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