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2023 DIGILAW 371 (ALL)

Prashant Jaiswal v. State of U. P.

2023-02-07

SAUMITRA DAYAL SINGH

body2023
JUDGMENT : SAUMITRA DAYAL SINGH, J. 1. Heard Shri Sudarshan Singh, learned counsel for the applicant and learned A.G.A. for the State. 2. Challenge has been raised to the order dated 21.11.2022 passed by the learned court below on Paper No. 10-Kha in Session Trial No. 699 of 2022 (State vs. Prashant Jaiswal), arising out of Case Crime No. 54 of 2021, under Sections 376, 323, 504, 506 I.P.C. By that order, the learned court below has rejected the application moved by the applicant/accused person. It has thus refused to make available to the applicant a clone copy of the data available on a pen drive submitted by the Investigating Officer as part of the case diary. 3. Submission of learned counsel for the applicant is, the clone copy of the pen drive is necessary to be provided to the applicant to allow him a fair opportunity to confront the prosecution witness with certain parts thereof. Inasmuch as the data on that pen drive is not material referable to Section 173 (6) of the Cr.P.C. rather, it appears to be data referable to section 173 (5) Cr.P.C. the accused has a perfect right to be supplied a copy of the same in the interests of a fair trial which is directly referable to his fundamental right. 4. As to the reasoning offered by the learned court below, it has been submitted, grave error has been committed by it in assuming a violation of privacy of the victim, if the data on the pen drive is made available to the applicant. In the context, violation of fundamental right of the applicant to a fair trial, he would submit, the concerns of privacy may have been addressed by the learned court below by providing for restrains on the applicant from making public, any part of the data that may be thus made available to the applicant. In any case, a full transcript of the audio transaction ought to have been provided to the applicant. Last, it has been submitted, playback of the audio recording once, may not be enough to allow the applicant and his counsel a full and fair opportunity to formulate the exact questions to be put to the prosecution witness. The right of the defence cannot be curtailed on a vague and nebulous concern regarding privacy of the alleged victim. Last, it has been submitted, playback of the audio recording once, may not be enough to allow the applicant and his counsel a full and fair opportunity to formulate the exact questions to be put to the prosecution witness. The right of the defence cannot be curtailed on a vague and nebulous concern regarding privacy of the alleged victim. If allowed, it may seriously impair the impartiality and fairness of the trial proceedings, to the grave prejudice of the applicant. 5. On the other hand, the learned AGA would submit, at present it is not clear if the prosecution has relied and any part of the data/audio transaction claimed to be recorded on the pen-drive. Unless that were done first, the applicant cannot claim a right to be made available such document/material. 6. Having heard learned counsel for the parties and having perused the record, section 173(5) and (6) and section 207 Cr.P.C. read as under: “173. Report of police officer on completion of investigation: (5) 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 rely other than those already sent to the Magistrate during investigation. (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. 207. Supply to the accused of copy of police report and other documents - In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the police report. (ii) the first information report recorded under section 154. 207. Supply to the accused of copy of police report and other documents - In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the police report. (ii) the first information report recorded under section 154. (iii) 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. (iv) The confessions and statements, if any, recorded under section 164. (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.” 7. In P. Gopal Krishnan @ Dileep vs. State of Kerala and Another, (2020) 9 SCC 161 in the context of material/evidence available on electronic media, the Supreme Court had observed as below: “In conclusion, we hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The Court may issue suitable directions to balance the interests of both sides.” 8. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The Court may issue suitable directions to balance the interests of both sides.” 8. Thus, by way of principle, it has to be recognized, material/evidence available on a pen drive/electronic form is a document. In Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485 , it was recognized, a compact disc is a document. Then, being material referable to Section 173(5) Cr.P.C. and not Section 173(6) Cr.P.C. it may be supplied to the accused person as a clone copy of the original. Also, under Section 207 Cr.P.C. the right of the accused to be supplied “any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-Section (5) of Section 173 Cr.P.C.” may ordinarily be curtailed only if it is voluminous. In that case the Magistrate may allow its inspection instead of supply of a complete copy. The distinction between Section 173 and Section 207 Cr.P.C. was clarified in Manu Sharma vs. State, (2010) 6 SCC 1 . Therein, it was observed: “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. 222. The concept of disclosure and duties of the Prosecutor under the English system cannot, in our opinion, be made applicable to the Indian criminal jurisprudence stricto sensu at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non-furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any setback in the facts and circumstances of the case. The accused even did not raise this issue seriously before the trial court.” 9. Also, in V.K. Sasikala vs. State, (2012) 9 SCC 771 , as issue arose if at the stage of Section 313 Cr.P.C. an accused was entitled to documents not relied by the prosecution. Even such documents were permitted to be examined by the defence. It was then observed: “13. Without dilating on the said aspect of the matter what has to be taken note of now are the provisions of the Code that deal with a situation/stage after completion of the investigation of a case. In this regard the provisions of Section 173(5) may be specifically noted. It was then observed: “13. Without dilating on the said aspect of the matter what has to be taken note of now are the provisions of the Code that deal with a situation/stage after completion of the investigation of a case. In this regard the provisions of Section 173(5) may be specifically noted. The said provision makes it incumbent on the investigating agency to forward/transmit to the court concerned all documents/statements, etc. on which the prosecution proposes to rely in the course of the trial. Section 173(5), however, is subject to the provisions of Section 173(6) which confers a power on the investigating officer to request the court concerned to exclude any part of the statement or documents forwarded under Section 173(5) from the copies to be granted to the accused. 14. The court having jurisdiction to deal with the matter, on receipt of the report and the accompanying documents under Section 173, is next required to decide as to whether cognizance of the offence alleged is to be taken in which event summons for the appearance of the accused before the court is to be issued. On such appearance, under Section 207 Cr.P.C. the court concerned is required to furnish to the accused copies of the following documents: 1. The police report. 2. The first information report recorded under Section 154. 3. 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. 4. The confessions and statements, if any, recorded under Section 164. 5. Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173. 15. While the first proviso to Section 207 empowers the court to exclude from the copies to be furnished to the accused such portions as may be covered by Section 173(6), the second proviso to Section 207 empowers the court to provide to the accused an inspection of the documents instead of copies thereof, if, in the opinion of the court it is not practicable to furnish to the accused the copies of the documents because of the voluminous content thereof. We would like to emphasise, at this stage, that while referring to the aforesaid provisions of the Code, we have deliberately used the expression “court” instead of the expression “Magistrate” as under various special enactments the requirement of commitment of a case to a higher court (Court of Session) by the Magistrate as mandated by the Code has been dispensed with and the Special Courts constituted under a special statute have been empowered to receive the report of the investigation along with the relevant documents directly from the investigating agency and thereafter to take cognizance of the offence, if so required. 17. Seizure of a large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the court under Section 173 Cr.P.C. a fair amount of application of mind on the part of the investigating agency is inbuilt in the Code. Such application of mind is both with regard to the specific offences that the investigating officer may consider to have been committed by the accused and also the identity and particulars of the specific documents and records, seized in the course of investigation, which supports the conclusion of the investigating officer with regard to the offences allegedly committed. Though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5) in every situation where some of the seized papers and documents do not support the prosecution case and, on the contrary, supports the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, it is not impossible to visualise a situation whether the investigating officer ignores the part of the seized documents which favour the accused and forwards to the court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the court would it not be the duty of the court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution? If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the court would it not be the duty of the court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution? What would happen in a situation where such documents are not forwarded by the investigating officer to the court is a question that does not arise in the present case. What has arisen before us is a situation where evidently the unmarked and un-exhibited documents of the case that are being demanded by the accused had been forwarded to the court under Section 173(5) but are not being relied upon by the prosecution. Though the prosecution has tried to cast some cloud on the issue as to whether the unmarked and un-exhibited documents are a part of the report under Section 173 Cr.P.C. it is not denied by the prosecution that the said unmarked and un-exhibited documents are presently in the custody of the court. Besides, the accused in her application before the learned trial court (I.A. No. 711 of 2012) had furnished specific details of the said documents and had correlated the same with reference to specific seizure lists prepared by the investigating agency. In such circumstances, it can be safely assumed that what has happened in the present case is that along with the report of investigation a large number of documents have been forwarded to the court out of which the prosecution has relied only on a part thereof leaving the remainder unmarked and un-exhibited.” 10. Thus, only by way of exception to the general rule, it may be recognized, the Court may be justified to allow for a simple inspection of the documents being relied upon by the prosecution. Statutorily, those exception may arise under section 207(iii) read with section 173(6) Cr.P.C. and section 207(v) read with Section 173(5) Cr.P.C. At the same time, by virtue of the first proviso to section 207, the Magistrate retains discretion to allow any part or portion of the statement to be furnished to the accused, in such event. Also, by virtue of the second proviso to section 207, the Magistrate may only allow inspection of any document (covered by Section 176(5) of the Cr.P.C.) if it is voluminous. 11. Also, by virtue of the second proviso to section 207, the Magistrate may only allow inspection of any document (covered by Section 176(5) of the Cr.P.C.) if it is voluminous. 11. Then, by virtue of the ratio of the decision of the Supreme Court in P. Gopal Krishnan (supra), where issues of privacy of the complainant/witness or his/her identity may be involved as may require balancing of interests of both sides, the Magistrate may only allow for an inspection of a document in place of its whole copy being supplied. 12. Thus, denial of complete copy of a document is an exception to the general rule namely, the accused has a right to be made available the material. To carve an exception to the rule, their must exist just and proper grounds. Those may emanate either from Section 173(6) Cr.P.C. when the police officer may have formed an opinion that disclosure of any statement is either not relevant or its disclosure is not essential in the interest of justice or is inexpedient in the public interest. Yet, by virtue of the first proviso to Section 207 the opinion and the reasons (giving rise to it) would remain subservient to the better wisdom of the learned Magistrate. At that stage, the learned Magistrate may, instead of the entire statement or document, allow for a part or portion of it to be made over to the accused. Second, if the document not covered under Section 173(5) Cr.P.C. is voluminous, then, for that reason the learned Magistrate may allow for its extract to be made over to the accused. 13. Seen in that light, clearly, the exception carved out by the Supreme Court in P. Gopal Krishnan (Supra), is referable to the first proviso to Section 207 Cr.P.C. being not in the interest of justice or inexpedient in public interest. However, that decision to be made by the Magistrate being discretionary, would have to be exercised on a judicious application of mind to the particular/peculiar facts giving rise to serious concerns about violation of privacy etc. 14. When the Court seeks to deny an accused person material gathered during investigation and proposes to only allow him an opportunity to peruse the same from the Court record, the Court is taking a decision that may, potentially have a material being on the fairness and completeness of the trial as also its final outcome. 14. When the Court seeks to deny an accused person material gathered during investigation and proposes to only allow him an opportunity to peruse the same from the Court record, the Court is taking a decision that may, potentially have a material being on the fairness and completeness of the trial as also its final outcome. Also, that decision if based on or inspired by reason to protect the privacy of another individual must be well reasoned, both on facts and in law. 15. Therefore, before the Court may do that, it must itself examine the material to be sure that the interest to protect the privacy of a complainant or witness etc. outweighs the requirement to make available to the accused person, the material being relied against him. In that, it may also speak to the concerned witness/complainant and ascertain his views. If necessary, it may entertain formal objections and reply thereto and pass such order as may balance the rights and interests of both sides, without risk of impairing the fairness of trial of proceedings. 16. In the present case that exercise does not appear to have been undergone by the learned court below. It has merely considered the application moved by the applicant and the general concern expressed by the prosecution. If the Court had itself examined the material and thereafter proceeded to pass the order, that decision would have been founded on facts and would have addressed the genuine concerns of the parties. In that the Court may also have considered if supply of a transcript of the conversation or any portion or part thereof may serve the need of the defence. Certainly, the volume of the document is not an issue here as the entire document would fit on a pen drive. 17. The reasoning of the learned court below based on Section 327 Cr.P.C. may not be correct. That provision basically requires the trial such as this (involving offence under section 376 IPC), to be conducted in camera. Sub-Section (3) of section 327 Cr.P.C. prohibits printing or publication of any matter in relation to such proceeding, except with leave of the Court. Plainly, that provision would have no application to the request of the accused person to be made available copy the document existing on the case diary for the purpose of setting up a defence. Sub-Section (3) of section 327 Cr.P.C. prohibits printing or publication of any matter in relation to such proceeding, except with leave of the Court. Plainly, that provision would have no application to the request of the accused person to be made available copy the document existing on the case diary for the purpose of setting up a defence. That provision applies primarily against printing or publication by third party, outside the Court proceedings. In any case, by virtue of Section 327 Cr.P.C. it would remain with the Court to restrain the accused person from making any publication, through any means of any part of such material, outside the Court proceedings. 18. Further another defect appears to exist in the order learned court below inasmuch as in the earlier part of the order it has been suggested that the copy of the desired document had already been made over to the applicant. That part of the reasoning would conflict with the later reasoning that such clone copy of pen-drive is not required to be given to the accused person, arising from concerns of privacy of the victim. 19. Whichever way the matter is looked at, at present the order passed by the learned court below is found to be deficient in reasoning. In view of the discussion made above, the said order cannot be sustained. It is set aside. The matter is remitted to the learned court below to pass a fresh order, keeping in mind the observation made above. Such exercise may be completed within one month from the date of communication of the order to the learned court below. 20. Accordingly, the present application is disposed of.