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2016 (7) TMI 1697
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....etailed report under S. 173 Cr.P.C was filed against the respondent nos. 2 to 5 on 13.01.2014. When the matter was pending for the purpose of framing of charges an application dated 25.11.2014 and a supplementary application dated 28.02.2015 were moved by the respondent nos. 2 to 5 seeking direction to prosecution to make disclosure to the effect that all relied / unrelied documents and statements recorded under S. 161 Cr.PC collected by the Investigating Officer during the investigation have been supplied to the accused persons and the prosecution be further directed to supply the documents which were not filed alongwith the charge-sheet but collected during investigation. Vide the impugned order, the application was allowed and the respondent no.1 was directed to supply the documents. Counsel further submits that while passing the impugned order, learned Metropolitan Magistrate overlooked the mandate S.91 of Cr.PC. It is settled law that S. 91 of Cr.PC cannot be invoked by the accused persons at the preliminary stage of framing of charge. Further if the statement has been reduced into writing under S. 161 (3) of the Code then statement of such persons as the prosecution proposes ....
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....wherein she alleged that on 05.07.2013, when she reached the school at around 7.50 am to mark her attendance, she found that her attendance record has been mutilated for the period from 01.07.2013 to 04.07.2013. She went to the office of principal to seek his clarification as to why her attendance has been mutilated by red pen. The respondent nos. 2 to 4 were sitting in the principal's office. The respondent no.2 passed obscene remarks using abusive language with an attempt to slap. He got up from his seat and tried to assault her. The respondent no.3 also stood and started using shameful gestures with obscene remarks. Earlier also, he had passed incident and shameful comments. The respondent no.4 also got up from his seat and abused her. During this time, the respondent no.5 also joined them and tried to overpower her. She was in distress and had no other option but to call the police. Then she called at telephone number 100. 6. On the basis of her statement, the instant FIR under S. 509 IPC was registered. Statement of complainant was also recorded under S. 164 Cr.PC by the learned Metropolitan Magistrate. In order to verify the allegations of complainant as well as authentici....
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....have been constituted - one of the group is supporting the allegations of the complainant and another group is supporting the defence of the accused persons. The Investigating Officer had placed with the charge-sheet only the statements of the witnesses who are supporting the allegations of the complainant as they are the only witnesses proposed to be examined by the prosecution. By replying upon CBI v Ashutosh (supra), direction was given to the concerned SHO to supply all the statements of witnesses recorded in writing during investigation to the accused persons whether the same favours prosecution or the defence. SHO was further directed to supply copies of preliminary inquiry report, internal complaint, committee report, complaint dated 05.07.2013 filed by the complainant to the management of the school, if all these documents are available in the police file. 8. Feeling aggrieved the present petition has been filed by the petitioner / complainant. 9. Before adverting to the facts of the present case, it is necessary to consider the relevant provisions of Sections 173 and 207 of Cr.P.C., which read as under: - "173. Report of police officer on completion of inves....
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....istrate 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 part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the interests 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 stating 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 or reports....
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....ons following reports: - (i) Copies of police report; (ii) First Information Report; (iii) Statements recorded under sub-section (3) of Section 161 Cr.P.C. of all the 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 of Cr.P.C.; (iv) The confessions and statements, if any, recorded under Section 161 of Cr.P.C.; and (v) Any other document or relevant extract thereof forwarded to the Magistrate with police report under sub-section (5) of Section 173 of Cr.P.C. 11. A bare reading of provisions contained in Section 207 of Cr.P.C. shows that it is the obligation of the Magistrate to see that all the documents which are necessary for the accused for proper conduct of his defence, are furnished to him well before the trial. 12. A conjoint reading of section 173(5), 173(6) and first proviso attached to Section 207 of Cr.P.C. leaves no scope of doubt that it is the bounden duty of the police officer to forward to the Magistrate all the statements mentioned in subsection (5)(b) ....
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....a vs. State of Delhi', ILR (2007) I Delhi 1005: "4. It is settled law that fair and just investigation is a hallmark of any investigation. It is not the duty of the Investigating Officer to strengthen the case of prosecution by withholding the evidence collected by him. If an Investigating Officer withholds the evidence collected by him, the accused has a right to rely upon that evidence and tell the Court to take that evidence into account while framing the charges. The Court while framing charges may not take into account the defence of the accused or the documents in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the Court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. If it is brought to the notice of the Court by the accused that some of the evidence or documents have been withheld by the Investigating Officer or the prosecution deliberately, so that truth does not come out before the Court, the Court, before framing of charge can order the Investigating Officer to place the entire investigation before....
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....nother discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents refer to Sub-section 5 of the Section. xxxx xxxx xxxx 216. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, what in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the Court is absolute and it must be adhered to by the prosecution and the Court must ensure supply of documents/statements to the accused in accordance with law. Under proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the state....
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....estigation as per the requirement of Section 170(2) of the Code. xxxx xxxx xxxx 221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bonafidely and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defense, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially." 16. Relying upon this judgment, in Ashutosh Verma (supra), this Court observed that the petitioner cannot be denied an access to the documents in respect of which prayers have been made in the petition merely because CBI does not consider it relevant. If there is a situation that arises wherein an accused se....