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TMI Blog2016 (7) TMI 1697X X X X Extracts X X X X X X X X Extracts X X X X ..... expedient in the public interest nor essential in the interest of justice, he is supposed to append a note in his forwarding memorandum to the Magistrate to that effect along with his reasons for withholding such statements or parts thereof from the accused. It is settled law that an impartial and fair opportunity in a trial is the legal right of an accused. Justice can only be ensured if the rules of procedure are diligently adhered to. No court shall allow breach of these principles - In the instant case, accused persons / respondent nos. 2 to 5 are not seeking to produce any document nor are they seeking to produce any material to prove their innocence but they have called upon the Investigating Officer of the case to supply the statement of witnesses recorded during the course of investigation report of the committee which was received by the Investigating Officer during the course of investigation. Relying upon judgment, in Ashutosh Verma [ 2014 (12) TMI 1405 - DELHI HIGH COURT] , this Court observed that the petitioner cannot be denied an access to the documents in respect of which prayers have been made in the petition merely because CBI does not consider it relevant. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded under S. 161 Cr.PC collected by the Investigating Officer during the investigation have been supplied to the accused persons and the prosecution be further directed to supply the documents which were not filed alongwith the charge-sheet but collected during investigation. Vide the impugned order, the application was allowed and the respondent no.1 was directed to supply the documents. Counsel further submits that while passing the impugned order, learned Metropolitan Magistrate overlooked the mandate S.91 of Cr.PC. It is settled law that S. 91 of Cr.PC cannot be invoked by the accused persons at the preliminary stage of framing of charge. Further if the statement has been reduced into writing under S. 161 (3) of the Code then statement of such persons as the prosecution proposes to examine as witnesses shall be given to the accused persons meaning thereby that in case persons are orally examined during police investigation and whose statements are not reduced into writing, no question of supplying copies of any such statement arise. Moreover, the accused is not entitled to all the statements recorded under S.161(3) of the Code. He is entitled to only such statement of witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.2 passed obscene remarks using abusive language with an attempt to slap. He got up from his seat and tried to assault her. The respondent no.3 also stood and started using shameful gestures with obscene remarks. Earlier also, he had passed incident and shameful comments. The respondent no.4 also got up from his seat and abused her. During this time, the respondent no.5 also joined them and tried to overpower her. She was in distress and had no other option but to call the police. Then she called at telephone number 100. 6. On the basis of her statement, the instant FIR under S. 509 IPC was registered. Statement of complainant was also recorded under S. 164 Cr.PC by the learned Metropolitan Magistrate. In order to verify the allegations of complainant as well as authenticity of the complaint filed against the complainant, the Investigating Officer made inquiries from several teachers of the school and some of the teachers stated that they were not present at the time of incident, but after knowing about the allegations leveled by the complainant, they decided to write a letter in favour of principal. The senior teacher Dr Preeti Shukla prepared the draft and they signed it in rout ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), direction was given to the concerned SHO to supply all the statements of witnesses recorded in writing during investigation to the accused persons whether the same favours prosecution or the defence. SHO was further directed to supply copies of preliminary inquiry report, internal complaint, committee report, complaint dated 05.07.2013 filed by the complainant to the management of the school, if all these documents are available in the police file. 8. Feeling aggrieved the present petition has been filed by the petitioner / complainant. 9. Before adverting to the facts of the present case, it is necessary to consider the relevant provisions of Sections 173 and 207 of Cr.P.C., which read as under: - 173. Report of police officer on completion of investigation - (1) Every investigation under this Chapter shall be completed without unnecessary delay. [(1A). The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.] (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2) xxxx xxxx xxxx 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is the obligation of the Magistrate to see that all the documents which are necessary for the accused for proper conduct of his defence, are furnished to him well before the trial. 12. 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 the bounden duty of the police officer to forward to the Magistrate all the statements mentioned in subsection (5)(b) of Section 173 of 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 statements to the accused. In case the police officer considers that the disclosure of any part of such statements would not be expedient in the public interest nor essential in the interest of justice, he is supposed to append a note in his forwarding memorandum to the Magistrate to that effect along with his reasons for withholding such statements or parts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence collected by the Investigating Officer during the investigation of the case. If it is brought to the notice of the Court by the accused that some of the evidence or documents have been withheld by the Investigating Officer or the prosecution deliberately, so that truth does not come out before the Court, the Court, before framing of charge can order the Investigating Officer to place the entire investigation before it and ask him to produce case diaries. Fair investigation is the right of the accused and this right can be exercised by the accused at the time of charge and the accused can insist upon the Court to consider the evidence collected by the Investigating Officer but not made part of the charge-sheet. 15. Adverting to the case in hand, reliance placed by learned counsel for the petitioner on Debendra Nath Padhi (supra) does not help the petitioner / complainant as in that case it was observed that at the time of framing of charge or taking cognizance, S. 91 Cr.PC does not confer any right on the accused to produce document in his possession to prove his defence. In the instant case, accused persons / respondent nos. 2 to 5 are not seeking to produce any document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 furnished to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused prejudicially. 16. Relying upon this judgment, in Ashutosh Verma (supra), this Court observed that the petitioner cannot be denied an access to the documents in respect of which prayers have been made in the petition merely because CBI does not consider it relevant. If there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of the prosecution and the investigating officer ignores these documents and forward only those documents which favour the prosecution, in such a scenario, it would be the duty of investigating officer to make such documents available to the accused. 17. Reverting to the case in hand, accused persons called upon the Investigating Officer to supply documents / statements as mentioned in the applications. In fact, in the charge-sheet also there was a reference that during the course of investigation, the Investigating Officer had received the inquiry report etc. Under the circumstances, in order to do substantial justice to both the parties, the application moved by the respondent nos. 2 to 5 was allowed. The State has not challenged the impugned order meaning thereby it is not averse to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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