15 Jul 2121

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 - Bombay High Court

Case : Bhagyashree Prashant Wasankar v. The State of Maharashtra Criminal Writ Petition No. 688 of 2020

Court : Bombay High Court

Bench : Justice Manish Pitale

Decided on : 15 Jul 2121

Relevant Statutes

Sections 420, 406, 409, 506 and 120-B of the Indian Penal Code, 1860

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

Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999.

Sections 161, 173(8), 225 to 237, 242 and 294 of the Code of Criminal Procedure, 1973

Brief Facts and Procedural History

1. The petitioner, 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 as mentioned thereunder. It was 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.

2. 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.

3. 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 Edh. 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 Code of Criminal Procedure, 1973.

4. The petitioner placed much emphasis before the Sessions Court on the scheme of the Code of Criminal Procedure, 1973 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 Code of Criminal Procedure, 1973. 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 Code of Criminal Procedure, 1973.by the Investigating Officer.

5. 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 Code of Criminal Procedure, 1973 as also certain judgments of the Hon’ble Supreme Court and the Honourable Bombay High Court.

6. Aggrieved by the impugned order, the petitioner filed the Writ Petition, before the Honourable Bombay High Court.

Issue of the Case

Whether a witness appearing for the prosecution in a sessions trial can produce documents that were not part of the charge-sheet, under the provisions of the Code of Criminal Procedure, 1973?

The Observation of the Court

After considering the arguments of both the parties the Honourable Bombay High Court observed that:

1. The Honourable Bombay High Court observed that in the context of the specific contentions raised on behalf of the petitioner, it was necessary to refer to the manner in which sessions trials are conducted under the Code of Criminal Procedure, 1973 and the role of the Public Prosecutor while conducting such a trial. “Public Prosecutors are appointed under Section 24 of the Cr.P.C. and Section 225 of the Code of Criminal Procedure, 1973 specifically provides that in every trial before the Court of Sessions the prosecution be conducted by the Public Prosecutor. Section 226 of the Code of Criminal Procedure, 1973 provides that the Prosecutor shall open his case by describing the 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 Code of Criminal Procedure, 1973 is that of an independent office that 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.”

2. The Honourable Bombay High Court observed that the Honourable Supreme Court has laid down in the cases of Shiv Kumar Vs. Hukam Chand (1999) 7 SCC 467, J.K. International Vs. State (2001) 3 SCC 462, Sundeep Kumar Bafna Vs. State (2014) 16 SCC623 and Dhariwal Industries Ltd. Vs. Kishore Wadhwani (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 Code of Criminal Procedure, 1973 consisting of sections 225 to 237.

3. 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 the Code of Criminal Procedure, 1973, as held by the Honourable Supreme Court in the case of Central Bureau of Investigation Vs. R.S. Pai and Another (2002) 5 SCC 82

4. The Honourable Bombay High Court observed that in the judgment in the case of Shamsher Singh Verma Vs. State of Haryana (2016) 15 SCC 485, the Hon’ble Supreme Court has referred to the object of Section 294 of the Code of Criminal Procedure, 1973 and it has been held that same is for accelerating the pace of the trial, by avoiding waste of time in recording unnecessary evidence. The judgment of the Honourable Bombay High Court in the case of Niwas Keshav Raut Vs. The State of Maharashtra (2015 SCC OnLine Bom 4214) lays down that Section 294 of the Code of Criminal Procedure, 1973 does not place any embargo upon the prosecution or the accused to file a document at a stage subsequent to the 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.

5. A perusal of the impugned order showed that there was a reference made to Section 242 of the Code of Criminal Procedure, 1973. 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 Code of Criminal Procedure, 1973 is found in Chapter XIX pertaining to the 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 Code of Criminal Procedure, 1973. Therefore, reference to Section 242 of the Code of Criminal Procedure, 1973. by the Court below was also misplaced.

6. A perusal of the provisions of the Code of Criminal Procedure, 1973 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 failed to appreciate the 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.

7. The Honourable Bombay High Court stated that the additional documents could be produced by following the procedure of further investigation as contemplated under Section 173(8) of the Code of Criminal Procedure, 1973 and the Prosecutor taking a call as to whether such documents need to be produced in order to prove the charge against the accused.

The Decision Held by the Court

The Honourable Bombay High Court held that:

1. The said impugned order is unsustainable.

2. The Writ Petition was allowed and the impugned order was quashed and set aside.

3. The additional documents sought to be relied upon could be produced before the Sessions Court in the trial, only in accordance with a procedure known to law and not otherwise.

4. In view of disposal of Writ Petition, Criminal Application (APPW) No. 50 of 2021, stands disposed of.

5. Rule was made absolute in the above terms.

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