Point of Law: If document was within knowledge of investigating officer, prosecution cannot be permitted to produce it on a later stage to surprise of accused.

ORDER :

This petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C’ for short) to quash Annexure-1, viz. common order in C.M.P.Nos.1322/2022 and 1323/2022 in S.C.No.265/2018 on the file of the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as `SC/ST (POA) Act' for convenience), Mannarkad, Palakkad. Petitioner herein is the 1st accused in the above case.

2. Heard the learned counsel for the petitioner Sri John Sebastian Ralph as well as the learned Senior Public Prosecutor, Sri S.U.Nazar.

3. Bereft of unnecessary embellishments, the facts of the case are as under:

4. In S.C.No.265/2018, the prosecution alleges commission of offences under Sections 143, 147, 148, 323, 324, 326, 294(b), 342, 352, 364, 367, 368, 302 r/w 149 of the Indian Penal Code (hereinafter referred to as `IPC' for short) and Section 3(1)(d)(1), 3(2)(v) of the SC/ST Act, by the accused. During the final stage of trial, the learned Special Public Prosecutor filed CMP.No.1322/2022 with prayer to call for certified copy of the report of inquiry under Section 176(1-A) of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for short), filed by the Judicial First Class Magistrate, Mannarkkad. Similarly, CMP.No.1323/2022 also was filed to issue summons to the custodian of the inquiry report filed by Geromic George, the Sub Divisional Magistrate, Ottappalam and the Judicial First Class Magistrate, Mannarkkad to depose about the reports filed by them.

5. Accused No.1 and other accused filed objections resisting the petitions. Accused No.1 is the petitioner herein. The main contentions raised in the objection filed by the 1st petitioner/accused as stated in paragraphs 3 to 5 are as under:

“3. The prosecution is playing a hide and seek game in this matter. The prosecution is now pretending ignorance of the contents of the documents mentioned in the petition. They are pretending that they have become aware of this only during the examination of CW78. This is absolutely incorrect. The Sub Divisional Magistrate and the Judicial Magistrate of the First Class are employed under the State of Kerala. Sub Divisional Magistrate is said to have submitted his report to the District Magistrate/District Collector. The Judicial Magistrate of the First Class – Mannarkkad is said to have submitted his report to the District Collector. Hence the State of Kerala cannot plead ignorance about the same. The said documents are forwarded to the concerned authorities not for retaining the same in sealed covers, but for initiating necessary actions in pursuance of the reports. Hence, if the prosecution is relying on the report, they ought to have produced the same at the time of filing the charge.

4. The prosecution is not entitled to file a petition without disclosing the contents of the reports and without furnishing copies of the reports. Only when the copies of the reports are furnished, the accused will be in a position to say whether the same can be admitted in evidence or not. Hence, before taking a decision in the petition, it is absolutely necessary that the petitioner/State of Kerala is directed to furnish copies of the said reports.

5. If the reports are to the effect that the death is not a custodial death, it is respectfully submitted that the reports filed by the above mentioned officers, are not admissible in evidence as the same are only conclusions arrived at by the said officers on the basis of the facts and evidence which are not subjected to cross examination by the accused. Hence, the said reports cannot be admitted in evidence even if the authors of the reports are examined. A conclusion arrived at by an authority without the participation of the affected parties and without giving an opportunity for cross examination by the affected parties, cannot be accepted in evidence.”

6. The learned Special Judge considered the rival contentions and final