2017 Supreme(Guj) 596

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Jayeshbhai Khemchandbhai Patel – Appellant
Vs.
State of Gujarat – Respondent
Special Criminal Application (Quashing) No. 778 of 2017
Decided On : 17-03-2017

Important Point:
a) A criminal trial cannot be allowed to assume the character of fishing and roving enquiry
b) it was the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of witness statements to the defense and all relevant experiments and tests must also be disclosed. It was held that the common law duty to disclose would cover anything which might assist the defensec) It should not be the prosecution alone who should have the benefit of scientific method and we feel that the accused also must have that benefit and in order to have that benefit and to give him fair opportunity of defending himself, we consider that the enlarged photographs are a must and we also consider that because the State handwriting expert has based his opinion and the reasons for his conclusion after perusing the enlarged photographs and also that because the enlarged photographs will be necessary to aid the accused and also the Court for coming to the proper conclusion about the handwriting, those enlarged photographs can be said to be the documents on which the prosecution proposes to rely and therefore we think that those documents must be available to the accused before the State handwriting expert steps into the witness box or at least to be available to the accused free of cost during the trial to get help from his expert.

Headnote:Constitution of India, 1950--- Article 227--- Code of Criminal Procedure, 1973 --- Sec. 173 and 207 --- Indian Penal Code, 1860--- Sections 376, 323, 506 ,114 --- Rape of a nurse student in University---documents which prosecution intends to rely upon during the trial more particularly related to FSK, DNA and Doctors' report be provided at this very point of time, asserted as a matter of right---non-compliance of the provisions of S. 173(4)(i.e. not supplying the copies to the accused) has not the result of vitiating the proceedings and the subsequent trial---Section 173(5) cannot be interpreted as mandatory---When a trial is conducted in a manner different from that prescribed by the Code, the trial is bad and question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the code, but some irregularity occurs in the course of such conduct, the irregularity can be cured and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code---denial to the accused of an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the Court has used these entries for the purpose of contradicting such police officer cannot be said to be unreasonable.---right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions afore-referred.---if the prosecution relies on the opinion of the handwriting expert, the accused is entitled to know in advance the reasons of the handwriting expert for giving such an opinion. If the accused is not supplied with the copy of the reasons, he would not be in a position to confront the Handwriting Expert properly at the time of the trial--- Held: present case is nothing, but a roving inquiry at the end of the accused at the stage of framing of the charge.---charge-sheet filed gives more than a fair idea to the accused about the accusations and the materials collected by the Investigating Agency in respect of the same---applicant accused is to conduct a mini-trial much before the charge is framed, which is otherwise not permissible in law---the prosecution cannot be compelled to produce any document and it is incumbent on its part to supply copies to the defence of such document only on which they propose to rely---too much to say that the prosecution should make a positive statement in this regard at this very stage as to what documents they propose to rely or do not propose to rely.

       Result: Application Dismissed