2020 (10) TMI 1383 - HC - Indian Laws

Denial to supply some crucial documents as prayed/required in the application under Section 207 Cr.P.C. - proper recording of statement under section 161 Cr.P.C. or not - whether statement of witness V.K. Jain recorded on 21.02.2018 but not signed by IO of the case, is to be considered as a statement recorded under section 161 Cr.P.C.? - If yes, further question arises whether relied upon judgments by the respondents are applicable in the facts and circumstances of the present case? HELD THAT - Undisputedly, in the remand order of co-accused namely Prakash Jarwal and Amanatullah Khan, Learned Metropolitan Magistrate, Tis Hazari Courts, Delhi, has recorded the date of statement of V.K. Jain as 21.02.2018. However, in reply to above facts, it is stated that above date of 21.02.2018 is a typographical error, in fact both statements under section 161 Cr.P.C. and 164 Cr.P.C. of witness V.K. Jain were got recorded on 22.02.2018. Moreover, the fact of recording of statement dated 21.02.2018 in order of learned MM dated 23.02.2018 is the submission made by the defence counsel, not by the prosecution. It is pertinent to mention here that in para 28 of impugned order dated 24.07.2019, learned ASJ has recorded that on perusal of ‗Case Diary it shows that witness V.K. Jain was examined in Police Station on 21.02.2020 in depth and a report was prepared. The case diary further shows that after examination, V.K. Jain was relieved from the investigation after giving him necessary instructions. Learned Judge further observed that since it is a record of oral examination of V.K. Jain by the IO and is noted in the 'Case Diary', the said examination does not take place of statement under section 161 Cr.P.C. and is thereby not to be given to the accused. However, the same may be used during the trial. This Court in Ashutosh Verma vs. CBI 2014 (12) TMI 1405 - DELHI HIGH COURT has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. A conjoint reading of section 173(5), 173(6) and first proviso attached to section 207 of Cr.P.C. leaves no scope of doubt that it is bounden duty of the police officer to forward all the statements to the Magistrate, mentioned in sub-section (5) (b) of Section 173 Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under section 207 of Cr.P.C. by furnishing copies of such documents to the accused. Regarding limitation, although delay is duly explained in the petition, however, there is no applicability of Limitation Act on Section 482 Cr.P.C. being the inherent powers of this Court. The said section is starting itself with a non-obstante clause (Notwithstanding) therefore, this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non-applicability of Limitation Act and non-providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C., the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus, raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself. There are merits in the present petition. Consequently, the impugned order is hereby set-aside - the present petition is allowed.

Summary

Issues Involved:
1. Quashing of the impugned order dated 24.07.2019.
2. Supply of certain documents under Section 207 Cr.P.C.
3. Examination of the statement of witness V.K. Jain dated 21.02.2018.
4. Applicability of Section 172(3) Cr.P.C.
5. Limitation and delay in filing the petition under Section 482 Cr.P.C.

Issue-wise Detailed Analysis:

1. Quashing of the Impugned Order Dated 24.07.2019:
The petitioners sought to quash the impugned order dated 24.07.2019 passed by the learned ASJ, which did not allow the supply of certain crucial documents under Section 207 Cr.P.C. The court observed that the statement of V.K. Jain recorded on 21.02.2018 was not considered under Section 161 Cr.P.C. and thus not supplied to the accused. However, the court found this decision perverse as the statement was indeed recorded and mentioned in various documents, thus acquiring the status of a Section 161 Cr.P.C. statement. Consequently, the impugned order was set aside.

2. Supply of Certain Documents under Section 207 Cr.P.C.:
The petitioners argued that they were entitled to the complete copy of the chargesheet and other documents under Section 207 Cr.P.C. The court highlighted that it is the obligation of the Magistrate to ensure all necessary documents for the accused's defense are furnished. The court emphasized that the prosecution cannot withhold evidence that does not support their case and must provide all collected evidence to the accused. The court directed the trial court to consider the statement dated 21.02.2018 of V.K. Jain at the time of passing the order on charge.

3. Examination of the Statement of Witness V.K. Jain Dated 21.02.2018:
The prosecution claimed that no statement under Section 161 Cr.P.C. was recorded on 21.02.2018, only an oral examination noted in the case diary. However, the court found that the statement was indeed recorded and mentioned in various documents, including the chargesheet. The court ruled that this statement should be considered under Section 161 Cr.P.C. and supplied to the accused, ensuring a fair trial.

4. Applicability of Section 172(3) Cr.P.C.:
The court examined whether the records of the case diary could be sought despite the bar under Section 172(3) Cr.P.C. The court referred to various judgments and concluded that the case diary, including statements recorded under Section 161 Cr.P.C., should be made available to the accused. The court emphasized the importance of a fair investigation and trial, where all collected evidence must be brought to the court's notice without any selective withholding.

5. Limitation and Delay in Filing the Petition under Section 482 Cr.P.C.:
The respondents argued that the petition was belated and should be dismissed due to inordinate delay. However, the court clarified that Section 482 Cr.P.C. starts with a non-obstante clause, and there is no limitation period prescribed for filing petitions under this section. The court held that it has the inherent power to exercise its jurisdiction to prevent miscarriage of justice and abuse of process of law, irrespective of the delay. The court found the delay explained in the petition and ruled that the inherent powers under Section 482 Cr.P.C. were rightly invoked in this case.

Conclusion:
The court allowed the petition, set aside the impugned order, and directed the trial court to consider the statement of V.K. Jain dated 21.02.2018 while passing the order on charge. The court emphasized the duty of the investigating agency to conduct a fair investigation and bring all collected evidence to the court's notice. The petition was allowed and disposed of accordingly.