@JUDGMENTTAG-ORDER
N. Ananda, J.@mdashThe petitioner (hereinafter referred to as accused No. 2) had filed LA No. 728/2012 for inspection of unmarked documents filed by the Investigating Officer to enable her to answer the questions framed u/s 318 Cr. P.C. IA No. 728/2012 was rejected by the trial court. Therefore, accused No. 2 is before this court. I have heard Sri Udaya Holla, learned senior counsel for petitioner and Sri P.V. Acharya, learned Special Public Prosecutor for the respondent.
2. Sri Udaya Holla, learned senior counsel for petitioner has made following submissions:-
I. That the documents referred to u/s 178(5) Cr. P.C. include all the documents forwarded to the learned Magistrate. Accused No. 2 has right to know the contents of documents.
II. The examination of accused No. 2 u/s 313 Cr. P.C. is not an empty formality and the answers given by accused No. 2 u/s 313 Cr. P.C., may be used against her.
III. When accused No. 2 has sought for certified copies of unmarked documents by filing IA No. 711/2012, the trial court has rejected the same on the ground that the documents are voluminous and the order has been confirmed by this court in Criminal Petition No. 1840/2012 dated 16.04.2012.
IV. The prosecution has not pleaded that prejudice would be caused if accused No. 2/learned counsel for accused No. 2 is permitted to inspect the unmarked documents.
V. Accused No. 2 cannot answer the questions framed u/s 313 Cr. P.C., it such an opportunity is not provided to her and that would not ensure a fair trial vehicle is a constitutional right guaranteed to accused No. 2.
3. The learned senior counsel for petitioner has relied on following decisions:-
II.
III.
IV.
V.
VI.
4. Sri B.V. Acharya, learned Special Public Prosecutor has made following submissions:-
I. That accused No. 2 is interested in protracting the proceedings. Therefore, accused No. 2 had made 1A No. 723/2012 before the trial court. After commencement of examination of accused No. 2 u/s 313 Cr. P.C. accused No. 2 had made application after application to protract the proceedings. The examination of accused u/s 313 Cr. P.C., commenced on 1.8.02.2012 is halfway through.
II. The trial court had posted the matter for examination of accused No. 2 u/s 313 Cr. P.C., on 29.11.2011. Thereafter, the matter was adjourned for several reasons pleaded by accused and several interlocutory applications were filed and orders made by this court and were challenged before the Hon''ble Supreme Court. As of now accused No. 2 has answered 632 questions and examination of accused No. 2 is halfway through.
III The right available to accused No. 2 u/s 207 Cr. P.C., has to be exercised in terms of section 238 Cr. P.C. The supply of copies to accused and right of inspection of documents available to accused are intended to make the accused aware of materials which are sought to be utilised against him.
5. The learned special Public Prosecutor has referred to the order of the Supreme Court in Transfer Petitions (Crl.) Nos. 77-78/2003 dated 18.11.2003 and has drawn the attention of this court to the directions contained in paragraph 34 of the order, reading as hereunder:-
34.(a). The State of Karnataka in consultation with the chief Justice of the High Court of Karnataka shall constitute a Special Court under the Prevention of Corruption Act, 1988 to whom-CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XIth Additional Sessions Judge (Special Court No. 1). Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore.
(b) As the matter is pending since 1997 the State of Karnataka shall appoint a Special Judge within a month from the date of receipt of this order and the trial before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion.
(c) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct these cases. The Public Prosecutor so appointed shall be entitled to assistance of another lawyer of his choice. The fees and all other expenses of the Public Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be entitled to get the same reimbursed from the State of Tamil Nadu. The Public Prosecutor to be appointed within six weeks from today.
(d) The investigating agency is directed to render all assistance to the Public Prosecutor and his Assistant.
(e) The Special Judge so appointed to proceed with the eases from such stage as he deems fit and proper in accordance with law.
(f) The Public Prosecutor will be at liberty to apply that the witnesses who have been recalled and cross-examined by the accused and who have resiled from their previous statement, may be again recalled. The Public Prosecutor would be at liberty to apply to the court to have these witnesses declared hostile and to seek permission to cross-examine them. Any such application if made to the Special Court shall be allowed. The Public Prosecutor will also be at liberty to apply that action in perjury to be taken against some or all such witnesses. Any such application(s) will be undoubtedly considered on its merit(s).
(g) The State of Tamil Nadu shall ensure that all documents and records are forthwith transferred to the Special Court on its constitution. The State of Tamil Nadu shall also ensure that the witnesses are produced before the Special Court whenever they are required to attend that court.
(h) In case any witness asks for protection, the State of Karnataka shall provide protection to that witness.
(i) The Special Judge shall alter completion of evidence put to all the accused all relevant evidence and documents appearing against them, whilst recording their statement u/s 313, all the accused shall personally appear in court, on the day they are called upon to do so, for answering questions u/s 318 of the Criminal Procedure Code.
These petitions are allowed in the above terms.
6. The learned Special Public Prosecutor has relied on a judgment of the Supreme Court, reported in
15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory is challenged in the superior courts and the superior courts we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere, They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should Keep in mind the principle behind Section 465 Cr. P.C. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bare That would mean the failure of the very system.
The learned Special Public Prosecutor would submit that the above observations made by the Supreme Court would squarely apply to facts of the instant petition.
7. The basic contentions raised in IA No. 723/2012 are:-
I. Accused No. 2 has right to know the contents of all the documents, which are forwarded by the Investigating Officer to the learned Magistrate.
II. Accused No. 2 should have the knowledge of all the incriminating material appearing against her and all the documents filed by the Investigating Officer before the learned Magistrate, before she answers the questions framed u/s 313 Cr. P.C.
III. The prosecution and the court have duty to ensure a fair trial.
8. In the Transfer Petitions (Crl.) Nos. 77-78/2003 dried. 18.11.2003, the Supreme Court having narrated the facts and circumstances of the case and the proceedings which had taken by then, has given directions as aforestated. The aforestated directions are Intended to expedite trial and decide the case at the earliest.
9. In terms of direction No. 34(i), the Special Judge shall after completion of evidence put to all the accused all relevant evidence and documents appearing against them whilst recording their statements u/s 313, all the accused shall personally appear in court, on the day they are called upon to do so, for answering questions u/s 313 of the Criminal Procedure Code.
10. In view of this specific direction, it is incumbent upon the learned Special Judge to examine the accused u/s 313 Cr. P.C., with reference to relevant evidence and documents appearing against them.
11. It is not in dispute and cannot be disputed that unmarked documents, the inspection of Which is sought by accused No. 2 have not been tendered in evidence and they are not part of evidence. The apprehension of accused No. 2 that she is likely to be questioned u/s 313 Cr. P.C., with reference to unmarked documents, which have not been tendered in evidence, has no basis, Even if the learned Special Judge were to deviate from the directions issued by the Supreme Court by questioning the accused about unmarked documents which do not form part of relevant evidence, such questions would be redundant. Therefore, when the matter is decided on merits, accused No. 2 can contend boat she had been questioned u/s 313 Cr. P.C. on the facts which are not borne by evidence or that the questions are framed without there being any evidence.
12. Now adverting to the right of accused No. 2 regarding inspection of unmarked documents, it is necessary to refer to the provisions of sections 207 & 238 Cr. P.C.
Under proviso II to section 207 Cr. P.C. if the documents filed by the Investigating Officer u/s 173(5) Cr. P.C., are voluminous, the Magistrate shall, instead of furnishing the accused with a copy thereof, direct the accused to inspect it either personally or through pleader in court.
13. u/s 238 Cr. P.C., the learned Magistrate before framing charge shall satisfy himself that he has complied with the provisions of section 207 Cr. P.C.
14. In the ease on hand, the charges were framed on 21.10.1997. It is not the grievance of accused No. 2 that charges were framed without complying the provisions of section 207 Cr. P.C. The prosecution in all examined 259 witnesses. Accused No. 2 before commencement of examination of witnesses for the prosecution had not requested for Inspection of documents. It is needless to state that evidence is vital part of criminal trial.
15. The law is fairly well settled that accused has been provided safeguards at different stages of criminal trial to uphold true spirit of right of fair trial. At the same time, accused under the guise of exercising right to fair trial cannot subvert the proceedings or protract the proceedings. It is relevant to state that rights available to accused at different stages have direct bearing on the stage of trial.
16. The case on hand is being tried as a warrant case instituted on a police report. Therefore, the trial before court below is governed by Chapter XIX A.
17. Section 238 Cr. P.C., reads thus:-
238. Compliance with section 207-When, in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of section 207.
18. The significance of section 238 Cr. P.C., has to be understood by reading the provisions of sections 239 & 240 Cr. P.C., The purpose of insistence of compliance of provisions of section 238 Cr. P.C., is to ensure that the learned Magistrate has taken info consideration all the documents either for the purpose of discharging the accused or to frame charges against the accused. If the accused has any grievance regarding non-compliance of section 207 Cr. P.C., such grievance should nave been raised before commencement, of trial. As already stated, charges were framed as far back as on 21.10.1997. The trial was partly held in the Sessions Court at Chennai and part of trial was held before court below. Therefore, the contention of accused No. 2 without inspection of unmarked documents, which have not been tendered in evidence, she cannot answer questions u/s 313 Cr. P.C., cannot be accepted.
19. Now coming to the object of supplying copies to accused, it will be useful to refer to following judgments of the Supreme Court:-
I. In a decision reported in
21. We may repeat that the provisions of S. 162, Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supper of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under S. 161, the Court would be justified in directing that the conviction be set aside and in a proper ease to direct that the defect be rectified in such manner as the circumstances may warrant, It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the court would notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. This in our judgment, is one of those cases in which such a course is warranted.
The Supreme Court has held non-supply of documents and failure to supply the statements recorded under S. 161 Cr. P.C. would no; vitiate trial if it is shown that no prejudice has resulted to accused.
II. In a decision reported in
27....Section 208 of the Code deals with the requirement of furnishing documents to the accused. Of course, it has rightly been submitted by Mr. Sanyal that mere non-supply of documents may not be considered prejudicial but the court has to give a definite finding about the prejudice or otherwise. This aspect was highlighted in Noor Khan case.
III. In a decision reported in
12. Section 207 and 208 of the Code deal with documents which are commonly known as police papers, which are to be supplied to the accused. The said sections read 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 repose 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 u/s 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 u/s 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.
208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.-Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process u/s 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused free of cost, a copy of each of the following:-
(i) the statement recorded u/s 200 or Section 202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded u/s 161 or Section (iii) any documents produced before the Magistrate on which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such document is voluminous, he snail, 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.
13. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble. It was held that non-supply is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. Even the supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. If any reference is made before any court to the supervision notes, as has noted above they are not to be taken note of by the court concerned. As many instances have come to light when the parties, as in the present case, make reference to the supervision notes, the inevitable conclusion is that they have unauthorized access to the official records.
20. In the aforestated decisions, the Supreme Court has held that the documents in terms of sections 207 & 208 Cr. P.C. are supplied to make the accused aware of the materials, which are sought to be utilised against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial The Supreme Court referring to the earlier judgment in the case of
21. In the ultimate analysis, the denial of request of accused No. 2 for inspection of unmarked documents which have not teen tendered in evidence, when her examination u/s did Cr. P.C., is halfway through, would cause prejudice to her is a matter for consideration on merits of the case. Accused No. 2 can urge the same when the case is heard on merits.
22. The accused are being tried for an offence punishable u/s 120 IPC and section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act. 1988. Therefore, it is relevant to refer to the provisions of section 4(4) of the Prevention of Corruption Act. 1988, reading as hereunder:-
4(4). Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
Therefore, it is incumbent upon the trial court to hold trial on day-to-day basis, notwithstanding the provisions contained in the Criminal Procedure Code, 1973.
23. Now adverting to the decisions relied upon by the learned senior counsel for petitioner:- In a decision reported in
24. In a decision reported in
24. The accused has admitted that the deceased was his wife and was living with hind in the cabin. On the basis of the record, the High Court has also noticed the fact that deceased had separated from her earlier husband and was living with the accused who was also staring away from his family. The villagers had objected to the accused living with the deceased in that manner. In these circumstances, the onus to explain the cause of death of the deceased was upon the husband. He did offer an explanation that she had committed suicide by burning herself but this explanation has been disbelieved. Another very material factor is that as per his own statement when he noticed that the deceased was still alive and her burnt body was lying just outside cabin in the chilly plantation he had taken the help of Bhola Babu. The name of this person he neither referred to in his statement u/s 313 Cr. P.C. nor he examined this person as a witness. In the normal course, thus, it will have to be presumed that if this witness was produced and examined in Court, he might have spoken the truth which was not suitable or favourable to the accused. For reasons best known and which remained unexplained, this witness was not examined though in his statement tinder Section 313 Cr. P.C. in answer to the last question he had stated that he was innocent and would give in writing whatever he wanted to say. Despite this, no defence was led by the appellant.
25. In a decision reported in
8. When all these incriminating circumstances were put to the appellant in her examination u/s. 313 Cr P.C., she merely stated that they were false and failed to give any other explanation. The prosecution evidence which has been found reliable proves that the answers given by the appellant in here 313 statement wear really false. The appellant did not explain how the dead body and articles belonging to the deceased were found from here house. She denied that they were found from her house. This being the ease of circumstantial evidence this false denial assumes importance as it would supply a missing link in the chain of circumstances.
26. In a decision reported in
12. A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person. Why the prosecution had suppressed the dying declaration recorded by the Judicial Magistrate is not known. The prosecution must also he fair to the accused. Fairness in investigation as also trial is a human right of an accused. The State cannot suppress any vital document from the court only because the same would support the case of the accused.
27. On careful consideration of what has been held in the aforestated decisions, I am of the considered opinion, in the instant case, accused No. 2 cannot derive any support from the above decisions to contend that she has right of inspection of unmarked documents, which are not tendered in evidence and she can assert such right as a condition precedent for answering the questions framed u/s 313 Cr. P.C.
28. It is not the ease of accused No. 2 that the learned Magistrate had framed charges without compliance of section 207 Cr. P.C. or charges framed against accused No. 2 are vitiated due to non-compliance of section 207 Cr P.C.
29. It is relevant to state that accused No. 2 did nod raise these questions before commencement of examination of witnesses by the prosecution or during examination of witnesses, who are as many as 259 in number.
30. For the foregoing reasons, I hold that IA No. 723/2012 filed by accused No. 2 for inspection of unmarked documents, which have not been tendered in evidence to enable her to answer the questions framed u/s 313 Cr. P.C., is untenable.
31. The learned senior counsel for accused No. 2 has drawn my attention to the impugned order to highlight certain observations made by the learned Special Judge. In my considered opinion, the learned Special Judge in spite of such observations, which are not relevant to decide the application (IA No. 723/2012) has come to the right conclusion that accused No. 2 cannot assert such right as a condition precedent for answering the questions framed u/s 313 Cr. P.C. Therefore there are no grounds to interfere with the impugned order. In the result, I pass the following:
ORDER
The petition is dismissed.
