Prashant @ Rohit S/O Ghasiram ... vs The State Of Maharashtra Through ...
2003 Latest Caselaw 1233 Bom

JUDGMENT

S.B. Deshmukh, J.

1. Heard learned Counsel Mr. R.M. Daga for the applicant as well as Mr. D.B. Patel, learned A.P.P. for State/respondent.

2. Rule, returnable and heard forthwith by consent of the parties.

3. The facts leading to the controversy, may be summarised, in brief, as follows:

4. The applicant is prosecuted alongwith 5 others by the Police Station Officer, Ballarshah, for having committed the offences punishable under Sections 147, 148, 302 r/w 149 of the I.P.C. vide Crime No. 245/2002. The charge-sheet in the matter is filed and case was also committed to the Court of the learned Sessions Judge, at Chandrapur. It seems from the record that thereafter, the case is handed over to Second Additional Sessions Judge, Chandrapur. The learned Second Additional Sessions Judge, Chandrapur, framed the charge against the applicants and other co-accused. The prosecution examined as many as 18 witnesses, in the trial and last witness i.e. P.W. 19 who is the Investigating Officer, is examined on 19.11.2003. It is stated in the petition that examination-in-chief of said P.W. 19 is being recorded and at that time, the application for grant of permission to file about 14 documents, came to be filed below Exh. 89 on behalf of the prosecution. The learned Second Additional Sessions Judge, Chandrapur, after hearing the parties allowed the said application Exh. 89 in terms of its prayer, consequent to which, permission to file documents as per the list appended to the said application Exh. 89 amids recording of evidence is granted. The petitioner, therefore, is challenging the said order by filing the present Criminal Revision Application in this Court under Section 397 r/w Section 401 of the Cr.P.C.

5. With the assistance of the learned Counsel Mr. Daga, I have read the application Exh. 89, copy of which was made available to me during the course of hearing of this Criminal Revision Application.

6. The learned Counsel Mr. Daga submits that under Sub-section (5) of Section 173, the Police Officer is under obligation to submit all documents alongwith the charge-sheet and thereafter, the prosecution is not entitled to file any document in the case. It is also argued by learned Counsel Mr. Daga that since 18 witnesses have been examined, his defence is being disclosed and therefore, the applicant accused would be put to prejudice.

7. I have seen the provision laid down under Section 173 of the Cr.P.C. regarding the report of the Police Officer on completion of investigation which reads thus:

Section 173 of the Cr.P.C.

173. Report of Police Officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(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.

(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, by whom the Information relating to the commission of the offence was first given.

(3) Whether a superior Officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies, the Police Officer shall forward to the Magistrate alongwith 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 past 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 interest 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 slating his 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 by reports regarding such evidence in the form prescribed; and the provisions of Sub-section (2) to (6) shall be 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).

8. I have also considered the submission of the learned Counsel Mr. Daga regarding Sub-section (5) of Section 173. It appears that the officer-in-charge of the Police Station while submitting the report in respect of the case to which Section 170 applies, shall forward to the Magistrate alongwith the report, all documents or relevant extracts thereof on which the prosecution proposes to rely on other than those already sent to the Magistrate during the course of investigation. The scheme laid down under Section 173 of the Cr.P.C. in its entirety will have to be read and appreciated. Under Sub-section (8) of Section 173, the officer-in-charge of the Police Station is also not precluded from further investigation in respect of the offence after report under Sub-section (2) of Section 173 has been forwarded to the Magistrate. In other words, further investigation within the four corners of Sub-section (8) of Section 173 is also permissible. In this view of the matter, Sub-section (5) of Section 173 cannot be construed isolately and/ or independently and it cannot be said that all documents or relevant extracts thereof shall be forwarded by the Investigating Officer to the Magistrate alongwith the report regarding a case to which Section 170 applies. The embargo or prohibition which is canvassed by the learned Counsel Mr. Daga, is not acceptable.

9. However, the Court, in accordance with the scheme of Section 91 of the Criminal Procedure Code, is empowered to allow the issuance of summons or production of documents, if thinks it necessary or desirable. The provision laid down under Section 91 reads thus:

Section 91 of the Cr.P.C. :

A- Summons to produce

91. Summons to produce document or other thing.-

(1) Whenever any Court or any officer-in-charge of police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court of Officer, such Court may issue a summons or such Officer a written order, to the person in whose possession or power such document or thing is believed to be requiring him to attend and produce it or to produce it at the time and place stated In the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition, if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed -

(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or

(c) to apply to a letter, postcard telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

10. The powers conferred under Section 91 of the Cr. P.C. are, enabling in nature, aimed at arming the Court or any officer-in-charge of a Police Station concerned to enforce and to ensure the production of any document or other things, "necessary or desirable", for the purposes of any investigation, enquiry, trial or the proceedings under the Code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 no doubt indicating width of the powers to be unlimited. It seems that there is inbuilt limitation, inherent therein for its exercise consecutively with the nature of the proceeding as also necessity and desirability to fulfill the task or achieve the object.

11. The question at the present stage of the proceeding before the learned IInd Additional Sessions Judge, Chandrapur, would be to apprise itself to find whether there is sufficient ground, made out by the applicant and in the present case by the respondent/State seeking permission for production of the documents. In my view, therefore, discretion is vested with the Trial Court dealing with the case to allow production and issuance of summons. Therefore, it is to be only seen as to whether the Trial Court has judiciously and judicially exercised its discretion. Whenever any Court...considers that production of any document or other thing is necessary or desirable for the purpose of any...enquiry, trial or other proceeding under this Code by or before such Court...such Court may issue a summons to the person in whose possession, power of such or thing is to be believed to require and produce it or at the time and place stated in the summons or order. The question whether the production of a particular document or book is necessary or desirable for the purpose of any trial is one which must be decided by the Magistrate/Court seized with the case. As stated above, in my view, the Court concerned has to exercise its discretion judiciously and judicially in the sense that he must satisfy himself that the document or book has a bearing upon and as relevant to the case. When he is so satisfied, he can pass an order allowing the production in favour of the concerned party/applicant.

12. Learned Counsel Mr. Daga relies on a Judgment reported in 1994 Cr. L.J. 257. In my view, the facts and ratio laid down in the said reported judgment are not applicable to the facts of the present case. It is useful to refer to the Judgment in the matter of Virendra kumar Saklecha v. State of Madhya Pradesh 1987 (2) Crimes 494 : 1987 Cr. L.R.M.P. Notes 185 : 1986 Cr. L.J. 91. In this judgment, the learned Single Judge of the Madhya Pradesh High Court observed that it is not an obligation of the prosecution to file all documents in their custody or possession though they are bound to file documents on which they propose to rely upon. Even if it is accepted that this is a mandatory, obligatory omission to file any particular document alongwith the charge-sheet, is merely an irregularity under Section 464 of the Code. I am fully in agreement with the view taken by the learned Single Judge of Madhya Pradesh High Court.

13. In this case, the learned Additional Sessions Judge has elaborately considered the submissions and points raised before him. The learned Additional Sessions Judge seems to have applied mind to the documents which are tried to be produced on behalf of the prosecution. The learned Additional Sessions Judge also has taken into consideration the fact that the documents intended to be produced are not subsequently created and the prosecution is not trying to fill up the lacuna in this case. The learned Additional Sessions Judge found efforts of the prosecution to be sincere in seeking production of the documents in the interest of justice. The learned Additional Sessions Judge has also observed that full and fair opportunity to the accused i.e. the present applicant by way of cross-examining the witness shall be given on a special request made in this behalf. Possibility of recalling of witnesses already examined if claimed also can be considered. The learned Additional Sessions Judge, therefore, with well reasoned order allowed the application of Exh. 89. The order impugned in this revision application cannot be said to be illegal, improper and/or incorrect. In this view of the matter, the revision application filed by the applicant is merit less and needs dismissal which I hereby direct.

Criminal Revision Application is dismissed.

Rule discharged. No cost.