A perusal of the provisions of the Cr.P.C. and the entire scheme contemplated therein demonstrates that there is no provision available for a witness to directly seek production of additional documents during the course of sessions trial and at the time of recording of his/her evidence. The Sessions Court in the present case failed to appreciate this aspect of the matter. While passing the impugned order, the Sessions Court also failed to appreciate that permitting such production of additional documents by the witnesses directly would prejudice the accused persons by depriving them of a fair opportunity to prepare their defence. The whole purpose of filing of charge-sheet, upon completion of investigation along with documents upon which the prosecution desires to place reliance, would be defeated if witnesses are permitted to directly produce additional documents in such a manner. {Para 21}
22. The additional documents could be produced by following the procedure of further investigation as contemplated under Section 173(8) of Cr.P.C. and the Prosecutor taking a call as to whether such documents need to be produced in order to prove the charge against the accused.
23. In view of the above, it is found that the impugned order is unsustainable.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Writ Petition No. 688 of 2020
Decided On: 15.07.2021
Bhagyashree Prashant Wasankar Vs. The State of Maharashtra
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: MANU/MH/1765/2021
1. Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for rival parties.
2. The question that arises for consideration in this Writ Petition is, as to whether a witness appearing for the prosecution in a sessions trial can produce documents which were not part of the charge-sheet filed before the Court and whether such procedure for production of documents directly by the prosecution witness is contemplated under the provisions of the Code of Criminal Procedure, 1973 (Cr.P.C.).
3. The petitioner is one of the accused persons in the trial pending before the Sessions Court i.e. Additional Sessions Judge-11 at Nagpur. The offences alleged against the petitioner and accused persons are under Sections 420, 406, 409, 506 and 120-B of the Indian Penal Code, as also Sections 45(1)(a) and 45(s) of the Reserve Bank of India Act, 1949, Section 24(1) and Section 27 of the Securities & Exchange Board of India Act, 1992 and subsequently added offence under Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999.
4. It is the case of the prosecution that as a consequence of the said alleged offences committed by the petitioner and other accused persons, a large number of investors were defrauded. The Investigating Officer had seized various documents relating to the alleged offences and multiple bulky charge-sheets running into thousands of pages were filed before the Sessions Court.
5. During the course of the trial, a witness, Dr. Ashok Gajanan Lanjewar, was sought to be examined by the prosecution. The said witness moved an application bearing Exh. No. 1106, before the Sessions Court seeking permission to produce additional documents. It was simply stated in the application that the said witness had misplaced the documents and since they were now found, he was seeking to place them before the Sessions Court. The said application was opposed by the petitioner and other accused persons, contending that such an application was not maintainable under the provisions of the Cr.P.C. The petitioner placed much emphasis before the Sessions Court on the scheme of the Cr.P.C. and the role of Public Prosecutor, while contending that the attempt on the part of the witness to produce documents directly in such a manner was unknown to the procedure contemplated under the Cr.P.C. It was submitted that grave prejudice was caused to the accused persons, including the petitioner and that additional documents, if any, could be produced only upon further investigation being undertaken under Section 173(8) of the Cr.P.C. by the Investigating Officer.
6. By the impugned order dated 11/12/2020, the Sessions Court allowed the aforesaid application at Exh.1106. The contentions raised on behalf of the petitioner and other accused persons were rejected. Reference was made to Sections 242 and 294 of the Cr.P.C., as also certain judgments of the Hon'ble Supreme Court and this Court.
7. Aggrieved by the impugned order, the petitioner filed the present Writ Petition, wherein notice was issued on 22/12/2020. The learned APP appeared on behalf of the respondent - State. An application for intervention was filed on behalf of the aforesaid witness i.e. Dr. Ashok Gajanan Lanjewar. But, when this Petition was taken up for hearing on 05/07/2021, none appeared on behalf of the applicant seeking intervention.
8. Mr. D.V. Chauhan, learned counsel appearing for the petitioner reiterated the objections that were raised before the Sessions Court regarding the very maintainability of the application filed on behalf of the said witness, seeking permission to file additional documents on record. The learned counsel placed emphasis on the scheme of the Cr.P.C., referring to various provisions thereof, to emphasize upon the role of the Investigating Officer and that of the Public Prosecutor in a sessions trial. It was submitted that the application filed on behalf of the witness could not be permitted in terms of the procedure contemplated under the Cr.P.C. It was submitted that grave prejudice would be caused to the accused persons if such method of witnesses placing documents on record was to be permitted and that it would be a free for all between the complainant/witnesses on one hand and accused/defence on the other. It was submitted that as per the judgment of the Hon'ble Supreme Court in the case of Central Bureau of Investigation Vs. R.S. Pai and Another MANU/SC/0246/2002 : (2002) 5 SCC 82, it was laid down that the Investigating Officer certainly had power under Section 173(8) of Cr.P.C. to carry out further investigation and thereupon to place on record additional documents in support of the case of the prosecution.
9. It was submitted that in the absence of such procedure being followed, the witness could not be permitted to directly produce additional documents before the Sessions Court during the course of the trial. The learned counsel for the petitioner also invited attention of this Court to the judgment in the case of Niwas Keshav Raut Vs. The State of Maharashtra (at the instance of Miraj Rly. Police Station), passed by this Court reported in . It was submitted that the said judgment pertained to Section 294 of the Cr.P.C. and in the facts and circumstances of the present case, the said provision had no applicability. By inviting attention to the said provision, it was submitted that only the prosecution or the accused, could produce documents before the Court under the said provision, followed by procedure of admission and denial. On this basis, it was submitted that the said provision would also not come to the rescue of the witness in the present case. By referring to the judgment of the Hon'ble Supreme Court in the case of Samsher Singh Verma Vs. State of Haryana MANU/SC/1345/2015 : (2016) 15 SCC 485, it was submitted that the object of Section 294 of Cr.P.C. was to accelerate the pace of the trial and it had nothing to do with the entitlement of a witness to directly produce documents before the Sessions Court during the course of the trial.
10. Ms. Shamsi Haider, the learned APP said that she could not dispute the position of law laid down by the Hon'ble Supreme Court in the case of Central Bureau of Investigation Vs. R.S. Pai and Another (supra). It was submitted that the procedure contemplated under the Cr.P.C. did not provide for any such procedure as permitted by the Sessions Court in the impugned order.
11. As noted above, although an application for intervention was filed on behalf of the said witness, none appeared on behalf of the applicant when this petition was finally heard on 05/07/2021. Despite non-appearance on behalf of the witness seeking intervention, this Court is taking into consideration the contentions raised on behalf of the witness, as manifested in the application for permission to file additional documents (Exh.1106) filed before the Sessions Court. This Court proposes to examine as to whether such an application is maintainable in the eyes of law.
12. A perusal of the material on record in the present case shows that the aforesaid application at Exh.1106 was filed on behalf of the said witness in order to produce additional/original documents in the form of receipts and vouchers in support of the statement of the witness about having invested amounts with the accused persons and having been defrauded in the process. There is no provision of law under which the said application has been filed. It needs to be examined whether the Sessions Court could entertain such an application under the provisions of the Cr.P.C. pertaining to conduct of sessions trials.
13. There is no dispute about the fact that the said witness is one of the witnesses sought to be examined by the prosecution in order to prove its case against the accused, including the petitioner. As per the procedure contemplated under the Cr.P.C., upon completion of investigation, the Investigating Officer under Section 173 of Cr.P.C. submits a final report. Under Section 173(5) of the Cr.P.C. the Investigating Officer forwards to the Magistrate all documents on which the prosecution proposes to rely and statements of witnesses recorded under Section 161 of the Cr.P.C. The report or charge-sheet along with all its accompaniments is also served upon the accused so as to give fair opportunity to the accused to prepare his/her defence. In other words, the documents filed along with charge-sheet are the material upon which the Public Prosecutor ultimately relies when the case is committed to trial before the Sessions Court. In the present case, there is no dispute about the fact that a sessions trial is being conducted against the accused, including the petitioner, which is governed by Chapter XVIII of the Cr.P.C. pertaining to trial before the Court of Sessions. Sections 225 to 237 provide the procedural framework on the basis of which the sessions trial is conducted.
14. Upon the accused pleading not guilty under Section 230 of the Cr.P.C., a date is fixed for prosecution evidence and under Section 231 thereof, on the date so fixed, the Sessions Court proceeds to take all such evidence as may be produced in support of the prosecution. Such evidence includes the recording of evidence of the prosecution witnesses. As noted above, the documents upon which the prosecution seeks to rely are placed on record along with charge-sheet, copies of which are furnished to the accused.
15. In the present case, it is at the stage of examination of the aforesaid witness that the said witness filed the application at Exh.1106, seeking to directly produce additional documents during the course of trial before the Sessions Court. There is no reference to any provision under the Cr.P.C. invoked by the witness for producing the documents directly in such a manner. The accused, including the petitioner, vehemently opposed such an attempt on behalf of the witness, contending that the application was not maintainable. The Sessions Court rejected the contentions raised on behalf of the accused and allowed the said application, the consequence of which is that the documents that are not part of the charge-sheet and relied upon by the prosecution, have directly come on record in the sessions trial.
16. In the context of the specific contentions raised on behalf of the petitioner, it is necessary to refer to the manner in which sessions trials are conducted under the Cr.P.C. and the role of the Public Prosecutor while conducing such a trial. Public Prosecutors are appointed under Section 24 of the Cr.P.C. and Section 225 of Cr.P.C. specifically provides that in every trial before the Court of Sessions the prosecution be conducted by the Public Prosecutor. Section 226 of Cr.P.C. provides that the Prosecutor shall open his case by describing charge against the accused and stating that he proposes to prove the guilt of the accused. The role of the Public Prosecutor in the scheme of the Cr.P.C. is that of an independent office which assists the Sessions Court during the course of the trial to ascertain the truth of the allegations and charges levelled against the accused, in a fair manner. This is precisely the reason why the counsel for the complainant or victim is permitted to only assist the Prosecutor and not to lead the charge during the course of a sessions trial. There is every possibility of a sessions trial degenerating into a vindictive battle between the complainant/victim on the one hand and the accused on the other. It is the Prosecutor's office that leads the charge for the reason that it is the State which prosecutes the accused to prove the charge beyond reasonable doubt and the State acts on behalf of the society at large, because the offences alleged against the accused in sessions trial, by their very nature are offences against the State/society.
17. The Hon'ble Supreme Court has laid down in the cases of Shiv Kumar Vs. Hukam Chand MANU/SC/0533/1999 : (1999) 7 SCC 467, J.K. International Vs. State MANU/SC/0126/2001 : (2001) 3 SCC 462, Sundeep Kumar Bafna Vs. State MANU/SC/0239/2014 : (2014) 16 SCC 623 and Dhariwal Industries Ltd. Vs. Kishore Wadhwani (MANU/SC/1000/2016 : 2016 10 SCC 378, that in a Sessions Trial the public prosecutor leads the charge and that the trial is conducted by the public prosecutor. Even the counsel engaged by the informant, victim or aggrieved person has to act under the directions of the public prosecutor, who represents the State in a Sessions trial, thereby showing the paramount role of the public prosecutor in Sessions trials under chapter XVIII of the Cr.P.C. consisting of sections 225 to 237.
18. It is the Public Prosecutor, who makes the strategic call as to which of the witnesses are to be examined and which of them are to be dropped. It is for the Public Prosecutor to take a call as to the documents on which reliance is to be placed during the course of the trial and it is for this reason that all such documents are placed on record along with the charge-sheet, with copies thereof being furnished to the accused persons. This is to afford the accused persons a fair opportunity to prepare their defence. In these circumstances, it becomes clear that the Cr.P.C. does not contemplate any procedure for a witness to directly produce documents during the course of trial. The procedure known to law whereby additional documents can be produced on record and then relied upon in a sessions trial is through the channel of further investigation, contemplated under Section 173(8) of Cr.P.C., as held by the Hon'ble Supreme Court in the case of Central Bureau of Investigation Vs. R.S. Pai and Another (supra).
19. Recourse to Section 294 of the Cr.P.C. can also not be taken for a witness to claim that he could directly produce additional documents during the course of trial or during the course of recording of his evidence. Section 294 of the Cr.P.C. pertains to no formal proof of certain documents and it opens with the words "Where any document is filed before any Court by the prosecution or the accused", thereby demonstrating that the said provision is applicable only when a document is sought to be produced either by the prosecution or the accused and not any third party like a witness. In fact, in the judgment in the case of Shamsher Singh Verma Vs. State of Haryana MANU/SC/1345/2015 : (2016) 15 SCC 485, the Hon'ble Supreme Court has referred to the object of Section 294 of Cr.P.C. and it has been held that same is for accelerating the pace of trial, by avoiding waste of time in recording unnecessary evidence. The judgment of this Court in the case of Niwas Keshav Raut Vs. The State of Maharashtra (supra) lays down that Section 294 of Cr.P.C. does not place any embargo upon the prosecution or the accused to file a document at a stage subsequent to filing of the charge-sheet. There can be no quarrel with the said proposition. Yet, it cannot come to the aid of the witness in the present case, who has sought permission of the Sessions Court to directly produce documents during the course of trial and at the time of recording his evidence.
20. A perusal of the impugned order shows that there is a reference made to Section 242 of the Cr.P.C. A perusal of the said provision would show that it pertains to the power of the Magistrate to issue summons to any witness on the application of the prosecution, directing such witness to produce any documents or thing. In this provision also, the words "on the application of the prosecution", have been used. Even otherwise, Section 242 of the Cr.P.C. is found in Chapter XIX pertaining to trial of warrant cases by the Magistrate. But, in the present case, the Court below is concerned with a sessions trial under Chapter XVIII of the Cr.P.C. Therefore, reference to Section 242 of the Cr.P.C. by the Court below is also misplaced.
21. A perusal of the provisions of the Cr.P.C. and the entire scheme contemplated therein demonstrates that there is no provision available for a witness to directly seek production of additional documents during the course of sessions trial and at the time of recording of his/her evidence. The Sessions Court in the present case failed to appreciate this aspect of the matter. While passing the impugned order, the Sessions Court also failed to appreciate that permitting such production of additional documents by the witnesses directly would prejudice the accused persons by depriving them of a fair opportunity to prepare their defence. The whole purpose of filing of charge-sheet, upon completion of investigation along with documents upon which the prosecution desires to place reliance, would be defeated if witnesses are permitted to directly produce additional documents in such a manner.
22. The additional documents could be produced by following the procedure of further investigation as contemplated under Section 173(8) of Cr.P.C. and the Prosecutor taking a call as to whether such documents need to be produced in order to prove the charge against the accused.
23. In view of the above, it is found that the impugned order is unsustainable. Accordingly, the Writ Petition is allowed and the impugned order is quashed and set aside.
24. Needless to say, the additional documents sought to be relied upon could be produced before the Sessions Court in the trial, only in accordance with procedure known to law and not otherwise.
25. In view of disposal of Writ Petition, Criminal Application (APPW) No. 50 of 2021, stands disposed of.
Rule is made absolute in above terms.
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