Gaurav Upadhyaya vs The State Of Assam And Anr
2025 Latest Caselaw 4022 Gua

Gauhati High Court

Gaurav Upadhyaya vs The State Of Assam And Anr on 12 March, 2025

                                                                           Page No.# 1/6

GAHC010264272024




                                                                   undefined

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Pet./1517/2024

            GAURAV UPADHYAYA
            S/O LATE SHYAM SUNDAR UPADHYA
            R/O GOVT. QUARTER NO. B-II/ZONE -II, ASSAM POLICE HOUSING
            COMPLEX, ULUBARI-781007, GUWAHATI, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE PP, ASSAM

            2:SMTI. LEENA DOLEY
            W/O LATE NILOTPAL LAHON

            PERMANENT RESIDENT OF HOUSE NO. 54
            BELTOLA COLLEGE ROAD
            BELTOLA
            KAMRUP (M)
            AND CURRENTLY RESIDING IN THE OFFICIAL RESIDENT OF
            SUPERINTENDENT OF POLICE
            HAILAKANDI-78815

Advocate for the Petitioner   : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A
CHOUDHURY

Advocate for the Respondent : PP, ASSAM, MR J BORAH(R-2),MR H K NATH (R-2),MS. G
GOSWAMI (R-2)
                                                                                     Page No.# 2/6



                                  BEFORE
                HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 12.03.2025

1. Heard Mr. Z. Kamar, the learned senior counsel assisted by Mr. A. Ahmed, the learned counsel appearing for the petitioner. Also heard Mr. R. R. Kaushik, the learned Additional Public Prosecutor for the State respondent as well as Ms. G. Goswami, learned counsel for the respondent No.2.

2. This application under Section 528 of BNSS, 2023 read with Article 227 of the Constitution of India, has been filed by the petitioner, namely, Gaurav Upadhyaya, impugning the order dated 06.11.2024, passed by the learned Special Judge, Karbi Anglong, Diphu, in the POCSO Case No. 37/2021, whereby it had rejected the petition filed by the petitioner to furnish the list of statements, documents, material objects and exhibits not relied upon by the Investigating Officer at the time of filing the charge sheet.

3. The facts relevant for consideration of the instant criminal petition, in brief, are that, on 03.01.2020, the mother of the victim girl, who herself is a Police Officer, had lodged an FIR before the All-Woman Police Station, Pan Bazar, inter-alia, alleging that on 31.12.2019, the present petitioner, who is also a Police Officer, sexually assaulted the minor daughter of the informant.

4. On receipt of the said FIR, All Woman P.S. Case No. 5/2020 was registered under Section 354/354A of the Indian Penal Code, read with Section 10 of the POCSO Act, 2012 and Section 3(1)(xi)(w)(i)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the investigation was initiated. Ultimately, on completion of the investigation, the charge sheet was laid under Section 354/354A of the Indian Penal Code, read with Section 10 of the POCSO Act, 2012. As regards the accusation under offence under Section Scheduled Castes and the Scheduled Tribes Page No.# 3/6

(Prevention of Atrocities) Act, 1989 is concerned, the further investigation is going on.

5. The said case was registered as POCSO Case No. 37/2021 in the Court of the learned Special Judge, Karbi Anglong, Diphu.

6. On 18.01.2024, the copies of documents referred to in Section 207 of the Code of Criminal Procedure, 1973 were furnished to the petitioner.

7. On 06.11.2024, the petitioner had filed an application under Section 207 of the Code of Criminal Procedure, 1973, which was registered as Petition No.1648/2024, whereby, he had prayed for directing the Investigating Officer to furnish a detailed report regarding the documents, materials, etc., which were not submitted before the Court, along with the charge-sheet, and thereafter to furnish the list of the statements, documents, material objects, exhibits, which were not relied upon by the Investigating Officer to the petitioner.

8. The Trial Court by passing the impugned order dated 06.11.2024, rejected the said prayer mainly on the ground that the Court has already furnished all the documents, which were referred to in the Section 207 of the Code of Criminal Procedure, 1973 to the petitioner and the case is fixed for consideration of charges.

9. Mr. Z. Kamar, the learned senior counsel for the petitioner has submitted that the petitioner is also entitled to the list of statements, documents, and material objects which may be in the possession of the Investigating Officer and which are not relied upon by the prosecution side.

10. He submits that the Trial Court was wrong in rejecting the prayer for furnishing the list of documents, etc., which were not relied upon by the Investigating Officer/prosecution side in this case, as law in this regard has already been settled by the Apex Court in a catena of judgments.

11. In support of his submission, the learned senior counsel for the petitioner has relied on the following rulings of the Apex Court:

i. Criminal Trials Guidelines regarding Inadequacies and Deficiencies in Criminal Trials Vs. State of Andhra Pradesh and Others reported in (2021) 10 SCC 598 Page No.# 4/6

ii. Manoj and Others Vs. State of Madhya Pradesh, reported in 2022 Live Law (SC) 510.

12. On the other hand, Ms. G. Goswami, learned counsel for the Respondent No. 2, though, agreeing to on the legal position regarding requirement of furnishing the list of documents, etc., which were not relied upon by the Investigating Officer while submitting the charge-sheet has submitted that the present petition has been filed by the petitioner with the sole motive of delaying the trial and the same will be apparent from his past conduct.

13. She has submitted that though the alleged offence in this case occurred way back on 31.12.2019, however, due to delaying tactics adopted by the petitioner, till date even the charges are yet to be framed and the trial has not commenced.

14. She submits that the past conduct of the petitioner shows that he had filed various vexatious petitions at different level, i.e., in High Court as well as in Supreme Court, only with a view to delay the trial of the case. She has submitted that the next date of the case is fixed on 24.04.2025 for consideration of charges and the petitioner is making all efforts to get an order for stay of the further proceeding of the trial, and his only intention is to delay the progress of the trial.

15. I have considered the submissions made by learned counsel for both sides and have gone through the materials available on record.

16. In the case of Criminal Trials Guidelines regarding Inadequacies and Deficiencies in Criminal Trials Vs. State of Andhra Pradesh and Others (Supra), the Apex Court has observed as follows:

"11. The Amici Curiae pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This Court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208 CrPC, the Magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure Page No.# 5/6

that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under CrPC ["91. Summons to produce document or other thing.--(1) Whenever any court or any officer in charge of a 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 or 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(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."] for their production during the trial, in the interests of justice. It is directed accordingly; the Draft Rules have been accordingly modified. [Rule 4(i)]"

17. In the case of Manoj and Others Vs. State of Madhya Pradesh, (Supra) , the Apex Court has observed that the prosecution, in interest of fairness, should as matter of rule, in all criminal trials, comply with the above rule, and furnish the list of statements, documents, material objects, and exhibits which are not relied upon by the Investigating Officer. The Presiding Officers of the Court in criminal trials shall ensure compliance with such rules.

18. In the instant case, by the impugned order, the prayer of the petitioner for furnishing the list of documents, materials, etc. was rejected mainly on the ground that the petition does not specify which documents remained unfurnished to the defense as well as on the ground that by order dated 18.01.2024, the documents relied upon by the prosecution side had already been furnished to the petitioner.

19. In view of the observations of the Apex Court in the judgments cited above, it Page No.# 6/6

appears that the Trial Court has erred in rejecting the prayer of the petitioner for furnishing him with the list of statements, documents, material objects and exhibits which were not relied upon by the Investigating Officer, as there is a clear mandate of the Apex Court in the above-mentioned judgments to furnish such a list to the accused in addition to the documents, which the prosecution had to furnish to the accused under Section 207 of the Code of Criminal Procedure, 1973.

20. In view of above, this Court is constrained to interfere in the impugned order and modify the same by directing the Investigating Officer to furnish the list of statements, documents, material objects and exhibits which were not relied upon by him while submitting the charge-sheet before the Trial Court.

21. The said list shall be furnished to the Trial Court by the Investigating Officer on or before 04.04.2025 and on getting the said list, the Trial Court shall furnish the same to the petitioner on 08.04.2025. The petitioner is directed to appear before the Trial Court on 08.04.2025 to get the list of statements, documents, material objects and exhibits which were not relied upon by the Investigating Officer.

22. Thereafter, as already fixed, the Court shall proceed to consider the question of framing of charges on the next date fixed, i.e., 24.04.2025.

23. With the above observation, this Criminal Petition is accordingly disposed of.

JUDGE

Comparing Assistant