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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
DHARAM CHAND CHAUDHARY, J.
Mahesh Puri – Appellant
Versus
State of Himachal Pradesh - Respondents
Cr.MMO No.120 of 2014.
Decided on : 17-10-2014
Annexures - Criminal Procedure - Section 311 of the Code of Criminal Procedure - Sections 465, 468, 420, 109, 471, 120-B of the Indian Penal Code and Section 13(1)(d) of Prevention of Corruption Act, 1988 - 311
Fact of the Case:
The prosecution sought to produce certain annexures in evidence, which were not part of the investigation conducted or taken into possession by the Investigating Officer. The trial Court allowed the prosecution to produce the annexures, but the accused contested, leading to a legal dispute.
Finding of the Court:
The Court found that the documents sought to be produced were not part of the record and could not be allowed to be produced under Section 311 of the Code. The Court emphasized that the prosecution should have resorted to the provisions under Section 173(8) of the Code for producing the documents in evidence.
Issues: The main issue was whether the documents not part of the investigation could be produced in evidence under Section 311 of the Code.
Ratio Decidendi: The Court held that the documents sought to be produced could not be allowed under Section 311 of the Code and emphasized the prosecution's need to resort to the provisions under Section 173(8) of the Code for producing such documents.
Final Decision: The impugned order allowing the production of the documents was quashed and set aside, with liberty for the prosecution to resort to appropriate remedy in accordance with law.
JUDGMENT :
Dharam Chand Chaudhary, J.
Complaint is that learned trial Court vide order Annexure P-9 under challenge in this petition, has erroneously allowed the prosecution to produce in evidence Annexure-1, Annexure B-1, Annexure C-1, Annexure-D, Annexure-E and Annexure-F to the report Ext.PW-10/B, being not the part of the investigation conducted nor taken into possession by the Investigating Officer during the course of investigation.
2. The petitioner is accused in Corruption Case No.8-S/7 of 2009 and is being tried for the commission of offence punishable under Sections 465, 468, 420, 109, 471, 120-B of the Indian Penal Code and Section 13(1)(d) of Prevention of Corruption Act, 1988. The report Ext.PW-10/B has been relied upon against him. The same as per version of the prosecution is incomplete as its Annexures referred to hereinabove could not be taken into possession by the Investigating Officer during the course of investigation.
3. The prosecution initially filed an application under Section 311 of the Code of Criminal Procedure in the trial Court for permission to produce the Annexures to report Ext.PW-10/B in evidence by examining Shri Anil Gupta, Executive Engineer (PW-10). The said application was allowed by learned trial Court vide order dated July 19, 2013. In a petition registered as CRMMO No.4043 of 2013 preferred in this Court against the said order, the same was quashed with liberty reserved to the respondent- State to file fresh application vide judgment dated November 26, 2013. Relevant portion thereof reads as follows:
“Having gone through the record and also taking into consideration the rival submissions it transpired that in the application under Section 311 Cr.P.C., Annexure P-4 to this petition no details qua the nature and contents of the annexure to the report Ex.PW-10/B, sought to be produced in evidence find mention. Not only this, but its copy was neither annexed to the application nor made available to the accused-petitioners to enable them to contest the same more effectively, particularly whether the so called annexure, sought to be produced in evidence, is part and parcel of the report Ex.PW-10/B or not and taken into possession during the investigation of the case therewith. The present, therefore, is a case where the accused petitioners have been condemned unheard and, as such, the impugned order being legally unsustainable deserves to be quashed, of course, with liberty reserved to the respondent-State to file fresh application highlighting therein all details qua the contents and nature of the 'annexure’ to report Ex.PW-10/B, now sought to be produced in evidence, the relevancy thereof vis-a-vis the investigation conducted and the evidence collected.”
4. Consequent upon the order ibid, the respondent-State (prosecution) preferred fresh application Annexure P-7. The detail of the documents, i.e., Annexures to Ext.PW-10-/B has been furnished in para 4 of the application.
5. The accused-petitioner contested the application on the ground that neither the Annexures sought to be produced are on record nor any witness while in the witness box has stated about the existence of the same and as such sought the same to be dismissed. Learned Special Judge has, however, accepted the application and allowed the respondent-State to produce the documents in question by recalling PW-10 for further examination. The relevant portion of the order passed by learned Special Judge reads as follows:
“….The report Ext.PW-10/B is based upon annexures sought to be produced. Moreover, the annexures are to be produced from public record by the prosecution to falsely implicate the accused persons. Simply because the prosecution or the I.O. has not placed on record these documents, which may be due to various reasons also, is no ground for dismissal of this application. The annexures are part of the report and are necessary for just decision of the case. The defence shall have opportunity to cross-examine PW-10 when this
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