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Tag: CrPC 91 – Seek Unmarked and Unexhibited Prosecution Documents

V.K. Sasikala Vs State on 27 September, 2012

Posted on August 25, 2018 by ShadesOfKnife

This judgment from Hon’ble Apex Court which held that the accused may be allowed an inspection of the unmarked and unexhibited documents held by court that were submitted along with charge sheet.

From Para 7,

It is the view of the learned trial court as well as the High Court that in the present case the charges against the appellant were framed way back in the year 2007. At the time of the framing of the charge the court is required to satisfy itself that all papers, documents and statements required to be furnished to the accused under Section 207 Cr.P.C. have been so furnished. No grievance in this regard was raised by the appellant or any of the accused. The issue was also not raised at any point of time in the course of examination of any of the prosecution witnesses (over 250 witnesses had been examined). It has also been expressed by the High Court that though the appellant had answered over 532 questions in her examination under Section 313 Cr.P.C. no grievance was raised or any prejudice claimed by the appellant at any earlier point of time. It is also the view of the High Court that non furnishing of the copies of the documents or not conceding to the prayer for inspection will not automatically render the prosecution bad in law in as much as the effect of such action must result in prejudice to the accused which question can well be decided when the matter is being considered on merits. The High Court also took the view that the documents, copies or inspection of which was sought, being unmarked and unexhibited documents, objections can always be raised if the accused is to be questioned in connection with such documents in her examination under section 313 Cr.P.C. In addition to the above, the High Court was of the view that this court having passed clear directions in its order dated 18th November, 2003 that the criminal proceedings against the accused should be brought to its earliest conclusion by conducting the trial on day to day basis, the filing of the applications for certified copies/inspection of the unmarked and unexhibited documents constitute another attempt on the part of the appellant to over reach the order of this court and delay the trial. It is the correctness of the reasons assigned by the High Court for ultimate conclusions reached by it that has been assailed before us in the present appeals.

From Para 16,

The declaration of the law in Sidhartha Vashisht (supra) may have touched upon the outer fringe of the issues arising in the present case. However, the positive advancement that has been achieved cannot, in our view, be allowed to take a roundabout turn and the march has only to be carried forward. If the claim of the appellant is viewed in context and perspective outlined above, according to us, a perception of possible prejudice, if the documents or at least an inspection thereof is denied, looms large. The absence of any claim on the part of the accused to the said documents at any earlier point of time cannot have the effect of foreclosing such a right of the accused. Absence of such a claim, till the time when raised, can be understood and explained in several reasonable and acceptable ways. Suffice it would be to say that individual notion of prejudice, difficulty or handicap in putting forward a defence would vary from person to person and there can be no uniform yardstick to measure such perceptions. If the present appellant has perceived certain difficulties in answering or explaining some part of the evidence brought by the prosecution on the basis of specific documents and seeks to ascertain if the allegedly incriminating documents can be better explained by reference to some other documents which are in the court’s custody, an opportunity must be given to the accused to satisfy herself in this regard. It is not for the prosecution or for the Court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop and if the same is founded on a reasonable basis it is the duty of the Court as well as the prosecution to ensure that the accused should not be made to labour under any such perception and the same must be put to rest at the earliest. Such a view, according to us, is an inalienable attribute of the process of a fair trial that Article 21 guarantees to every accused.

From Para 17,

… What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the Court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to in the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belately. This is how the scales of justice in our Criminal Jurisprudence have to be balanced.

V.K. Sasikala Vs State on 27 September, 2012

Citations : [2013 AIR SC 613], [2013 AJR 1 683], [2014 ALLMR CRI 5183], [2013 CRI LJ 177], [2012 JT SC 9 609], [2013 KARLJ 3 83], [2012 KLJ 4 570], [2013 RCR CRIMINAL 1 244], [2012 SCALE 9 488], [2012 SCC 9 771], [2013 SCC CRI 1 1010], [2012 SCR 10 641], [2012 LW CRI 2 759], [2012 AIR SC 5502], [2012 CCR 4 205], [2012 DLT CRI 4 250], [2012 SLT 7 343], [2012 MLJ CRI 4 355], [2013 KANTLJ 3 83], [2013 MAHLJ CRI 1 258], [2012 SCC ONLINE SC 799], [2013 ECRN 1 16], [2012 AIR SCW 5502]

Other Sources :

https://indiankanoon.org/doc/166228518/

https://www.casemine.com/judgement/in/5609af1ee4b0149711415a8c

Posted in Supreme Court of India Judgment or Order or Notification | Tagged CrPC 91 - Seek Unmarked and Unexhibited Prosecution Documents Sandeep Pamarati Sensational Or Peculiar Cases V.K. Sasikala Vs State | Leave a comment

Nitya Dharmananda @ K. Lenin Vs Sri Gopal Sheelum Reddy on 7 December, 2017

Posted on August 24, 2018 by ShadesOfKnife

Another gem of Order (not judgment) from my favorite judges Shri Adarsh Kumar Goel J and Shri Uday Umesh Lalit J, where in it was held that,

From Para 9,

Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.

Nitya Dharmananda @ K. Lenin Vs Sri Gopal Sheelum Reddy on 7 December, 2017

Citations : [CDJ 2017 SC 1384], [2017 SCC ONLINE SC 1430], [(2018) 2 SCC 93], [(2018) 1 Supreme Court Cases (Cri) 458], [(2018) 2 SCC 6]

Other Sources :

https://indiankanoon.org/doc/178580003/

https://www.casemine.com/judgement/in/5a3408f5ce686e2b4ddaf270

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 91 - Seek Unmarked and Unexhibited Prosecution Documents CrPC 91 - Summons to produce document or other thing Nitya Dharmananda @ K. Lenin Vs Sri Gopal Sheelum Reddy Sandeep Pamarati Sensational Or Peculiar Cases State Of Orissa Vs Debendra Nath Padhi Summon Material of Sterling Quality Withheld By Investigators | Leave a comment

Vijay Natvarlal Tank Vs State Of Gujarat & on 17 January, 2018

Posted on August 18, 2018 by ShadesOfKnife

A wonderfully reasoned judgment from Hon’ble High Court of Gujarat held that accused be allowed to seek for documents that prove his innocence, if they were with prosecution/Investigating agencies and not produced in court as part of Charge sheet.

The contention of complainant’s case is quite simple that Section 91 is not applicable in facts and circumstances of the present case and that accused has no right to adduce any evidence until his statement is recorded under Section 313 of the Code.

From Para 9,

It is a settled legal position that neither the investigation agency nor the Court has to complete the investigation and trial respectively only for sake of completing it and against wrong person or without having any substantial evidence against any such persons. In other words, it is settled principle of jurisprudence that the Court has to find out nothing but the truth with reference to any dispute and charges filed before it. It is also settled legal position that pleading generally of the litigation and in particular in Criminal proceedings, where Trial Court’s decision would be disturbed in as much as it would affect the personal freedom of the individual pursuant to his conviction, the accused must be given proper and reasonable opportunity to prove his innocence. It is also well settled that for proving such innocence, accused are certainly entitled to adduce appropriate evidence which may be in their favour to prove them innocence. It is also well settled that for this purpose, the accused may not be denied either the opportunity to produce any information and evidence or to call upon the same, may be with only restriction that it must be in accordance with law and subject to following proper procedure so that other side i.e. victim, complainant, investigating agency and prosecuting agency are having reasonable opportunity to know such evidence and to rebut it if they can. In view of above settled legal position, it becomes clear that disclosure of improper sections in any application and disclosure of some information may not be in requisite form but if such information or material is otherwise relevant to the issue under consideration of the Court, then failing to disclose such information on record or to call for such information and documentary evidence from person where it is lying would result into material irregularity which may ultimately result into illegality and therefore, it is to be avoided. It is also clear that not allowing the accused to prove his case would ultimately result into bright chance of admitting his appeal against conviction and ultimately it may be required to be remanded back. Therefore, to avoid all such situations, one has to look into the rival submissions and law point at this stage only so as to avoid multiplicity of proceedings of either side.

From Para 12,

The respondent is relying upon the decision in the case of Nitya Dharmananda (Supra) but unfortunately applicant wants to read only one line from such judgment which reads that ordinarily the Court produce with the chargesheet for dealing with the issue ofcharge. The reference to the decision in the case of State of Orissa V/s. Debendra Nath Padhi reported in (2005) 1 SCC 568 is not much material for the simple reason that in that case the dispute was with reference to the stage when such documents may be called upon i.e. at the stage of framing of charge or not, whereas even after referring Debednra Nath Padhi (supra) in such recent judgment Hon’ble the Supreme Court has categorically observed and held that the Court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so requires, even if the accused  may have no right to invoke Section 91 and it is further held that to exercise this power, the Court is to be satisfied that the material available with the investigator, which is not made part of the chargesheet, has crucial bearing on the issue of framing of charge. It is further held that if the Court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the Court is not debarred from summoning or relying upon the same even if documents are not a part of the chargesheet. What is considered in all such cases is there may not be mini trial at the stage of framing the charge, but facts would be different after framing of charge and more particularly, when some witnesses are in witness box, it is certainly necessary for the accused to refer certain documents and contradict such witnesses with such documents and pleadings and therefore, such documents are required to be brought on record.

Interesting tidbit:

Though such evidence is not to be considered at this stage, it would be appropriate to recollect that atleast one of the witness being PW no.7 has admitted that first husband of the complainant, advocate has renounced the world and two other husbands have committed suicide.

Vijay Natvarlal Tank Vs State Of Gujarat & on 17 January, 2018
Posted in High Court of Gujarat Judgment or Order or Notification | Tagged CrPC 91 - Seek Unmarked and Unexhibited Prosecution Documents Sandeep Pamarati Vijay Natvarlal Tank Vs State Of Gujarat | Leave a comment

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