Prosecution can produce unavailable documents post charge-sheet before evidence under Section 294 CrPC after hearing accused, without prejudice; distinguishes victim-led applications; bars review attempts under Section 362.

JUDGMENT :

MEHROZ K. PATHAN, J.

1. The petitioners are challenging the order dated 01.12.2023 passed by the learned Sessions Judge, below Exh. 71 and the order dated 05.01.2026 passed below Exh. 125 in Sessions Case No. 95 of 2020.

2. The learned counsel for the petitioners submits that the petitioners have filed the application below Exh.125 with a prayer not to refer to the documents filed by the prosecution on 15.3.2023 in the evidence of the witnesses during the trial. The said application was contested by the prosecution and after detail hearing, the learned trial court has rejected the application on the ground that the documents were allowed to be produced on record vide order dated 1.12.2023 on an application filed by the prosecution on 15.9.2023. The application with a prayer not to refer to the documents filed by the prosecution is an attempt to recall the order dated 1.12.2023 passed by the learned Sessions Judge and would amount to recalling or reviewing the order, which is specifically prohibited under Section 362 of Cr.P.C.

3. The learned counsel for the petitioners submits that the prosecution has filed an application for production of documents after filing of charge sheet. The said documents were not part of the charge sheet and as such, could not have been allowed by the Sessions Court in view of the judgment of the Bombay High Court in the matter of Bharat alias Bhomaram Choudhary vs. State of Maharashtra (2024)DGLS Bom. 4815 and Wazid Ansari vs. State of Maharashtra reported in (2024)All M.R.Cri. 3512.

4. The learned counsel for the petitioners submits that perusal of the provisions of Cr.P.C. and the entire scheme contemplated therein demonstrates that there is no provision available for the prosecution to produce documents which were not part of the charge sheet. Any such attempt on behalf of the prosecution had to be in furtherance of the investigation carried out under Section 173(8) of the Cr.P.C. in which some new evidence is collected by the prosecution. The documents which are sought to be relied upon by the prosecution are medical certificates of the injured witnesses, which were not part of the charge sheet and thus, ought not to have been referred by the prosecution to its witnesses and the same is specifically prohibited in view of the aforesaid two pronouncements of the Bombay High Court in the matters of Bharat Chaudhari and Wazid Ansari, cited supra. The learned counsel, therefore, prays for setting aside the order dated 1.12.2023 passed below Exh.71 and subsequent order dated 5.1.2026 below Exh.125, passed by the learned Sessions Court, in Sessions Trial No. 95 of 2020.

5. I have gone through the order dated 1.12.2023 and the order dated 05.1.2026 and the charge-sheet filed by the prosecution. Perusal of the order dated 1.12.2023 passed by the learned Sessions Judge, below Exh.71 would show that the said order was passed on an application filed by the prosecution. The said application was allowed after calling for the say of the accused. The accused have filed their say on 15.9.2023 on the said application. Thus, after considering the documents sought to be placed on record and the charge sheet filed by the prosecution the trial court, vide order dated 1.12.2023 had allowed the said application below Exh.71 allowing the prosecution to produce documents which are nothing but medical papers of the injured witnesses. Perusal of the application Exh.71 filed by the prosecution shows that witnesses were admitted in the hospital for further treatment, ho