IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16018 of 2010 RAMESH KUMAR SON OF LATE UDIT NARAYAN PURBEY, RESIDENT OF VILL. RAMPUR PARORI, P.S. DUMARA, DISTRICT SITAMARHI …. PETITIONER Versus THE STATE OF BIHAR THROUGH THE VIGILANCE ----------- 2. 5.1.2011 The petitioner seeks quashing of the order dated 8.4.2010 passed by the Special Judge, Vigilance (Trap), Patna in Special Case No.42 of 2007 arising out of Vigilance P.S. case No.69 of 2007, by which he has rejected an application filed u/s.207 Cr.P.C. 2. According to the prosecution the petitioner was arrested while accepting a bribe of Rs.25,000/- from the complainant. In due time charge sheet was submitted and cognizance was taken by the court below. The petitioner then prayed for supply of certain documents, but the court below was of the opinion that all the relevant documents had already been supplied to him. The Trial Court further observed that “yellow paper” would be supplied as and when the same is made available and thus rejected the prayer made on behalf of the petitioner. 3. The petitioner contends that he had demanded 30 additional documents pertaining to investigation which the Court was enjoined to supply u/s.207 Cr.P.C. and has therefore prayed for quashing the order impugned. On the other hand the Counsel for the Vigilance submits that the petitioner has been supplied all the documents which the - 2 - prosecution proposes to rely upon, and he is merely delaying the trial, by making demand for documents which are extraneous and irrelevant. 4. Considered the rival contentions. 5. One must, at all times, be conscious that the essence of Article 21 of Constitution of India is also securing for its citizens, a trial, which is just and fair, of which, I would hasten to add, transparency is an essential core. Viewing Section 207 Cr.P.C. in this background, from the standpoint of an accused, one will realise that the purpose of 207 Cr.P.C. is to ensure that the accused is apprised of the exact nature of material, that has appeared against him during investigation, so as enable him, to plead the prosecution was baseless, and, pray for discharge and/or to give him prior notice of the same to lead his defence during trial. 6. Since Section 207 Cr.P.C. refers to Section 173 Cr.P.C., it is necessary to firstly examine the provision of 173 Cr.P.C. which reads as follows: “173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay. [(1-A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer-in-chargte of the police station.] (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, - 3 - stating – (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170; [(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376-A, 376-B, 376-C or 376-D of the Indian Penal Code (45 of 1860).] (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report_ (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; - 4 - (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 proceedings 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 pat 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 regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).” So, as per Section 173, a report which is commonly known as charge sheet/final form has to be submitted by the Investigating Agency, on closure of investigation. Along with it, it is required to place before the Court u/s.173(5): (a) all documents or relevant extracts thereof on which the prosecution proposes to rely, (b) the statements recorded under Section 161 of all the persons - 5 - whom the prosecution proposes to examine as its witnesses. 7. Section 207 Cr.P.C. reads thus: “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 report, 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 under section 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 under section 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.” So, on a plain reading of Section 207 Cr.P.C. one finds, that the accused is entitled to copies of (i) the police report, (ii) first information report, (iii) the statements - 6 - recorded under Section 161 (3) of all the persons whom the prosecution proposes to examine as its witnesses as mentioned in Section 173(5)(b), (iv) the confessions and statements recorded under Section 164 Cr.P.C. and (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5)(a) of Section 173 Cr.P.C. 8. It is also amply clear that, apart from the F.I.R., police report, confessions it is only the statements of persons the prosecution proposes to examine as witnesses and the documents it proposes to rely upon, mentioned in Column 10 of the charge sheet, and forwarded u/s.173 (5) Cr.P.C. that are to be supplied to the accused. Any other document, in custody of the Investigating Agency, if not forwarded u/s.173(5), can neither be relied upon by the prosecution subsequently during trial, as it would prejudice the accused, nor can the accused demand its supply since it will not come within the purview of Section 173(5) Cr.P.C. Under the circumstances, it is held, in totally unambiguous terms, that even while the statute mandates supply of all documents mentioned in Column 10 of the charge sheet, since forwarding the same presupposes that the prosecution is going to rely on them, the Court is not duty bound to supply each and every document collected during investigation. Thus, even while the prosecution cannot be permitted to tease the accused by withholding certain documents, the - 7 - accused cannot claim an absolute right over every document collected during investigation. Such mandatory provisions are reassuring reminders that the equality clause in the Constitution is inherently imbibed in the procedural code, by giving both the parties an equal opportunity to perform their respective duties-the Prosecutor to prosecute and the Defence to defend. Both parties are placed on a level-playing ground, without giving an unfair advantage to either of them. 9. Now I shall proceed to examine which agency is saddled with the responsibility of furnishing police papers to the accused. For this I need to go into the history of the change that had been enacted in the year 1973. When the Code of 1973 came into existence, it attempted to introduce major changes in the procedure governing criminal law. One such change was to do away with the committal proceedings contained in Chapter XVIII and it introduced a procedure by which the accused could be discharged at the start of trial u/s.227 Cr.P.C. Previously, as per the old Code Section 207 provided for different procedures in cases originating from police reports and otherwise, by the committing Magistrate. Section 207 read thus : “207. In every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall, - (a) in any proceeding instituted on a police report, follow the procedure specified in section 207A; and - 8 - (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter.” Amongst other procedures contained in Section 207A, sub-section (3) read as follows : “207A (3). At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.” (Underlining mine) 10. Interestingly, as in the present Code, Section 207A (3) was referable to Section 173 Cr.P.C., relevant are sub section (1) and (4), which are reproduced below : “173. [(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police-station shall- (a) forward to a Magistrate empowered to take cognizance of the offence on a police- report a report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.] “173(4): After forwarding a report under this - 9 - section, the officer in charge of the police- station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded under section 164 and the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” 11. The Law Commission in its 41st report had observed that the arrangement of the police providing the documents was not working as per satisfaction since the police did not have the necessary equipment for furnishing legible copy in time which had led to delay in the commencement of proceedings and, therefore, to remedy it, the duty of furnishing such copies was laid on the Court of the Magistrate, who took cognizance. So it is observed that Section 173(4) of the old Code has now become Section 207 of the new Code, both reproduced above, whereas Section 207(A) has in effect become Section 238 Cr.P.C. in the new Code: “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.” 12. The change was obviously introduced to - 10 - expedite the procedure but, importantly, without affecting the rights of the accused. However, despite this change, conducting a fair assessment of the present Trial situation, one finds the objective of speeding up the procedure of furnishing the police papers to the accused has not been achieved. This is primarily for the confusion which has been generated, some times purposefully, as to what exactly are the documents the accused is entitled to, at the stage of 207 Cr.P.C. as also because the Courts have failed to exercise its mandate with full authority. As a result the stage of 207 has proved a major bottleneck in Criminal Trials, especially those, instituted upon a report of the Vigilance and C.B.I. Unfortunately, at that stage, the Court despite its best efforts becomes a mute spectator to a pitched battle of egos, between the Prosecuting Agency and the accused, resulting in a stalemate. The Courts have to bear in mind that apart from Section 207 where it is enjoined to furnish police papers, it is now the courts duty to ensure service of documents to the accused as per Section 238. It therefore is a substantive procedure which cannot be lightly brushed aside. The Apex Court while referring to Section 207 Cr.P.C. in a different context in a case reported in AIR 1983 SC 439 was of the view that “The duty cast on the Magistrate by Section 207 had to be performed in a judicial manner”. The Court therefore cannot abdicate its functions and allow the parties to engage in an endless eyeball to eyeball - 11 - confrontation. If the trial courts maintain an effective control of the procedure with absolute clarity, at this stage, it will frustrate and subvert the attempt of the interested party to lead the court into unnecessary meaningless meanderings. 13. In this background it is noteworthy that as per the new Code even though there has been a shift of responsibility of furnishing police papers to the accused from the Police to the Court, the legislature in its wisdom incorporated Section 173 (7), which reads as follows : “173(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).” So instead of making the same mandatory the legislature worded it “finds it convenient so do to”. However, since the object of change was to ensure speedy trial and securing substantial justice, this object must not be lost sight of in the mild wordings of the provision. The provision contained therein is required to be interpreted keeping in view the well recognized rule of construction that procedural prescriptions are for doing substantial justice and it should not cause prejudice to the parties. In view of the constitutional mandate of guarantee of a fair trial, if the accused is not handed over the papers well in time, great prejudice will be caused to him, since, it would mean being shot while blindfolded. What can cause greater prejudice to a - 12 - person than not knowing what there is against him? Even in administrative/quasi judicial matters, right to a fair hearing, means supply of relevant documents. So, in criminal cases, when the life and liberty of a citizen is at stake, in my opinion, the requirement would be, of much stricter compliance. Hence these words have to be treated as mandatory and not directory. 14. Moreover, in the old Code as per Section 173 (4) (reproduced above) the police papers were to be furnished “After forwarding a report” which meant that the police papers were to be prepared after the charge sheet was submitted; whereas, as per the new Code, Section 173 (5) enjoins the Investigating Agency to submit all the documents along with the charge sheet. 15. Under the circumstances, in effect, even though the responsibility of furnishing the police papers may have been shifted to the court, in the new scheme of the Code, but, duty of preparation of the same continues to lie with the Investigating Agency, since as noted above, u/s.173 (5) the Investigating Agency has to submit all the documents and statements of witnesses it proposes to rely at the stage of 173 itself, which can only be done, once it is prepared. 16. In view of the discussions made above, the Investigating Agencies are directed to prepare as many sets of documents/statements of witnesses as there are accused - 13 - and submit the same before the court along with the report u/s.173 Cr.P.C. in each criminal case. 17. Further, in cases originating from reports of Vigilance and C.B.I., since the entire case is based on documentary evidence, and, most often than not, furnishing documents to the accused becomes a clash of egos between the two, this Court directs the C.B.I. and Vigilance Department to prepare one set of legible documents properly indexed/paginated mentioned in Column 10 of the charge sheet, for each of the accused and submit the same in the court along with the charge sheet/final form. This would greatly enhance the speed of trial and would work in favour of all the parties concerned and thus achieve the purpose of the constitutional mandate of a speedy trial which is just and fair. 18. In view of the discussions on the legal proposition made above and the consideration of the order impugned, I find no merit in the application. The same is dismissed. 19. However, in the present case if the Trial Court finds, that, at the stage of trial, the prosecution proposes to rely on statements/documents which have not been supplied to the accused, the same shall be precluded from consideration. 20. Let a copy of this order be communicated to the D.G.P., Bihar, A.D.G., Vigilance, Govt. of Bihar, D.I.G., - 14 - C.B.I, Patna and all the District and Sessions Judges for the needful. Patna High Court Dated 5th January, 2011. Narendra/AFR ( Anjana Prakash, J. )