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2019 DIGILAW 687 (KER)

BAIJU S/O. FRANCIS v. STATE OF KERALA

2019-08-22

RAJA VIJAYARAGHAVAN V.

body2019
ORDER The petitioners herein stand indicted for murder and are facing trial in S.C.No.788 of 2011 on the file of the Additional Sessions Judge-III, Alappuzha. 2. It is the case of the petitioners that final report in the above sessions case was laid before the jurisdictional Magistrate by the Deputy Superintendent of Police, CBCID on 30.05.2011. From the final report, it is discernible that the incident had taken place on 16.04.2006 and investigation was taken over by CW45, the Inspector of Police, North Police Station, on 17.04.2016. He had questioned most of the witnesses, prepared the inquest, seized the clothes of the deceased, prepared the scene mahazar and recovered the material objects. He had also arrested the accused and had recovered the weapon of offence. According to the petitioner, substantial part of the investigation was conducted by the said officer. On 24.11.2016, the investigation was taken over by the CBCID pursuant to orders of this Court. Thereafter, CWs. 46 to 49, who are officers of the CBCID, carried out the investigation and it was CW50, who had laid the final report before the jurisdictional court after verifying the records. According to the petitioners, the 161 statements of witnesses, which were recorded by CW45, were not supplied to the accused. 3. The petitioners, in the said circumstances, filed Annexure-B application before the learned Sessions Judge requesting that the investigating officer be directed to serve the 161 statements of the witnesses, which were recorded by CW45. The learned Sessions Judge, by order dated 02.11.2018, allowed the said application and the investigating officer was directed to produce the records for being handed over to the accused. According to the petitioners, the said order was not complied with. 4. Left with no alternative, the petitioners filed Annexure-D application on 06.07.2019 raising the very same request. However, the learned Sessions Judge rejected the prayer on the ground that such records were not found among the documents produced by the CBCID along with the final report. The said order is assailed in this petition. 5. Heard Sri.B.Raman Pillai, the learned Senior Counsel appearing for the petitioner as instructed by Sri V.B.Sujesh Menon, and Sri.Suman Chakravathy, the learned Senior Public Prosecutor. 6. The said order is assailed in this petition. 5. Heard Sri.B.Raman Pillai, the learned Senior Counsel appearing for the petitioner as instructed by Sri V.B.Sujesh Menon, and Sri.Suman Chakravathy, the learned Senior Public Prosecutor. 6. Sri.B.Raman Pillai, the learned Senior Counsel, submitted that the order passed by the learned Sessions Judge is against the provisions of the Code and the decisions laid down by this Court as well as the Apex Court. According to the learned Senior Counsel, the right of an accused to obtain all the statements of all the witnesses whom the prosecution proposes to examine is indefeasible and is an essential facet of a right to fair trial. He would also urge that the said right is statutorily recognised and reference is made to Section 207 r/w. Section 173(5) of the Cr.P.C. Reliance is also placed on the decision of this Court in State of Kerala v. Raghavan @ Maniyan, 1974 KLT 148 to substantiate his contention. 7. Sri. Suman Chakravarthy, the learned Senior Public Prosecutor, has opposed the prayer. According to the learned Senior Public Prosecutor, Section 207(iii) only mandates that the statements recorded under sub section (3) of Section 161 of all persons whom the prosecution proposes to examine as witnesses need to be served on the accused. He contended that the Code does not mandate supply of witness statement other than which the prosecution proposes to rely on at the time of trial. 8. Having considered the submissions advanced, I am of the view that the submission of the learned Senior Public Prosecutor is only to be rejected. 9. Under Section 173 of the Cr.P.C., as soon as an investigation under Chapter XII 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 giving the details as mandated under sub clauses (a) to (h) of Section 173(2)(i) of the Code. Sub clause (5)(b) of Section 173 mandates that the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses shall be forwarded to the Magistrate along with the report. Sub clause (5)(b) of Section 173 mandates that the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses shall be forwarded to the Magistrate along with the report. Section 207 of the Cr.P.C. mandates that in any case, where the proceeding has been instituted on a police report, the Magistrate shall without unnecessary delay furnish to the accused, free of cost, a copy of the police report, the first information report recorded under Section 154, 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. In the case on hand, no such request for exclusion has been sought for by the police officer as contemplated under Section 173(6) of the Code. Furthermore, it would also be relevant to take note of the proviso to Section 242 of the Cr.P.C. which came into effect from 31.12.2009, which deals with the procedure for trial of warrant cases by Magistrates. The proviso states that the Magistrate shall supply in advance to the accused the statement of the witnesses recorded during investigation by the police. 10. In Sasikala V.K. v. State represented by Superintendent of Police, 2012(9) SCC 771 the Hon’ble Supreme Court had occasion to delve on the subject of the entitlement of the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. Referring to the decision in Siddharth Vashisht @ Manu Sharma v. State (NCT of Delhi) , (2010) 6 SCC 1 it was held as under: “In a recent pronouncement in Siddharth Vashisht @ Manu Sharma V. State (NCT of Delhi) (supra) to which one of us (Sathasivam, J) was a party, the role of a public prosecutor and his duties of disclosure have received a wide and in-depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens’ rights under Articles 19 and 21 and also the active role of the court in a criminal trial have been exhaustively dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. The said scheme was duly considered by this Court in different paragraphs of the report. The views expressed would certainly be useful for reiteration in the context of the facts of the present case:- “216. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, which in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. 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. Under the proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. Xxxxxx xxxxx 218. Under the proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. Xxxxxx xxxxx 218. The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. 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 aforereferred 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 examine 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 sub-section (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. 221. 221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.” (emphasis supplied) (Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1 )” 11. In State of Kerala v. Raghavan @ Maniyan (supra), in the context of the old Code, Justice K. Bhaskaran, as he then was, had occasion to observe as under: “8. Where the statements given by a witness on different occasions during the course of investigation are of conflicting nature on material points the position of the Public Prosecutor undoubtedly is not unenviable; even then he is expected to display a sense of detachment and fair play without being unduly Influenced by a desire to secure the conviction of the accused at any cost. By attempting to withhold from the accused the inconvenient portion of the statement of the witness the Public Prosecutor does not play his true role in assisting the court in correctly assessing the credibility of the witness or determining the degree of reliability of the oral evidence produced in the case. There may of course, rarely though, be cases in which the witness must have been substantially consistent in his statements, yet due to distorted or defective recording by some of the investigating officers, they may appear to be at variance from one another. Proved cases of dereliction of duties or deliberate distortion while recording statements of witnesses deserve to be dealt with by the State with a stern band at the appropriate level; but the court cannot allow the prosecution to gain a premium on account of the lapses in the investigation of cases or penalise the accused for the failures of the prosecution.” 12. The same view was taken by this Court in Joseph v. State of Kerala, 2010 (2) KLT 918 . 13. As held by the Apex Court, the liberty of an accused cannot be interfered with except under due process of law. The expression ‘due process of law’ would deem to include fairness in trial. The Code gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. The constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution to make fair disclosure. The concept of fair disclosure would take in its ambit, furnishing of a document, which the prosecution relies upon, whether filed in court or not. Though the statement recorded under Section 161 is not evidence per se under Section 162 of the Code, the right of the accused to receive the statements submitted before the court is absolute. The prosecution cannot pick and choose between 161 statement given by the same witness before different investigating officers on the basis that the said statement is not being relied upon. What the provision states is that the 161 statements of all the persons whom the prosecution proposes to examine as its witnesses shall be forwarded to the Magistrate along with the report. It does not say that only the 161 statements that are relied on by the prosecution need be supplied as contended by the learned Senior Public Prosecutor. Under the proviso to Section 162(1), the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code and such a right cannot be denied to the accused. As held by this Court in Raghavan @ Maniyan (supra), when conflicting statements are given by the same witness to different investigating officers on material points, the Public Prosecutor will have difficult choices to make. However, he is expected to display a sense of detachment without being influenced by a desire to secure the conviction of the accused by suppressing certain records. In Shiv Kumar v. Hukam Chand and Another, 1999 (7) SCC 467 the Hon’ble Supreme Court had occasion to elucidate on the role and duty of a Public Prosecutor. In paragraph Nos. 15 and 16, it was observed as under: “15. In Shiv Kumar v. Hukam Chand and Another, 1999 (7) SCC 467 the Hon’ble Supreme Court had occasion to elucidate on the role and duty of a Public Prosecutor. In paragraph Nos. 15 and 16, it was observed as under: “15. An early decision of a Full Bench of the Allahabad High Court in Queen -Empress v. Durga (ILR (1894-96) 16 All 84 : 1894 AWN 7) has pinpointed the role of a Public Prosecutor as under: "It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated; and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness box for cross examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness box, he is not bound, in our opinion, to call that witness or to tender him for cross examination." 16. As we are in complete agreement with the observation of a Division Bench of the High Court of Andhra Pradesh in Medichetty Ramakistiah v. State of A.P. ( AIR 1959 AP 659 : 1959 CrLJ 1404 ) we deem it fit to extract the said observation: "A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul.” For the aforementioned reasons, I allow this petition and direct the State to supply the copies of 161 statements recorded by CW45 of those witnesses whom the prosecution proposes to examine during trial in S.C.No.788 of 2011 on the file of the Additional Sessions Judge-III, Alappuzha, to the petitioners forthwith.