The prosecutor has a duty to bring forth all relevant evidence, and the defense is not obligated to establish its innocence. The purpose of Sec.233(3) of the Criminal Procedure Code is to ensure that all relevant evidence is brought forth for a just determination.

1. By order dated 3.11.2006, the case diary was called for and the case was ordered to be listed thereafter, Opposite Party No. 2, the informant, has appeared.

2. Heard the parties and with their consent, the case is being disposed of at this stage itself.

3. The petitioners are accused of offences under Sections 302/34 of Indian Penal Code and Sec.27 of the Arms Act for allegedly murdering the deceased. They were put on trial. The prosecution closed its case which was, inter alia, based on the allegations as made out in the first information report. At the stage of entering defence, in terms of Sec.233(3) of the Code of Criminal Procedure, an application was made on behalf of the defence requesting the Additional Sessions Judge I, Patna before whom the trial was pending for summoning two documents which were station diary entry No. 215 of Khagaul Police Station of the year 2001 and the wireless message bearing PCCRLM No. 53 dated 11th September, 2001 from the police. It was stated on behalf of the petitioners that these two documents would clearly have revealed that the police had first received information that some unknown persons had shot the deceased. These two documents were available to the prosecution but they deliberately suppressed the same and in their cross-examination denied suggestions of their existence. It is submitted that if these two documents were brought on record by the prosecution, these documents being documents in the possession of the police as a part of the police record, then prima facie the first information report itself would have been discredited as that is said to be recorded prior to the two aforesaid communications as recorded.

First information report names persons and preponderates the time of death. The two sets of prosecution documents would be in contradiction to each other. It is submitted that the prosecutor should not identify himself with the informant. His job is to establish the truth and not the case of any particular party. The prosecutor by not bringing on record the police documents acted in a parisan manner and, therefore, it was in an interest of justice that in terms of Sec.233(3) of Criminal Procedure Code, the Court should have summoned the two documents and examined them and take steps to get them properly exhibited and brought on record. Instead by the impugned order, the trial Court has gone into the question of probative value of the documents or its admissibility which is not permissible at the stage of summoning the document in terms of Sec.233(3) of Criminal Procedure Code.

4. Mr. Jaiswal for the State submits that it was for the petitioners, the defence, to solicit information about these documents in their cross-examination or to bring these documents on record through their defence witness to establish their innocence. The process of Court could not be used to establish the innocence of the defence or the falsity of the prosecution case.

5. Having considered the matter, the submissions of Mr. Jaiswal do not appear to be in consonance with established principles of criminal jurisprudence. If the prosecution has with it evidence which would throw light upon the true facts then it is for the prosecutor to bring those facts on record. The prosecutor is the first Judge of the truth of the case. He cannot withhold documents only with a view to advance the case of the informant. He has to advance the cause of justice in bringing an accused to trial. The prosecutor would be failing in his duty if the aforesaid said documents, the existence of which is not denied, is not brought on record. It would lead to miscarriage of justice. Now coming to the question of defence trying to establish its innocence, this is contrary to the well established criminal jurisprudence in such matters where the onus is on the prosecution to prove the guilt and not on the defence to establish its innocence. The defence is only to create doubt in the story set up by the prosecution. If w