compliance and committal. On that day, the applicant moved an application in the two cases for supply of legible copy of certain documents. In his application (Annexure A-2 in Cr.M.P.No.444 of 2011), the applicant specifically stated regarding the documents which were not legible and prayed for supply of legible and readable copies of those documents supplied along with the charge sheet. In Cr.M.P.No.445 of 2011 also, the applicant also moved an application (Annexure A-2) dated 28-08-2008 for supply of legible copies of the documents referring to the, pages of the charge sheet as also requesting for supply of legible copies of some other documents. On 28-08-2008, an order was passed directing the prosecution to supply clear and legible true copies of those documents, which are not legible. According to the applicant, even on the next date, documents were not supplied. Both the cases were thereafter listed on 14-10-2008. On 28-08-2008, an order was passed directing the prosecution to supply clear and legible true copies of those documents, which are not legible. According to the applicant, even on the next date, documents were not supplied. Both the cases were thereafter listed on 14-10-2008. On that date, some of the documents were supplied to the applicant and for supply of legible copies of the rest of the documents, time was sought by the prosecution and case was again listed on 24-10-2010. On that date, the applicant again agitated that even after the order of the Court, legible copies of all those documents, which are stated to be not legible earlier, are not being supplied, and therefore, proceedings for non-compliance of Court order dated 13-08-2008 be initiated. He also prayed that the legible copies of the requisite documents be supplied. On 24-10-20 I 0, the Court passed an order after recording that complete legible copies of documents have been supplied. It is the case of the applicant that on 07-11-2008, the applicant again preferred an application under Section 207 of the Cr.P.C. stating that the prosecution has misled the Court as legible copies of the documents have not been supplied. Thereafter, the case was listed on several dates. When the remaining legible copies of the documents were not supplied, another application was moved by the applicant on 20-03-2009. On 09-12-2010, the Court passed an order (Annexure A-6) directing that the applicant should be supplied all the legible copies of the documents in compliance of Court order dated 13-08-2008, except those legible copies of documents, which have been supplied to the applicant on 14-10-2008. It is the case of the applicant that thereafter, instead of providing legible copies of the documents as demanded by the applicant, the prosecution supplied to the applicant copies of those documents as filed along with the charge sheet, which were wholly illegible. It was not the case of the applicant that the documents have not been supplied, the grievance of the applicant was that the legible copies of the documents have not been supplied, and further, mere supply of photocopies of the document would not meet the requirement of law as also the compliance of the Cour order. It was not the case of the applicant that the documents have not been supplied, the grievance of the applicant was that the legible copies of the documents have not been supplied, and further, mere supply of photocopies of the document would not meet the requirement of law as also the compliance of the Cour order. However, vide order dated 28-12-2010, the learned Magistrate rejected the applicant's application recording that the documents whose legible copy has been demanded has already been supplied to the applicant, and further that, in view of the case of the applicant that the original documents filed along with the charge sheet are not legible and prays for supply of documents after making those copies legible, prayer is liable to be rejected. 3. Aggrieved by the said order of rejection, the applicant preferred revision, which has also been dismissed. 4. Learned counsel for the applicant by placing reliance upon the decision of the Supreme Court in the case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi) 1, submitted that the prosecution is under an obligation to supply to the applicant, legible and accurate copies of the documents, which are sought to be relied upon by the prosecution to prove the charges against the applicant, as contained in the charge sheet. Learned counsel for the applicant submits that each and every document filed along with the charge sheet, are not only required to be supplied, but legible copies of those documents, which includes FIR, statement under Section 161 of the Cr.P.C., memorandum etc are also required to be supplied. Learned counsel submits that in spite of repeated prayer made before the Court below, legible copies of all the documents, which were enlisted in his application dated 28-08-2008, in both the cases, have not been supplied. 5. On the other hand, learned State counsel submitted that a perusal of order dated 24-10-2008 (Annexure A-5) shows that the Court was satisfied that legible copies of all the documents were supplied to the applicant. 5. On the other hand, learned State counsel submitted that a perusal of order dated 24-10-2008 (Annexure A-5) shows that the Court was satisfied that legible copies of all the documents were supplied to the applicant. He further submits that in Court order dated 28-12-2010 also, it has been recorded that the documents as filed along with the charge sheet have been supplied to the applicant and it has been correctly held that the applicant's prayer for supply of legible copies of those documents, which are not legible in its original, as filed along with the charge sheet, cannot be accepted and supply of copy of the documents in the charge sheet as filed in the Court is sufficient compliance of the requirement of law under Section 173 and 207 of the Cr.P.C. 6. From the applications dated 28-08-2008 filed by the applicant in two different cases, it is revealed that the applicant had demanded legible copies of certain documents, reference of which, has been clearly given in the application itself. The learned Court below also passed an order directing the prosecution to supply legible copies of the documents on 28-08-2008. On 2410-2008, while considering the applicant's prayer for supply of legible copies of the documents, it has been recorded that on 14-10-2008, the prosecution had supplied legible documents, of which, acknowledgement was also given by the applicant that all the documents have been supplied to him. Later on, the applicant again disputed by moving an application that legible copies of all the documents, as demanded by the applicant, have not been supplied. The submission was appreciated by the Court and again vide order dated 09-122010 (Annexure A-6), the Court below directed that the legible copies 9f all those documents, except those, whose legible copies of the documents have been supplied to the applicant on 14-10-2008 in compliance of Court order dated l3-08-2008! be supplied. Order dated 28-12-2010 shows that the grievance agitated before the Court was that in purported compliance of order dated 09-12-2010, the applicant has only been supplied photocopies of those documents, but the same are not legible. On the said statement, the learned Court below has recorded that as the original documents as filed along with the charge sheet itself were not legible, the applicant's prayer for supply of those documents by making them legible, cannot be allowed. On the said statement, the learned Court below has recorded that as the original documents as filed along with the charge sheet itself were not legible, the applicant's prayer for supply of those documents by making them legible, cannot be allowed. In the opinion of this Court, order passed by the Court below is illegal and cannot be sustained. It is also found that when the matter was taken up in revision, the Revisional Court has recorded a vague finding. While dismissing the Revision, it has been vaguely recorded that typed copies of some of the documents, which are available on record and after perusal of the documents, it cannot be said that the documents are wholly illegible. 7. From the aforesaid orders passed by the Court below and the Revisional Court, it is found that the Court below have not considered the applicant's application in its proper perspective. The applications, which have been filed by the applicant in two cases, referred to specific documents either by mentioning the nature of the documents or by mentioning the pages of the charge sheet. Therefore, the learned Magistrate was under an obligation to examine the grievance of the applicant with specific reference to those documents as to whether legible copies have been supplied or not. An accused cannot be subjected to criminal trial, which may end up in his conviction/incarceration, without even knowing the contents of the documents, which are sought to be relied upon by the prosecution. Unless the accused knows the content of the documents, which are sought to be relied upon by the prosecution, having been filed along with the charge sheet, he may not effectively exercise his right of defence by impeaching the credibility of the material placed before the Court by the prosecution. It is also noted that initially the Court passed an order directing the prosecution to supply legible copies of the documents demanded by the petitioner, later on, on 24-10-2008, it was recorded -that legible copies have been supplied and acknowledgment obtained. If that be so, there was no occasion to pass another order on 09-12-2010 to the effect that legible copies of the documents are required to be supplied, except those legible copies, which have already been supplied on 14-10-2008. If that be so, there was no occasion to pass another order on 09-12-2010 to the effect that legible copies of the documents are required to be supplied, except those legible copies, which have already been supplied on 14-10-2008. Therefore, it is clear that on 09-12-2010, the Court was satisfied that legible copies of all the docume'1ts as demanded by the applicant have not been supplied. Thereafter, vide order dated 28-12-2010, the applicant's prayer has been rejected on the ground that the applicant is claiming legible copies of those documents, which in original itself and filed along with the charge sheet, are not legible, and therefore, legible copies cannot be supplied. 8. In the case of Sidhartha Vashisht alias Manu Sharma1 (supra), the Supreme Court has examined the scope of provision contained in Section 207 of the Cr.P.C, it has been held : 196. "Thus the position under common law is clear i.e. subject to exceptions like sensitive information and public interest immunity, the prosecution should disclose any material which might be exculpatory to, the defence." 9. It has also been held that concept of fair trial is committed to preserve all fundamental right of accused guaranteed under the Constitution of India. The Supreme Court proceeded to hold:- 216. ............... xx................. "The right of the accused to receive the documents/statements submitted before the court is absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with law." ............... xx................. ............... xx................. 219. "The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as afore referred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to 86examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under subsection (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression "documents on which the prosecution relies" are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code." 220. "The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207,243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely." 10. Therefore, as far as documents, which are appended to the charge sheet, which the prosecution intends to use against the petitioner in order to prove guilt of the petitioner, are concerned, the petitioner is not only entitled to copies of those documents, but also entitled for legible copies of those documents. Supplying of documents, which are not readable and legible, would serve no purpose and it is merely an empty formality. The prosecution cannot be allowed to use the document, which the accused or his counsel cannot read or understand as to what contents of the documents are. As long as those documents are used and relied upon by the prosecution, supply of legible copies of documents is the requirement of fair trial, which cannot be denied, to the accused. 11. In the result, it is held that the petitioner is entitled to legible copies of all the documents, which were demanded by the petitioner; vide his application dated 28-08-2008 in both the cases. The petitioner has been supplied some of the legible copies of documents on 14- 10-2008 and remaining legible copies of the documents have not been supplied. The Magistrate or the Sessions Judge, as the case may be, shall further examine the prayer of the petitioner for supply of legible copies of the documents, which have not been supplied so far, and appropriate and specific directions shall be issued to the prosecution to supply the documents to the petitioner. 12. With the aforesaid direction, the petition is finally disposed off. Petition Allowed.