Allahabad High Court
Satyam Tewari And Anr. vs State Of U.P. And Ors. on 22 November, 2021
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?A.F.R.
Court No. - 14
Case :- U/S 482/378/407 No. - 4658 of 2021
Applicant :- Satyam Tewari And Anr.
Opposite Party :- State Of U.P. And Ors.
Counsel for Applicant :- Rajiva Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Rajiva Dubey, learned counsel for the petitioners and Sri Ran Vijay Singh, learned Additional Government Advocate for the State.
2. In view of the proposed order, the notice to opposite party No.3 is hereby dispensed with.
3. By means of this petition, the petitioners have prayed for the following relief:-
"Wherefore, it is most respectfully prayed in the interest of justice that this Hon'ble Court may kindly be pleased to allow this petition under Section 482 Cr.P.C. and quash the impugned order dated 06.10.2021 passed by the learned III Additional Sessions Judge, District-Lakhimpur Kheri in Sessions Trial No.181 of 2020, Crime No.853 of 2020, under Section 302 I.P.C., Police Station-Kotwali Sadar, District-Lakhimpur Kheri and also issue direction commanding the learned Trial Court to immediately supply to the petitioners the extract of the C.D. of the footage of C.C.T.V. Camera produced by the information, which is part of charge-sheet.
The petitioners have further prayed for stay the criminal proceedings pending against the petitioners before the learned Trial Court i.e. learned III Additional Sessions Judge, District-Lakhimpur Kheri in Sessions Trial No.181 of 2020, Crime No.853 of 2020, under Section 302 I.P.C., Police Station-Kotwali Sadar, District-Lakhimpur Kheri."
4. At the very outset, learned counsel for the petitioners has drawn attention of this Court towards Annexure No.2 of the petition, which is an application dated 16.10.2021 filed before the learned trial court for getting the Compact Disk (C.D.), which has been made part of the case diary with the request that for submitting the defence by the petitioners such C.D. would be relevant and required in the interest of justice.
5. The attention has also been drawn towards Section 207 Cr.P.C., which clearly provides about supply to the accused of copy of police report and other documents. The exception to Section 207 Cr.P.C. is that if the documents demanded is voluminous in nature, instead of providing such documents the accused person may be permitted to peruse such documents or to inspect either personally or through Pleader of the Court.
6. While disposing of the aforesaid application vide order dated 06.10.2021 (Annexure No.1), the learned court below rejected such application giving reference of the judgment of Hon'ble Apex Court rendered in re: Shafi Mohammad vs. State of Himanchal Pradesh reported in (2018) Crl.L.J 1714 indicating therein the portion of that judgment which deals with the provisions of Section 65-B (4) of the Indian Evidence Act.
7. Sri Dubey has submitted that in the application of the petitioners (Annexure No.2) the specific prayer for supply of C.D. was made in terms of provisions of Section 207 Cr.P.C. assigning the reason as to why such C.D. would be necessary and required for the petitioners but while disposing of such application learned court below has not dealt with such provisions of law and the provision so indicated in such order while rejecting the application was not relevant in the present case.
8. So as to strengthen the aforesaid arguments, Sri Dubey has drawn attention of this Court towards the judgment of Hon'ble Apex Court rendered in re: (2020) 9 SCC 161 P. Gopalkrishnan Alias Dileep vs. State of Kerala and another, whereby the Hon'ble Apex Court has held that furnishing of documents to accused under Section 207 Cr.P.C. is a facet of right of accused to a fair trial enshrined in Article 21 of the Constitution of India and it is duty of Magistrate to pass appropriate orders providing such documents. Some relevant portion of para-10 of the judgment is being reproduced here-in-below:-
"10. Be that as it may, the prosecution was obviously relying on the contents of the memory card which have been copied on the pen-drive by the State FSL during the analysis thereof and has been so adverted to in the police report. The contents of the memory card, which are replicated in the pen-drive created by the State FSL would be nothing but a "document" within the meaning of the 1973 Code and the provisions of the 1872 Act. And since the prosecution was relying on the same and proposes to use it against the appellant-accused, it was incumbent to furnish a cloned copy of the contents thereof to the appellant-accused, not only in terms of Section 207 read with Section 173 (5) of the 1973 Code, but also to uphold the right of the accused to a fair trial guaranteed under Article 21 of the Constitution of India...."
9. Per contra, learned Additional Government Advocate has submitted that there is likelihood that the petitioners would have been provided copy of such C.D. inasmuch as before committal of case the mandatory condition of Section 207 Cr.P.C. is fulfilled. However, he has submitted that if the said required piece of evidence which is a part of case diary has not been provided to the petitioners, they have however right to ask such documents under Section 207 Cr.P.C..
10. Learned Additional Government Advocate has further submitted that if at all such mistake has been committed by the learned court below, he may be directed to provide such demanded documents if it is not provided to accused.
11. I have heard learned counsel for the parties and perused the material available on record.
12. I am of the considered opinion that the mandatory condition of Section 207 Cr.P.C. may not be ignored and if such application is filed by or on behalf of accused person, it should have been considered and decided by speaking and reasoned order and if such application has been rejected by the learned court below, the specific reason to that effect should have been given. The learned court below should have specifically stated that such documents have already been provided to the accused persons or the documents are so voluminous and opportunity of inspection has already been provided. But in the impugned order dated 06.10.2021, the learned court below has not even whispered to the effect as to whether the demanded document (C.D.) has already been provided to the petitioner or he was provided any appropriate opportunity to inspect such C.D. if it is voluminous but instead of dealing such aspects he has dealt with the aspect of Section 65-B (4) of Indian Evidence Act, which was not relevant at that point of time. Therefore, it appears that the impugned order dated 06.10.2021 (Annexure No.1) passed by the learned court below i.e. Additional Sessions Judge-III, District-Lakhimpur Kheri has been passed without application of mind and without considering the relevant facts and circumstances viz-a-viz the legal provisions of Section 207 Cr.P.C. in proper perspective.
13. Accordingly, I do not find any good reason to keep this petition pending any longer. So I hereby set-aside the impugned order dated 06.10.2021 (Annexure No.1) passed by the learned court below i.e. Additional Sessions Judge-III, District-Lakhimpur Kheri in Sessions Trial No.181 of 2020, Crime No.853 of 2020, under Section 302 I.P.C., Police Station-Kotwali Sadar, District-Lakhimpur Kher. However, liberty is given to the learned court below to pass appropriate order on the application of the petitioner dated 16.03.2021 (Annexure No.2) strictly in accordance with law, within a period of fifteen days after receipt of a certified copy of this order. The petitioners are given liberty to produce the certified copy of this order along with fresh application enclosing therewith their earlier application, which has been annexed as Annexure No.2 to this petition, within a period of seven working days.
14. Hence, the instant petition is allowed.
15. No order as to costs.
Order Date :- 22.11.2021
Suresh/
