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Case Number

S.B Criminal Misc. Petition No. 851 of 2014

Attorney(S)

Vimal Choudhary with Gaurav Choudhary, for Petitioner;
Prakash Thakuria, Public Prosecutor, for State;
J.P Goyal, Sr. Advocate with Rahul Ghiya, for Respondent.

Judges

Prashant Kumar Agarwal, J.

Acts

Section 311 of the Code of Criminal Procedure,
provisions of Section 91 and 311 Cr.P.C
sub-section (2) of Section 301 Cr.P.C,
sub-section (1) of Section 91 Cr.P.C
Section 91 Cr.P.C, Court
Section 190(1)(b) Cr. P.C,
Section 173(8) Cr. P.C
Section 156(3) Cr.P.C
Section 231 Cr.P.C,

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

A written complaint was filed by the respondent-complainant on 22.7.1999 against the accused-petitioner for offences under Sections 420 and 406 IPC. The matter was sent for investigation under Section 156(3) Cr.P.C and FIR No. 278/99 was registered on 2.8.1999. After investigation, a charge-sheet (containing photostat copies of three documents collected during investigation but not the originals) was filed and cognizance was taken on 2.11.1999. By order dated 3.5.2008, only an offence under Section 406 IPC was charged and the trial commenced.

During trial, on 3.8.2009 some original documents were filed before the trial Court on behalf of the respondent-complainant. The complainant's examination-in-chief was recorded on 27.11.2009 and some of these documents were exhibited; the complainant was partly cross-examined thereafter. On 12.1.2010 the accused-petitioner filed an application seeking removal of documents exhibited as Ex.P1 to Ex.P9 on the ground that these were not collected during investigation and were not filed along with the charge-sheet and had been filed without the trial Court’s permission. The trial Court dismissed that application by order dated 18.7.2013. The accused-petitioner filed the present Criminal Misc. Petition under Section 482 Cr.P.C seeking to set aside the trial Court's order.

Legal Issues Presented

Whether the learned trial Court committed illegality or perversity in dismissing the accused-petitioner’s application seeking to take off from record documents exhibited as Ex.P1 to Ex.P9, which were not filed with the charge-sheet but were produced before the trial Court on 3.8.2009 and subsequently exhibited during the complainant's examination-in-chief.

Arguments of the Parties

Accused-Petitioner's Arguments

After filing of the charge-sheet and cognizance under Section 190(1)(b) Cr.P.C, the complainant had no authority to appear through counsel and file original documents on 3.8.2009 without the Court's permission; at most the complainant was a prosecution witness and a pleader for a private person can act only under direction of the Assistant Public Prosecutor (relying on sub-section (2) of Section 301 Cr.P.C).
Once a charge-sheet is filed, additional evidence (oral or documentary) cannot be filed except by the Public Prosecutor/Additional Public Prosecutor/Assistant Public Prosecutor and only with prior permission of the Court; in this case counsel for the complainant produced original documents without authority or permission and without furnishing copies to the accused or his counsel.
Although Section 173(8) Cr.P.C permits further investigation, in this case no further investigation was undertaken (with or without Magistrate's permission), so prosecution was not entitled to produce additional documentary evidence before the trial Court.
The fact that some documents were exhibited without objection during examination-in-chief does not estop the petitioner from subsequently raising objection to their admissibility.
The petitioner argued that provisions of Sections 91 and 311 Cr.P.C are not applicable in the present circumstances.
The petitioner relied on the decisions: Shiv Kumar v. Hukam Chand (1999) 7 SCC 467; Rama Chaudhary v. State of Bihar (2009) 6 SCC 346; and J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730.

Prosecution / Respondent-Complainanant's Arguments

The documents were produced on 3.8.2009 in the presence of the petitioner's counsel and no objection was raised at that time; they were exhibited during examination-in-chief without objection, and were not objected to on subsequent dates of cross-examination, so the petitioner is estopped from raising the objection now.
The documents were in fact filed by the concerned Assistant Public Prosecutor on 3.8.2009; the order-sheet incorrectly recorded that the counsel for the complainant filed them, and this was clarified in the prosecution's reply dated 20.2.2010 to the petitioner's application.
There is no statutory provision (including in the Cr.P.C.) that prohibits a victim/complainant from producing additional evidence, oral or documentary, during trial.
Under Section 91 Cr.P.C the Court has power to summon any document necessary or desirable for proper disposal of the case; as the documents are necessary and desirable and have come before the Court and been exhibited, the trial Court did not commit illegality in dismissing the petitioner's application.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467	Relied upon by the petitioner (specific principle from the case is not detailed in the provided opinion).	The Court noted the precedent was relied upon by the petitioner but found it to be based on a different fact situation and of no help to the petitioner.
Rama Chaudhary v. State Of Bihar, (2009) 6 SCC 346	Relied upon by the petitioner (specific principle from the case is not detailed in the provided opinion).	The Court observed the case was based on different facts and therefore did not assist the petitioner.
J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730	Relied upon by the petitioner (specific principle from the case is not detailed in the provided opinion).	The Court treated this authority as distinguishable on facts and of no help to the petitioner.

Court's Reasoning and Analysis

The Court framed the central question: whether the trial Court committed illegality or perversity by dismissing the petitioner's application to take off from record Ex.P1 to Ex.P9, given these documents were filed on 3.8.2009 in the presence of the petitioner's counsel and exhibited without objection during examination-in-chief.

The Court analyzed statutory provisions and underlying principles as follows:

Section 91(1) Cr.P.C.: The Court observed that this provision gives wide discretion to summon and require production of documents during trial where the production is necessary or desirable for the purposes of the trial. Because the statute empowers the Court to summon documents, there is no bar to the Court permitting a document already before it to be taken on record if it is necessary for proper disposal of the case, even if it was not filed with the charge-sheet. The Court also stated it is the duty of the Court to take all steps necessary for production of such documents.
Section 311 Cr.P.C.: The Court noted the wide discretion under Section 311 to summon or recall witnesses if their evidence appears essential to the just decision of the case, and that under this provision the Court may also order production of a document if it is essential for the just decision.
Section 173(8) Cr.P.C.: The Court explained that the police have a statutory right to carry out further investigation and collect additional evidence even after filing of the charge-sheet, and that prior permission of the Magistrate is not required for such further investigation. Material collected during further investigation can be produced before the Court by way of a supplementary charge-sheet and cannot be rejected merely because it was filed at trial stage; the prime consideration is to arrive at truth and do real and substantial justice.
Section 231 Cr.P.C.: The Court noted that the prosecution is entitled to produce any person as a witness even if not named in the charge-sheet.
Overarching principle: The Court reiterated the settled goal of a criminal trial is to discover the truth and to bring the best possible evidence on record.

Applying these legal principles to the facts, the Court concluded that additional evidence, oral or documentary, can be produced during the course of trial if the Court considers such production essential for proper disposal of the case. The Court found that the challenged documents were relevant and necessary for proper disposal. Further, the petitioner had not objected when the documents were filed or when they were exhibited during examination-in-chief (nor immediately thereafter), which diminished the force of the petitioner's present objection. Consequently, the Court held that no illegality or perversity was established in the trial Court's dismissal of the petitioner's application.

Holding and Implications

DISPOSITION: The criminal miscellaneous petition filed under Section 482 Cr.P.C. is dismissed. The connected stay application is also dismissed.

Implications:

Direct effect: The trial Court's order dated 18.7.2013 dismissing the petitioner's application to take off Ex.P1 to Ex.P9 from the record is upheld; the petitioner remains subject to the trial Court's record and proceedings as they stand.
Broader precedent: The opinion does not announce or purport to establish any new legal precedent beyond applying existing statutory provisions (Sections 91, 311, 173(8), and 231 Cr.P.C) and the general principle that trials should seek the best evidence for discovering truth. The Court expressly found that the case law authorities relied upon by the petitioner were distinguishable on facts and therefore did not assist him.

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Prakash Chand Baid v. State Of Rajasthan & Anr.

Prashant Kumar Agarwal, J.:— The accused-petitioner has filed this Criminal Misc. Petition under Sec. 482 Cr.P.C against the order dated 18.7.2013 passed by the Metropolitan Magistrate No. 17, Jaipur Metropolitan, Jaipur in Criminal Case No. 66/2010 whereby learned trial Court dismissed the application dated 12.1.2010 filed by the petitioner with a prayer to take off from the record documents Ex.P1 to P9 filed by the respondent-complainant on 3.8.2009

2. Brief relevant facts for the disposal of this petition are that a written complaint came to be filed by the respondent-complainant on 22.7.1999 against the accused-petitioner before the Chief Judicial Magistrate, Jaipur City, Jaipur for the offences under Sections 420 and 406 IPC and it was sent for investigation under Section 156(3) Cr.P.C to Police Station Manak Chowk, Jaipur and on that basis, FIR No. 278/99 for the aforesaid offences was registered on 2.8.99 and after investigation charge-sheet was filed against the petitioner. Along with the charge-sheet, apart from other evidence, photostat copy of three documents as collected during investigation was also filed, but no original documents were filed . Cognizance for the aforesaid offences was taken by the trial Court on 2.11.1999 and vide order dated 3.5.2008 charge only for offence under Section 406 IPC was framed against the petitioner and trial commenced. During the course of trial, on 3.8.2009 some original documents were filed before the trial Court on behalf of the respondent-complainant and his examination-in-chief was recorded on 27.11.2009 and during its course, documents filed on 3.8.2009 and some other documents were exhibited and he was also partly cross-examined. The respondent-complainant was further cross-examined on behalf of the accused-petitioner on 12.1.2010, but it could not be concluded. Thereafter, on 12.1.2010 present application was filed with the averment that during the course of cross-examination of the complainant on perusal of record of the Court, it was found that counsel for the complainant without prior permission of the Court filed some documents on 3.8.2009 and during the course of examination-in-chief they were exhibited also. It was further averred that documents which have been exhibited as Ex.P1 to Ex. P9 were not collected during investigation and they were not filed alongwith the charge-sheet and, therefore, they be taken off from the record. Reply to the application was filed on behalf of the prosecution on 20.2.2010 and the learned trial Court after hearing both the parties vide impugned order dated 18.7.2013 dismissed the aforesaid application. Feeling aggrieved, the accused-petitioner is before this Court by way of this petition with a prayer to set aside the same.

3. In support of the petition, learned counsel for the petitioner raised the following grounds:—

(1) Although, FIR was registered on the basis of a complaint filed by the respondent-complainant before the trial Court, but as after investigation charge-sheet was filed and cognizance was taken by the Court below under Section 190(1)(b) Cr. P.C, the complainant-respondent had no authority to appear before the trial Court through his counsel and file original documents on 3.8.2009 without permission of the Court as his position in the case after filing of the charge-sheet was, at the most, of a prosecution witness. As per sub-section (2) of Section 301 Cr.P.C, a pleader on behalf of a private person may act, at the most, under the direction of the Assistant Public Prosecutor who is in charge of case and can not act independently.

(2) Once charge-sheet is filed in a Court, additional evidence, oral or documentary, cannot be filed and only that evidence can be produced during trial on behalf of the prosecution which was submitted alongwith the charge-sheet. Otherwise also, even if in a case additional evidence, oral or documentary, is required to be filed on behalf of the prosecution, the same can be filed only by Public Prosecutor/Additional Public Prosecutor/Assistant Public Prosecutor and that too only with the prior permission of the Court, but in the instant case counsel for the complainant without any authority and permission of the trial Court produced original documents without furnishing copy of the same to the accused-petitioner or his counsel.

(3) Although, investigating agency has an authority under Section 173(8) Cr. P.C, to further investigate a case and to collect additional evidence, but in the present case no such investigation was undertaken with or without prior permission of the trial Court and, therefore, even prosecution was not entitled to produce additional evidence in the form of original documents before the trial Court.

(4) Merely because during the course of examination-in-chief of the respondent-complainant some of the documents were exhibited without objection by the petitioner, he cannot be estopped to raise such objection.

(5) In the facts and circumstances of the case provisions of Section 91 and 311 Cr.P.C are not applicable in the present case.

4. In support of the submissions, learned counsel for the petitioner relied upon the cases of Shiv Kumar v. Hukam Chand reported in (1999) 7 SCC 467, Rama Chaudhary v. State Of Bihar reported in (2009) 6 SCC 346 and J. Yashoda v. K. Shobha Rani reported (2007) 5 SCC 730.

5. On the other hand, learned Public Prosecutor assisted by learned counsel for the respondent-complainant controverting the submissions made on behalf of the petitioner submitted as below:—

(1) The documents in question were produced before the trial Court on 3.8.2009 in the presence of counsel for the petitioner but at that time no such objection was raised and lateron they were also exhibited without any objection during the course of examination-in-chief of the complainant and, therefore, the petitioner is now estopped to raise such an objection more particularly in view of the fact that objection was also not raised on 27.11.2009 when complainant was partly cross-examined and also on 12.1.2010 which he was further cross-examined.

(2) Infact, these documents were filed before the trial Court on 3.8.2009 by the concerned Assistant Public Prosecutor, but in the order-sheet it was wrongly mentioned that counsel for the complainant has filed these documents and this fact was clarified in the reply dated 20.2.2010 filed by the prosecution to the application dated 12.1.2010

(3) Otherwise also, there is no provision in any statute including Code of Criminal Procedure prohibiting a victim/complainant to produce additional evidence, oral or documentary, during the course of trial.

(4) As per Section 91 Cr.P.C, Court is empowered to summon any document which is necessary or desirable for the proper disposal of case. In the present case, as the documents in question are necessary and desirable for the proper disposal of the case and, therefore, once they have come before the Court and have also been exhibited, no illegality or perversity can be said to have been committed by the trial Court if the application filed by the petitioner has been dismissed.

6. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well the relevant legal provisions and the case law.

7. The moot question for consideration and decision before this Court is “whether any illegality or perversity has been committed by the learned trial Court by dismissing the application filed by the accused-petitioner requiring interference of this Court more particularly in view of the fact that documents in question were filed before the trial Court in the presence of counsel for the petitioner and they were exhibited also without any objection during the course of examination-in-chief of the respondent-complainant?”.

8. Relevant portion of sub-section (1) of Section 91 Cr.P.C provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producment of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it.

9. As per Section 311 of the Code of Criminal Procedure, any Court may, at any stage of any trial under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Under this provision also wide discretion has been conferred upon the Court to exercise its power and paramount consideration is just decision of the case. In my opinion under this provision it is permissible for the Court even to order production of a document before it if it is essential for the just decision of the case.

10. As per Section 173(8) Cr. P.C carrying out a further investigation and collection of additional evidence even after filing of charge-sheet is a statutory right of the police and for that prior permission of the Magistrate is not required. If during the course of such further investigation additional evidence, either oral or documentary, is collected by the Police, the same can be produced before the Court in the form of supplementary charge-sheet. The prime consideration for further investigation and collection of additional evidence is to arrive at the truth and to do real and substantial justice. The material collected during further investigation cannot be rejected only because it has been filed at the stage of the trial.

11. As per Section 231 Cr.P.C, the prosecution is entitled to produce any person as a witness even though such person is not named in the charge-sheet.

12. It is well settled that the goal of a criminal trial is to discover the truth and to achieve that goal the best possible evidence is to be brought on record.

13. In view of the aforesaid legal position, it is clear that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case. In the present case, it can not be disputed that the documents in question are relevant and necessary for the proper disposal of the case and, therefore, even if they were not filed alongwith the charge-sheet and were filed by the complainant or his counsel without permission of the trial Court even then it cannot be said that illegality or perversity has been committed by the trial Court by dismissing the application filed by the petitioner more particularly in view of the fact that objection was raised on his behalf neither at the time when these documents were filed nor when they were exhibited during the course of examination-in-chief of the respondent-complainant and even soon thereafter. So far as the case law relied upon on behalf of the petitioner is concerned, it being based on different fact situation, is of no help to him.

14. Consequently, the criminal misc. petition is, hereby, dismissed. The stay application also stands dismissed.

Prakash Chand Baid v. State Of Rajasthan & Anr.

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Accused-Petitioner's Arguments

Prosecution / Respondent-Complainanant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Prakash Chand Baid v. State Of Rajasthan & Anr.

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