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TMI Blog2014 (12) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. However, the statement of remaining witnesses Nos.(c) (d) and (g) in para 3 and witnesses (a) to (e) in para 4 of the application of the petitioner and three witnesses mentioned in para 6 of application of accused No.3 (Sanjeev Nanda) were declined. 2. The factual matrix of the case as set out in the FIR is that the petitioner, Ashutosh Verma the then Deputy Director (Investigation) of Directorate of Income Tax entered into a criminal conspiracy with other co-accused persons for manipulation of the appraisal report of income tax investigation, to show undue favour to the accused No.2 (Suresh Nanda). This was to be done by carrying out the necessary changes in the report and by way of withholding and destroying incriminating evidence which came to his knowledge during investigation before submitting the same to his senior officers. For this, the petitioner demanded and accepted a huge amount of illegal gratification. The intercepted conversation between accused No.4 (Bipin Shah) and the petitioner revealed that on several occasions the accused had discussed about insertion/ deletion/ modification of various facts in the said appraisal report. Thereafter, in February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the same have not been forwarded by the prosecuting agency as they have not been relied upon by CBI. The CBI had also recorded statements under Section 161 (3) Cr.P.C. of Rajpal Malik, Chhabi Lal and Vinit Khetan but has not filed them. Similarly, Directors of M/s. Blueview Commodities Pvt. Ltd., M/s. Kush Hotels and Resorts Pvt. Ltd., M/s. Longview Infrastructure Pvt. Ltd., M/s. Brijdham Properties & States Pvt. Ltd. and M/s. Tolly Commercial Pvt. Ltd. were examined by the CBI but their statements were not provided to the petitioner. 6. Learned senior counsel for the petitioner has also pointed out that vide order dated 03.06.2013, learned trial court directed the CBI to supply even those documents upon which the prosecution has not relied upon but have been seized by the CBI and whereas by virtue of impugned order dated 01.11.2013, trial court has reviewed its own order which is not permissible in law. 7. Learned senior counsel for the petitioner has relied on judgments in 'S.J. Chowdhary vs. The State', 1984 Cri.L.J. 864 and 'Dharambir vs. Central Bureau of Investigation', 148 (2008) DLT 289, to contend that the CBI is bound to supply statements of all the witnesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation.] (2) (i) As soon as it 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, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170; [(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Section 376, 376A, 376B,376C [Section 376D or Section 376E of the Indian Penal Code (45 of 1860)].] (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts thereof from the accused. Wherever any such reservation is made by the police officer, it still lies within the discretion of the Magistrate whether to allow such request or not and it is only in the event where Magistrate agrees with the reasons given by the police officer for not supplying any statement or part thereof to an accused, he may order accordingly while agreeing with the objection raised by the police official. 16. In other words, it is only when specific request has been made by a police officer in his forwarding memorandum of the charge-sheet while being forwarded to the Magistrate stating that any particular statement recorded under Section 161(3) of Cr.P.C. or any document or any part thereof should not be supplied to the accused that the, Magistrate shall on the basis of the discretion conferred upon him, by virtue of first proviso attached to Section 207 of Cr.P.C. after considering the reasons given by the police officer making such request, would either issue directions for furnishing copy of that part of statement or would issue directions for furnishing any relevant portion of that statement thereof to the accused or otherwise. It thus, necessarily follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing causes a threat to such a right. It is the right of an accused to adduce evidence in order to raise defence failing which it may tantamount to jeopardizing the right to fair trial. Justice can only be ensured if the rules of procedure that have been designed are diligently adhered to. No court shall allow breach of these principles. Furthermore, incompletely adduced evidence would lead to incomplete defence, which may result in incorrect or incomplete answers consequently strengthening the prosecution case against the accused. 20. In S.J. Chowdhary's case (supra), this Court after considering the relevant provisions of Section 161, 162, 172, 173 and 207 of Cr.P.C. observed as under: - "6. The reading of Section 173(5)(b) and Section 207(iii) would go to show that the emphasis is on the persons whom the prosecution proposes to examine as its witnesses during trial and not on their statements on which the prosecution proposes to rely for proving charge against an accused person and this distinction is doubly re-assured from the use of the word "whom" in these two provisions of law which must necessarily refer to the persons and not to their statements for which the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses. Otherwise it would mean deviation from the mandatory provisions of criminal law and to deny the accused the just and fair trial.' In 'State of Punjab v. Mohinder-Singh', (1974) 76 Pun LR 364, it is laid down as under: - "If the police officer does not record the statements of all or some of the witnesses under Section 161(3), Cri. P. C., but cleverly incorporates the same in the case diary maintained under Section 172, Cri.P.C. in the belief that by doing so those statements can be kept back from the knowledge of the accused, then the accused cannot be deprived of the copies of those statements. The provisions of Sections 162, 173(4) and 207(3), Cr.P.C. impose an obligation upon the prosecution agency to supply copies of statements of witnesses, who are intended to be examined at the trial to enable the accused to obtain a clear picture of the case against him to utilise them in the course of cross-examination to establish his defence and also to shake the testimony of the prosecution witnesses. The words "such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record" in Sub- section (1) of Section 162, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case the evidence relied upon by the accused is not produced by the accused from his custody but is the evidence collected by the Investigating Officer. These are the supplementary statements of complainant under Section 161, Cr.P.C. recorded by the I.O. The complaint and the statements clearly show that the couple had separated from parents of Naginder Singh in October, 2000, after the divorce petition and at that time they had gone to a rented accommodation along with bag and baggage. Even if, in October, 1999 some entrustment was made by the complainant to the petitioner, that came to an end in October, 2000 when she separated from her in- laws and took away all her belongings. She made no complaint after October, 2000 till September, 2001 that her mother- in-law or father-in-law had any part of her istridhan with her. All her complaints were against her husband, who had remarried and made her life miserable. Her father-in- law and mother-in-law were co-operating her for an action against their son. They had gone to the extent of disowning their son, and issued a public notice to that effect. They made complaint to the police against their son for the action for his sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 207(v) Cr.P.C. what the Magistrate has with him are those documents which have already been sent to the Magistrate during the course of investigation and those documents that are forwarded by the police officer along with the charge sheet. Under Section 207(v), the Magistrate has no discretion in the matter of not supplying such documents. The only limited discretion that the Magistrate has in terms of the second proviso to Section 207(v) Cr.P.C. is if the documents are so voluminous he can direct that the accused will be permitted only an inspection of the documents. 8.4. Since considerable importance is attached, on a reading of the aforementioned two provisions of the Cr.P.C., to the supply to the accused of all the 'documents' proposed to be relied upon by the prosecution, the question that arises is whether the HDs are documents of which copies can be asked for by the accused. If the HDs are not documents at all and only storage devices as contended by the CBI, then the further question whether they are being relied upon by the CBI and whether copies thereof therefore need to be supplied to the accused will not arise. 8.5 The meaning of the word 'do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. xxxx xxxx xxxx 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 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 places 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 furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the accused prejudicially." 24. At this juncture, it is relevant to mention that Section 172 (1A) of Cr.P.C. has been amended w.e.f. 31.12.2009 to expressly state that all the statements recorded under Section 161 Cr.P.C. have to be necessarily recorded in the case diary. 25. The words 'such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record' in sub-section (1) of Section 162 of Cr.P.C. make it abundantly clear that the statement of witnesses recorded during investigation even if taken down in police diary maintained under Section 172 of Cr.P.C., can be used by the accused for the purposes specified in proviso to Section 162(1) of Cr.P.C. A very valuable right is given to the accused under proviso to Section 162(1) of Cr.P.C. and he can exercise this right only if the copies of the statements made by the witnesses during the investigation, whether recorded under Section 161(3) of Cr.P.C. or in the police diary maintained under Section 172 of Cr.P.C. are supplied to him. It follows that the accused is entitled to the copies of statement of persons whom the prosecution proposes to examine as witnesses even tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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