Uttarakhand High Court

Suresh Sharma vs State Of Uttarakhand And Another on 13 February, 2025

Author: Ravindra Maithani

Bench: Ravindra Maithani

     HIGH COURT OF UTTARAKHAND AT NAINITAL

       Criminal Misc. Application No. 80 of 2025
Suresh Sharma                                      ..........Petitioner

                                   Vs.

State of Uttarakhand and another                  ........ Respondents

Present :   Mr. Vinod Sharma and Mr. Kamlesh Budhlakoti, Advocates for the
            petitioner.
            Mr. Akshay Latwal, Brief Holder for the State/respondent no.1.
            Mr. Pankaj Chauhan, Advocate and Mr. Jeetender Gupta, Advocate
            (through video conferencing) for respondent no.2.


                              JUDGMENT

Per : Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition under Section 528

of the Bharatiya Nagarik Suraksha Sanhita, 2023 is made

to order dated 28.01.2025, passed in Criminal Case

No.1225 of 1999, State vs. Suresh Sharma, by the court

of Chief Judicial Magistrate, Gopeshwar, District Chamoli

("the trial"). By it, an application under Section 207 of

the Code of Criminal Procedure, 1973 ("the Code"), filed

by the revisionist seeking copies of certain documents has

been rejected.

2. Heard learned counsel for the parties and

perused the record.

3. It appears that the trial is pending under Section

302 IPC, which was pending since 1999. The petitioner

was then declared absconder by an order dated

28.01.2021 and, thereafter, in the absence of the

revisionist evidence was recorded on 05.05.2003, under

Section 299 of the Code. Long, thereafter, on 26.01.2025,

the revisionist was arrested and produced before the

court. He was provided the copies of documents, as

required under Section 207 of the Code. But, the

revisionist did file an application paper no.158-D seeking

the copies of the following documents:-

"1. After the alleged incident dated 28/04/1999 at about 9:00 to 11:00 am police of police station Badrinath sent a first and foremost information/wireless message from Badrinath to District Headquarters Gopeshwar about murder of Balkrishan Bhat. Please provide this copy.

2. Particulars of Criminal cases registered against deceased Balkrishan Bhat in different police stations of District Chamoli.

3. Number of Process dates and yers under section 107 CrPC security for keeping the peace, issued by concerned executive magistrates against Balkrishan Bhat in distrust Chamoli. Those all above documents are not on record. As such kindly summon and provide the same."

4. After hearing the parties the court rejected the

said application, filed by the petitioner holding that

documents of which copies are required, are not part of

the investigation.

5. Learned counsel appearing for the petitioner

would submit that the order is bad in the eyes of law

because an accused has a right to fair trial. He should be

provided all the documents which may bring justice. He

would submit that the documents may not be withheld by

the prosecution.

6. In support of his contention learned counsel for

the petitioner placed reliance on principle of law, as laid

down by the Hon'ble Supreme Court in the cases of:-

a) Criminal Trials Guidelines Regarding Inadequacies and Deficiencies In Re. vs. State of Andhra Pradesh and others, (2021)10 SCC, 598.

b) Suresh Pal and another vs. State of Bihar and another, 2006 SCC OnLine Pat 1160.

c) Jamuna Chaudhary and others vs. State of Bihar, (1974)3 SCC, 774.

d) Narendra Kumar Soni vs. State of Rajasthan, Through P.P., S.B. Criminal Miscellaneous (Petition) No.4342/2024, High Court of Judicature for Rajasthan, Bench at Jaipur.

7. In the case of Criminal Trials Guidelines (supra),

reference has been made to the para 11 of the judgment,

which reads 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 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)]"

8. Similarly, in the case of Suresh Pal (supra),

reference has been made to observation made by the

Hon'ble Supreme Court in para 6 of the judgment, in

which, the Hon'ble Supreme Court observed as, "If the

prosecution has with it evidence which would throw

light upon the true facts then it is for the prosecutor

to bring those facts on record. The prosecutor is the

first Judge of the truth of the case. He cannot

withhold documents only with a view to advance the

case of the informant. He has to advance the cause of

justice in bringing an accused to trial. The prosecutor

would be failing in his duty if the aforesaid

documents, the existence of which is not denied, is

not brought on record. It would lead to miscarriage of

justice. .......................................................................

..................................................."

9. In the case of Jamuna Chaudhary also, the

Hon'ble Supreme Court inter alia observed that, " The

duty of the Investigating Officers is not merely to

bolster up a prosecution case with such evidence as

may enable the Court to record a conviction but to

bring out the real unvarnished truth."

10. In the case of Narendra Kumar Soni (supra), the

Hon'ble Rajasthan High Court interpreted principles of

natural justice and in para 15 observed as follows:-

"15. As principles of natural justice are integral part of

fair trial under Article 21 of the Constitution of India, any

denial of the best available evidence or effective and

substantial hearing to accused in proving defence would

amount to denial of free and fair trial."

11. Learned State counsel would submit that the

documents of which copies are required by the revisionist

is not part of the police record. They were not on record.

12. Learned counsel for the victim would submit that

the petitioner may bring the documents on his own. It is

also argued that the principles of law, as has been relied

by the petitioner only laid down the principle that the

Investigating Officer should collect all the material that

may assist the court to bring out the truth. It is also

submitted that only copies of such documents are to be

provided which had been collected by the Investigating

Officer during investigation and no other document may

be provided at this stage.

13. In fact, in the instant case the provision of

Section 207 of the Code is to be applicable. Section 207

reads as follows:-

"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 first 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 officer under sub- section (6) of Section 173;

(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 officer 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 satisfied 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."

14. Admittedly, in the instant case, the copies of the

documents of which copies are sought by the petitioner

are not part of the police record. They have not been

collected by the Investigating Officer during investigation.

It is true that the Investigating Officer has to collect all

the material which may unearth the truth leaving it to the

court to take a final call with the matter while deciding

the guilt or otherwise of an accused. Copies of all such

documents that are collected by the Investigating Officer

are to be provided to an accused when he appears at the

stage of 207 or 208 of the Code, as the case may be.

15. It does not mean that no further documents may