Bombay High Court
Tarsem Chanu Singh And Ors vs State Of Maharashtra on 4 December, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-AS:37659
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rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3088 OF 2023
Tarsem Chanu Singh & Ors. ] .. Petitioners
vs.
State of Maharashtra ] .. Respondent
Ms.Mallika Ingale, for the Petitioners.
Mr.S.R. Agarkar, APP for the State.
PSI Sunil Sonawane (Pairavi), Charkop Police Station present.
CORAM : BHARATI DANGRE, J
RESERVED ON : 7th November, 2023.
PRONOUNCED ON: 4th December, 2023.
JUDGMENT :
1] The Petitioners who are arraigned as Accused in CR
No.150/2013 registered with Charkop Police Station for the
alleged offence under Section 498(a), 406, 306, 304-B read with
34 of the IPC, have approached this Court for quashing and setting
aside the impugned order dated 11.07.2023, passed below Exhibit
20 in Sessions Case No.206/2013 a/w Sessions Case No.100/2014
by the Sessions Court for Greater Mumbai at Dindoshi, Goregaon,
declining to furnish the copy of the CDR and SDR of the phones of
the deceased and accused Narinder Singh.
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The impugned order has refused the said documents to the
Petitioners as they are not forwarded to the Magistrate alongwith
the fnal report fled under Section 173 of the Cr.P.C. nor the
prosecution has placed the same on record post committal and
therefore, it has been held that, the accused are not entitled to the
copies of the same.
2] Heard Ms. Mallika Ingale for the Petitioners and Mr.S.R.
Agarkar, the learned APP for the State.
The Petitioners are the in-laws of Harsh, the daughter of the
complainant who was married to Petitioner No.5, Narinder Singh
in a marriage ceremony performed on 10.06.2012.
After the marriage, she continued to reside in her
matrimonial house, but after about 3 months, she made grievance
to the complainant about the harassment meted out to her by her
husband and his family members. She gave various instances of
the physical and mental harassment and it was informed by her
that her husband was demanding money and she was often
threatened to bring various valuable articles from her parents.
After few months the couple started residing separately in
Mumbai and as per the complainant, the harassment continued
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despite the couple resided separately from the matrimonial house
in Punjab.
On 07.06.2013 the complainant received a phone call from
his daughter that she had found evidence of her husband's affair
with various girls and her husband had harassed her and had told
her to put an end to her life or else he will kill her.
This resulted in the subject CR in which the Petitioners
were arraigned as accused and subjected to trial.
3] In the Sessions Case, an application was moved on behalf of
the accused persons to the following effect :-
"1. The prosecution has furnished form E i.e. brief facts of
the case (Add separate chargesheet if necessary).
2. The same confrms that accused Narendra Singh and
deceased Harsh Jassal mobile numbers have been taken and
the reports of CDR and SDR have been received by them. The
same has not been furnished to the accused.
3. In that respect a separate application came to be
preferred on 05.11.2022 vide receipt with serial no.373710 in
Book no.841 dated 05.11.2022. The same is required for the
defence.
4. In the interest of justice the prosecution be directed to
furnish the CDR and SDR record as mention in Form E of the
charge sheet."
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4] It is this application which came to be rejected by the
learned Judge and by Section 207 of the Code came to be
reproduced in the order and the rejection was worded in the
following words :-
"6. From the plain reading of the aforesaid
provision, it is very clear that in so far as documents or
relevant extract thereof are concerned, copies thereof are
required to be supplied to the accused, if the documents or
relevant extract thereof are forwarded to the Magistrate along
with police report under sub section (5) section 173 of Cr.P.C.
7. In the instant case, on going through the entire
chargesheet it appears that the report of the CDR and SDR are
not forwarded to the Magistrate with the Final Report under
Sec.173 of Cr.P.C. nor the prosecution post committal of the
case to this Court has placed on record the same. Therefore,
the defence is not entitled to seek the directions to the
prosecution to supply the copies of reports of CDR and SDR."
5] The above order is assailed in the present Writ Petition and
Ms.Mallika Ingale, the learned counsel would submit that Section
207 of the Code ensure right of the Accused to a fair investigation
and fair trial and the accused is entitled to inspect all documents
in custody of the Court at advance stage of trial. She would rely
upon the decision of the Apex Court in the case of Sidhartha
Vashisht alias Manu Sharma vs. State (NCT of Delhi) (2008) 5
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SCC 230 and V.K. Sasikala lvs. State Represented by
Superintendent of Police, (2012) 9 SCC 771 , as well as the
decision of the Apex Court in Criminal trials Guidelines Regarding
Inadequacies and Defciencies, In Re vs. State of Andhra Pradesh
and Others, (2021) 10 SCC 598.
Apart from this, she would also rely upon the latest decision
of the Apex Court in the case of Manoj and Ors. vs. State of
Madhya Pradesh, (2023) 2 SCC 353.
6] Section 207 of the Cr.P.C. deserve a reproduction and it
reads as under :-
"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 frst 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 offcer
under sub-section (6) of section 173;
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(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 offcer 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 satisfed that
any document referred to in clause (v) is voluminous, he shall,
instead of furnishing the accused with a copy thereof, direct
that he will only be allowed to inspect it either personally or
through pleader in Court."
7] The position as regards the rights of the accused cannot be
doubted, as the accused is entitled for a fair investigation and a
fair trial.
The right of an accused to ask for documents that he may be
entitled to is one of the signifcant facets of just, fair and
transparent investigation. The documents whether relied on or
not by the prosecution, but fled in the Court and which would
help in absolving him of accusations. Denying access to the
documents would defnitely cause prejudice to him in properly
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defending his case and this would amount to denial of fair trial.
8] At the time of fling of charge-sheet/fnal report under
Section 173 Cr.P.C. the police offcer who furnish a report on
completion of investigation is duty bound to forward to the
Magistrate empowered to take cognizance of the offence on the
police report, a report in the form prescribed by the State
Government, stating that :-
"(a) the names of the properties;
(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 sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-
DA, 376-DB) or section 376-E of the Indian Penal Code (45 of
1869)]
Sub-section (5) of Section 173 further provide as under :-
"(5) When such report is in respect of a case to which section
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170 applies, the police offcer shall forward to the Magistrate
along with 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."
9] Apart from this provision, Section 207 in the Code , which
is included in Chapter XV of the Code also make it imperative for
the Magistrate to furnish to the accused the documents specifed
therein which may include the police report, FIR, statements
recorded by the police under Section 161 Cr.P.C., who are to be
examined as witnesses, the confessions and statements, if any,
recorded under Section 164 Cr.P.C. and also any other document
or relevant extract thereof forwarded to the Magistrate with the
police report under sub section (5) of Section 173 Cr.P.C.
The aforesaid documents are to be supplied to the accused
as the prosecution is likely to rely upon the same in order to
establish his guilt. However, it is possible that the Investigating
Offcer during the course of investigation has collected several
documents/other material which are exculpatory in nature and
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therefore the Investigating Offcer may have the desire to
withhold the same from the Magistrate as well as the Court taking
cognizance of the offence. This may include statements of
witnesses recorded during the course of investigation which are
not inculpatory in nature, but may tilt towards the accused in
proving his innocence. The temptation not to bring these
documents before the competent Court and not to furnish the
same to the accused may be gallore and this may cause grave
prejudice to the accused.
It is quite possible that when the accused participate in the
investigation, he has rendered certain documents to the
Investigating Offcer which may help him in proving his innocence
and absolving him of the accusation levelled against him. But the
Investigating Offcer may intentionally not accept the said
documents or even if he take it on record as a part of
investigation, by referring to the same in the police diary, he may
choose not to present it before the Court as it may weaken the
case of the prosecution.
Though Section 173, 207 and 208 Cr.P.C. contemplate as to
what documents should be supplied to the accused, such
statements, documents, material objects and exhibits which were
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seized during investigation, but not forwarded to the Magistrate/
Court taking cognizance was therefore kept away from the
accused and he could not have an access to the same.
10] Sensing the diffculty in such a situation, where such
documents/ exhibits, were not supplied to the accused though
having been collected by the prosecution or the police, but which
may be exculpatory in nature or assist the accused in disproving
his guilt, the Apex Court in a Suo Moto Writ Petition, adverted to
this aspect of the matter and expressed an opinion that while
producing the list of statements, documents and material objects
under Section 207, 208 of the Cr.P.C. the Magistrate shall also
ensure that the list of other materials such as statements or
objects/documents seized but not relied on, should also be
furnished to the accused. It was expressed that it will ensure that
in case the accused is of the view that such materials are
necessary to be produced for proper and just trial, appropriate
orders can be obtained under the Code for production of the same
during the course of trial in the interest of justice.
11] The Apex Court directed the draft Rules of Criminal Practice
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2021 to be formulated and all the High Courts were issued
directions to take expeditious steps to incorporate the said draft
Rules as a part of rules governing criminal trials and even the
State Government was directed to render its co-operation in this
regard, so that the notifcation of the draft rules was to be
published.
Rule 4 of the said Draft Rules reads thus :-
"4. Supply of Documents Under Sections 173, 207 and 208
Cr.P.C.
Every Accused shall be supplied with statements of
witness recorded under Sections 161 and 164 Cr.PC and a list
of documents, material objects and exhibits seized during
investigation and relied upon by the Investigating Offcer (I.O)
in accordance with Sections 207 and 208, Cr. PC.
Explanation: The list of statements, documents,
material objects and exhibits shall specify statements,
documents, material objects and exhibits that are not relied
upon by the Investigating Offcer."
In the wake of the aforesaid directions issued by the Apex
Court, which have been held to be mandatory, any material/
documents collected by the prosecution shall be furnished to the
accused by segregating it as the material though collected during
investigation, but not produced before the Magistrate/the Court
taking cognizance.
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12] In the present case, the charge sheet reveal that CDR and
SDR of the mobile phones of accused Narinder and deceased
Harsh were collected by the investigating agency and have been
received from appropriate source, but the same are not furnished
to the accused.
The directions issued by the Apex Court in form of draft
criminal rules has made it imperative for the prosecution to
furnish a list of statements/documents, material objects and
exhibits which are not relied upon by the Investigating Offcer
though seized during investigation and upon such list having been
furnished, the accused is entitled to seek production of such
documents from the Investigating Offcer. Since in the present
case, it is clearly admitted that the CDR and SDR which are
already collected by the Investigating Offcer, the impugned order
refusing to furnish the same to the accused as per his request,
cannot be sustained and the documents deserve to be produced by
the Investigating Offcer under Section 91 of the Cr.P.C. and copies
of the same shall be furnished to the accused.
13] In the wake of above, by setting aside the impugned order
dated 11.07.2023, the Investigating Offcer is directed to furnish
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copies of CDR and SDR of the phones of deceased and accused,
which have been already collected by the prosecution as indicated
in the charge sheet, but the copies of which are not annexed to the
charge sheet.
The necessary compliance shall be ensured within period of
four weeks from today, as the Petitioners deserve a fair trial and
according to the learned counsel Ms. Ingale, it will assist the
Petitioners who face the trial to prove their innocence.
For reasons recorded above, Writ Petition is made absolute
in the aforesaid terms.
Needless to sate that till the aforesaid compliance is ensured
the proceedings before the trial Court shall not proceed ahead.
[BHARATI DANGRE, J]
