Criminal revisions challenging the trial court's allowance for prosecution to summon documents in District Judge's custody referred to in charge sheet. Court dismissed revisions, holding no prejudice to accused and no mandatory nature of Section 173(5) Cr.P.C.
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THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE Nos. 2096 and 2152 of 2011 COMMON ORDER:
Criminal Revision Petition Nos.2096 and 2152 of 2011 are filed against the order dated 07.09.2009 in Crl.MP.No.2797 of 2009 and Crl.MP.No.3161 of 2009 respectively, in C.C.No.194 of 2007, on the file of Special Mobile Magistrate, Guntur.
Heard.
Brief facts that are necessary for disposal of these revisions are stated as follows:
On a report given by the Administrative Officer, District Court, Guntur, to the SHO, Nagarampalem L&O P.S, Guntur, stating that the petitioner/accused resorted to misappropriation of public money by issuing government cheques to unauthorized persons and also fraudulently encashed by unauthorized persons, a case was registered in Crime No.158 of 2003 for the offences punishable under Sections 409, 468 and 471 r/w 34 IPC. After investigation, police filed charge sheet into the Court of Special Mobile Judicial First Class Magistrate, Guntur, which was taken on file as C.C.No.194 of 2007. In the said C.C., the prosecution filed Crl.MP.Nos. 2797 and 3161 of 2009 under Section 91 Cr.P.C., seeking to call for the document i.e. Cheque bearing No.8428/842742 dated 10.06.1996 for Rs.51,826/- issued in favour of one V. Sakunthala in O.P.No.119/88; and seeking to call for certain documents which are in the custody of District Judge, Guntur, respectively. The accused opposed the said petitions on the ground that it was neither mentioned in the charge sheet nor in the statements recorded under Section 161 Cr.P.C., that the said documents which are in the custody of the defacto complainant, i.e. the District Judge, Guntur, could not be collected by the
Investigating Officer during the course of investigation, or that because the enquiry was pending, the said documents were not handed over to the Investigating Officer. The trial Court, having considered the rival contentions, allowed the petitions holding that the Court can receive documents filed by the prosecution even after filing of the charge sheet. Challenging the same, these revisions are filed.
Learned counsel for the petitioner contended that the provisions under Section 173(5) Cr.P.C., are mandatory in nature and hence, the impugned orders are liable to be set aside.
Learned Additional Public Prosecutor contended that though they could not produce the said documents at the time of filing of charge sheet, they are essential to prove its case.
These petitions are criminal revisions filed under Sections 397 and 401 Cr.P.C. Unless it is shown that the trial Court arrived at an illegal, incorrect or improper finding, this Court, ordinarily would not interfere with the same. No doubt, Section 173(5) mandates the police officer to forward all documents to the Magistrate, but it is not a mandatory provision. Section 91 of Cr.P.C empowers a Court to issue summons or an order for the production of any document or other thing in the possession or power of a person which is considered necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding. Anything which may reasonably be a part of the evidence or anything which though not evidence has a direct connection between it and the subject matter of the proceeding may be ordered to be produced, but not a thing which has no connection with trial in hand. Admittedly, the documents sought to be summoned by the prosecution are under the custody of the District Judge who is the defacto complainant, and the purport of the
documents have been referred to in the charge sheet filed by the police. Though the prosecution ought to have taken copies of the said documents and filed them at the time of filing charge sheet, but however, even if some irregularities committed by the investigating officer during the course of investigation, the same cannot be taken as an advantage by the accused, more so when the documents have been referred to in the charge sheet. Therefore, non-filing of the said documents by the prosecution at the time of filing of charge sheet, cannot be said to be willful or intentional. On the other hand, if the said documents are summoned, the accused would also have the opportunity to challenge the same, and further the said documents are already referred to in the charge sheet. It is not a case of filling up lacunae in the prosecution’s case. Hence, no prejudice would be caused to the accused if they are summoned. Therefore, the impugned orders need no interference by this Court.
Hence, both the criminal revisions are dismissed.
____________________ JUSTICE K.C. BHANU
17th February, 2012
KSM
2 issues framed by the court
Whether the trial court erred in allowing the prosecution to summon documents in the custody of the District Judge referred to in the charge sheet.
Whether Section 173(5) Cr.P.C. is mandatory and requires setting aside the impugned orders.
4 provisions across 2 enactments
petitioner
respondent
K.C. Bhanu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
