Bhagyashree Prashant Wasankar vs State Of Maharashtra, Thr. Police ...
2021 Latest Caselaw 9247 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH AT NAGPUR


               Criminal Writ Petition No. 688 of 2020


     PETITIONER :                   Bhagyashree Prashant Wasankar
                                    Aged about 38 years,
                                    Occupation : Business,
                                    R/o Plot No. 247, Hill I road,
                                    Shivaji Nagar, Nagpur

                                      Vs.

     RESPONDENT :                   The State of Maharashtra, Through
                                    Police Station Officer, Police Station,
                                    Ambazari, Nagpur Now with EOW



       Mr. D.V. Chauhan, Advocate with Mr. C.B. Barve, Advocate for
       the petitioner
       Ms. Shamsi Haider, APP for the respondent


                                     CORAM :                MANISH PITALE, J.

                                     RESERVED ON :          05.07.2021

                                     PRONOUNCED ON: 15.07.2021

              JUDGMENT

Rule. Rule is made returnable forthwith.

Heard finally with the consent of learned counsel

appearing for rival parties.

2. The question that arises for consideration in

this Writ Petition is, as to whether a witness appearing

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for the prosecution in a sessions trial can produce

documents which were not part of the charge-sheet filed

before the Court and whether such procedure for

production of documents directly by the prosecution

witness is contemplated under the provisions of the

Code of Criminal Procedure, 1973 (Cr.P.C.).

3. The petitioner is one of the accused persons

in the trial pending before the Sessions Court i.e.

Additional Sessions Judge-11 at Nagpur. The offences

alleged against the petitioner and accused persons are

under Sections 420, 406, 409, 506 and 120-B of the

Indian Penal Code, as also Sections 45(1)(a) and 45(s)

of the Reserve Bank of India Act, 1949, Section 24(1)

and Section 27 of the Securities & Exchange Board of

India Act, 1992 and subsequently added offence under

Section 3 of the Maharashtra Protection of Interest of

Depositors (In Financial Establishments) Act, 1999.

4. It is the case of the prosecution that as a

consequence of the said alleged offences committed by

the petitioner and other accused persons, a large

number of investors were defrauded. The Investigating

Officer had seized various documents relating to the

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alleged offences and multiple bulky charge-sheets

running into thousands of pages were filed before the

Sessions Court.

5. During the course of the trial, a witness, Dr.

Ashok Gajanan Lanjewar, was sought to be examined by

the prosecution. The said witness moved an application

bearing Exh. No.1106, before the Sessions Court seeking

permission to produce additional documents. It was

simply stated in the application that the said witness had

misplaced the documents and since they were now

found, he was seeking to place them before the Sessions

Court. The said application was opposed by the

petitioner and other accused persons, contending that

such an application was not maintainable under the

provisions of the Cr.P.C. The petitioner placed much

emphasis before the Sessions Court on the scheme of the

Cr.P.C. and the role of Public Prosecutor, while

contending that the attempt on the part of the witness to

produce documents directly in such a manner was

unknown to the procedure contemplated under the

Cr.P.C. It was submitted that grave prejudice was caused

to the accused persons, including the petitioner and that

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additional documents, if any, could be produced only

upon further investigation being undertaken under

Section 173(8) of the Cr.P.C. by the Investigating Officer.

6. By the impugned order dated 11/12/2020,

the Sessions Court allowed the aforesaid application at

Exh.1106. The contentions raised on behalf of the

petitioner and other accused persons were rejected.

Reference was made to Sections 242 and 294 of the

Cr.P.C., as also certain judgments of the Hon'ble

Supreme Court and this Court.

7. Aggrieved by the impugned order, the

petitioner filed the present Writ Petition, wherein notice

was issued on 22/12/2020. The learned APP appeared

on behalf of the respondent - State. An application for

intervention was filed on behalf of the aforesaid witness

i.e. Dr. Ashok Gajanan Lanjewar. But, when this Petition

was taken up for hearing on 05/07/2021, none

appeared on behalf of the applicant seeking

intervention.

8. Mr. D.V. Chauhan, learned counsel appearing

for the petitioner reiterated the objections that were

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raised before the Sessions Court regarding the very

maintainability of the application filed on behalf of the

said witness, seeking permission to file additional

documents on record. The learned counsel placed

emphasis on the scheme of the Cr.P.C., referring to

various provisions thereof, to emphasize upon the role of

the Investigating Officer and that of the Public

Prosecutor in a sessions trial. It was submitted that the

application filed on behalf of the witness could not be

permitted in terms of the procedure contemplated under

the Cr.P.C. It was submitted that grave prejudice would

be caused to the accused persons if such method of

witnesses placing documents on record was to be

permitted and that it would be a free for all between the

complainant / witnesses on one hand and accused /

defence on the other. It was submitted that as per the

judgment of the Hon'ble Supreme Court in the case of

Central Bureau of Investigation Vs. R.S. Pai and Another

(2002) 5 SCC 82, it was laid down that the Investigating

Officer certainly had power under Section 173(8) of

Cr.P.C. to carry out further investigation and thereupon

to place on record additional documents in support of

the case of the prosecution.

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9. It was submitted that in the absence of such

procedure being followed, the witness could not be

permitted to directly produce additional documents

before the Sessions Court during the course of the trial.

The learned counsel for the petitioner also invited

attention of this Court to the judgment in the case of

Niwas Keshav Raut Vs. The State of Maharashtra (at the

instance of Miraj Rly. Police Station), passed by this

Court reported in 2015 SCC OnLine Bom 4214. It was

submitted that the said judgment pertained to Section

294 of the Cr.P.C. and in the facts and circumstances of

the present case, the said provision had no applicability.

By inviting attention to the said provision, it was

submitted that only the prosecution or the accused,

could produce documents before the Court under the

said provision, followed by procedure of admission and

denial. On this basis, it was submitted that the said

provision would also not come to the rescue of the

witness in the present case. By referring to the judgment

of the Hon'ble Supreme Court in the case of Samsher

Singh Verma Vs. State of Haryana (2016) 15 SCC 485, it

was submitted that the object of Section 294 of Cr.P.C.

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was to accelerate the pace of the trial and it had nothing

to do with the entitlement of a witness to directly

produce documents before the Sessions Court during

the course of the trial.

10. Ms. Shamsi Haider, the learned APP said that

she could not dispute the position of law laid down by

the Hon'ble Supreme Court in the case of Central Bureau

of Investigation Vs. R.S. Pai and Another (supra). It was

submitted that the procedure contemplated under the

Cr.P.C. did not provide for any such procedure as

permitted by the Sessions Court in the impugned order.

11. As noted above, although an application for

intervention was filed on behalf of the said witness,

none appeared on behalf of the applicant when this

petition was finally heard on 05/07/2021. Despite non-

appearance on behalf of the witness seeking

intervention, this Court is taking into consideration the

contentions raised on behalf of the witness, as

manifested in the application for permission to file

additional documents (Exh.1106) filed before the

Sessions Court. This Court proposes to examine as to

whether such an application is maintainable in the eyes

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of law.

12. A perusal of the material on record in the

present case shows that the aforesaid application at

Exh.1106 was filed on behalf of the said witness in order

to produce additional / original documents in the form

of receipts and vouchers in support of the statement of

the witness about having invested amounts with the

accused persons and having been defrauded in the

process. There is no provision of law under which the

said application has been filed. It needs to be examined

whether the Sessions Court could entertain such an

application under the provisions of the Cr.P.C. pertaining

to conduct of sessions trials.

13. There is no dispute about the fact that the

said witness is one of the witnesses sought to be

examined by the prosecution in order to prove its case

against the accused, including the petitioner. As per the

procedure contemplated under the Cr.P.C., upon

completion of investigation, the Investigating Officer

under Section 173 of Cr.P.C. submits a final report.

Under Section 173(5) of the Cr.P.C. the Investigating

Officer forwards to the Magistrate all documents on

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which the prosecution proposes to rely and statements

of witnesses recorded under Section 161 of the Cr.P.C.

The report or charge-sheet along with all its

accompaniments is also served upon the accused so as to

give fair opportunity to the accused to prepare his / her

defence. In other words, the documents filed along with

charge-sheet are the material upon which the Public

Prosecutor ultimately relies when the case is committed

to trial before the Sessions Court. In the present case,

there is no dispute about the fact that a sessions trial is

being conducted against the accused, including the

petitioner, which is governed by Chapter XVIII of the

Cr.P.C. pertaining to trial before the Court of Sessions.

Sections 225 to 237 provide the procedural framework

on the basis of which the sessions trial is conducted.

14. Upon the accused pleading not guilty under

Section 230 of the Cr.P.C., a date is fixed for prosecution

evidence and under Section 231 thereof, on the date so

fixed, the Sessions Court proceeds to take all such

evidence as may be produced in support of the

prosecution. Such evidence includes the recording of

evidence of the prosecution witnesses. As noted above,

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the documents upon which the prosecution seeks to rely

are placed on record along with charge-sheet, copies of

which are furnished to the accused.

15. In the present case, it is at the stage of

examination of the aforesaid witness that the said

witness filed the application at Exh.1106, seeking to

directly produce additional documents during the course

of trial before the Sessions Court. There is no reference

to any provision under the Cr.P.C. invoked by the witness

for producing the documents directly in such a manner.

The accused, including the petitioner, vehemently

opposed such an attempt on behalf of the witness,

contending that the application was not maintainable.

The Sessions Court rejected the contentions raised on

behalf of the accused and allowed the said application,

the consequence of which is that the documents that are

not part of the charge-sheet and relied upon by the

prosecution, have directly come on record in the

sessions trial.

16. In the context of the specific contentions

raised on behalf of the petitioner, it is necessary to refer

to the manner in which sessions trials are conducted

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under the Cr.P.C. and the role of the Public Prosecutor

while conducing such a trial. Public Prosecutors are

appointed under Section 24 of the Cr.P.C. and Section

225 of Cr.P.C. specifically provides that in every trial

before the Court of Sessions the prosecution be

conducted by the Public Prosecutor. Section 226 of

Cr.P.C. provides that the Prosecutor shall open his case

by describing charge against the accused and stating

that he proposes to prove the guilt of the accused. The

role of the Public Prosecutor in the scheme of the Cr.P.C.

is that of an independent office which assists the

Sessions Court during the course of the trial to ascertain

the truth of the allegations and charges levelled against

the accused, in a fair manner. This is precisely the

reason why the counsel for the complainant or victim is

permitted to only assist the Prosecutor and not to lead

the charge during the course of a sessions trial. There is

every possibility of a sessions trial degenerating into a

vindictive battle between the complainant / victim on

the one hand and the accused on the other. It is the

Prosecutor's office that leads the charge for the reason

that it is the State which prosecutes the accused to prove

the charge beyond reasonable doubt and the State acts

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on behalf of the society at large, because the offences

alleged against the accused in sessions trial, by their

very nature are offences against the State/society.

17. The Hon'ble Supreme Court has laid down in

the cases of Shiv Kumar Vs. Hukam Chand (1999) 7 SCC

467, J.K. International Vs. State (2001) 3 SCC 462,

Sundeep Kumar Bafna Vs. State (2014) 16 SCC623 and

Dhariwal Industries Ltd. Vs. Kishore Wadhwani (2016

10 SCC 378, that in a Sessions Trial the public

prosecutor leads the charge and that the trial is

conducted by the public prosecutor. Even the counsel

engaged by the informant, victim or aggrieved person

has to act under the directions of the public prosecutor,

who represents the State in a Sessions trial, thereby

showing the paramount role of the public prosecutor in

Sessions trials under chapter XVIII of the Cr.P.C.

consisting of sections 225 to 237.

18. It is the Public Prosecutor, who makes the

strategic call as to which of the witnesses are to be

examined and which of them are to be dropped. It is for

the Public Prosecutor to take a call as to the documents

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on which reliance is to be placed during the course of

the trial and it is for this reason that all such documents

are placed on record along with the charge-sheet, with

copies thereof being furnished to the accused persons.

This is to afford the accused persons a fair opportunity

to prepare their defence. In these circumstances, it

becomes clear that the Cr.P.C. does not contemplate any

procedure for a witness to directly produce documents

during the course of trial. The procedure known to law

whereby additional documents can be produced on

record and then relied upon in a sessions trial is through

the channel of further investigation, contemplated under

Section 173(8) of Cr.P.C., as held by the Hon'ble

Supreme Court in the case of Central Bureau of

Investigation Vs. R.S. Pai and Another (supra).

19. Recourse to Section 294 of the Cr.P.C. can

also not be taken for a witness to claim that he could

directly produce additional documents during the course

of trial or during the course of recording of his evidence.

Section 294 of the Cr.P.C. pertains to no formal proof of

certain documents and it opens with the words "Where

any document is filed before any Court by the

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prosecution or the accused", thereby demonstrating that

the said provision is applicable only when a document is

sought to be produced either by the prosecution or the

accused and not any third party like a witness. In fact,

in the judgment in the case of Shamsher Singh Verma

Vs. State of Haryana (2016) 15 SCC 485, the Hon'ble

Supreme Court has referred to the object of Section 294

of Cr.P.C. and it has been held that same is for

accelerating the pace of trial, by avoiding waste of time

in recording unnecessary evidence. The judgment of this

Court in the case of Niwas Keshav Raut Vs. The State of

Maharashtra (supra) lays down that Section 294 of

Cr.P.C. does not place any embargo upon the prosecution

or the accused to file a document at a stage subsequent

to filing of the charge-sheet. There can be no quarrel

with the said proposition. Yet, it cannot come to the aid

of the witness in the present case, who has sought

permission of the Sessions Court to directly produce

documents during the course of trial and at the time of

recording his evidence.

20. A perusal of the impugned order shows that

there is a reference made to Section 242 of the Cr.P.C. A

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perusal of the said provision would show that it pertains

to the power of the Magistrate to issue summons to any

witness on the application of the prosecution, directing

such witness to produce any documents or thing. In this

provision also, the words "on the application of the

prosecution", have been used. Even otherwise, Section

242 of the Cr.P.C. is found in Chapter XIX pertaining to

trial of warrant cases by the Magistrate. But, in the

present case, the Court below is concerned with a

sessions trial under Chapter XVIII of the Cr.P.C.

Therefore, reference to Section 242 of the Cr.P.C. by the

Court below is also misplaced.

21. A perusal of the provisions of the Cr.P.C. and

the entire scheme contemplated therein demonstrates

that there is no provision available for a witness to

directly seek production of additional documents during

the course of sessions trial and at the time of recording

of his / her evidence. The Sessions Court in the present

case failed to appreciate this aspect of the matter. While

passing the impugned order, the Sessions Court also

failed to appreciate that permitting such production of

additional documents by the witnesses directly would

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prejudice the accused persons by depriving them of a

fair opportunity to prepare their defence. The whole

purpose of filing of charge-sheet, upon completion of

investigation along with documents upon which the

prosecution desires to place reliance, would be defeated

if witnesses are permitted to directly produce additional

documents in such a manner.

22. The additional documents could be produced

by following the procedure of further investigation as

contemplated under Section 173(8) of Cr.P.C. and the

Prosecutor taking a call as to whether such documents

need to be produced in order to prove the charge

against the accused.

23. In view of the above, it is found that the

impugned order is unsustainable. Accordingly, the Writ

Petition is allowed and the impugned order is quashed

and set aside.

24. Needless to say, the additional documents

sought to be relied upon could be produced before the

Sessions Court in the trial, only in accordance with

procedure known to law and not otherwise.

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25. In view of disposal of Writ Petition, Criminal

Application (APPW) No. 50 of 2021, stands disposed of.

Rule is made absolute in above terms.

JUDGE

MP Deshpande