Section 165 of the Indian Evidence Act empowers the court to elicit truth and act in the interest of justice by allowing the production of documents necessary to discover facts.

JUDGMENT :

1. Heard Mr. Jitendra S.Singh, the learned counsel appearing on behalf of the petitioner and Mrs. Priya Shrestha, the learned counsel for the respondent State.

2. This petition has been filed for quashing the order dated 01.02.2020 passed in Birsanagar P.S. Case No.21 of 2017 dated 29.3.2017, G.R.No.882 of 2017 whereby learned court has allowed the petition dated 16.01.2020 filed by the prosecution to prove the documents produced by the Investigating Officer under section 165 of the Evidence Act, 1872, pending in the court of learned Chief Judicial Magistrate, Jamshedpur.

3. Mr. Jitendra S. Singh, the learned counsel appearing for the petitioner assailed the impugned order on the ground that illegality has been done by the learned court by way of allowing the documents to be proved under section 165 of the Indian Evidence Act. He further submits that under section 207 Cr.P.C the documents are required to be handed over to the accused for defence and those documents have not been supplied. He submits that at this stage the learned court has not supposed to allow the prayer under section 165 of the Indian Evidence Act. He further submits that in the light of sub section 5 of section 173 Cr.P.C the documents are required to be forwarded to the learned court which has not been done in the case in hand. He further submits that recently the lacuna of the trial has been considered by the Hon’ble Supreme Court in the case of “Criminal Trial Guidelines Regarding Inadequacies and Deficiencies v. State of Andhra Pradesh and Others”, (2021) 10 SCC 598 and submits that certain guidelines has been issued by the Hon’ble Supreme Court.

4. Mrs. Priya Shrestha, the learned counsel appearing for the respondent State submits that there is no illegality in the impugned order and the learned court has rightly allowed the petition and no prejudice has been caused to the petitioner and she submits that in the light of sub section 5 of section 173 Cr.P.C there is no bar of producing the documents at any stage before closing of the case and she submits that the learned court has rightly passed the order.

5. In the light of the above submission of the learned counsel for the parties the Court has perused the impugned order dated 01.02.2020 whereby the documents has been allowed to be exhibited under section 165 of the Indian Evidence Act by the learned court. The learned court has considered that relevance of those documents have been disclosed in paragraph no.49, 39, 51, 53 and 58 of the case diary. However, the learned court has also discussed that the prosecution has not assigned any reason as to why I.O has withheld it however, in the interest of justice considering the best evidence should be brought on record by the learned court has allowed the petitioner under section 165 of the Indian Evidence Act and right to cross examine has been kept open to the petitioner by the impugned order dated 01.02.2020. It is well settled that the trial Judge is not expected to act like a mere tape recorder and to record whatever has been stated by the witnesses under section 311 Cr.P.C and 165 of the Indian Evidence Act. Efforts should be made to elicit all necessary materials by playing an active role in the evidence collecting process. A reference may be made to the case of “Vikas Kumar Vs. State of Uttarakhand”, (2011) 2 SCC 178. Section 165 of the Evidence Act is an extra ordinary power conferred upon the courts to elicit truth and to act in the interest of justice. It is obvious that a direction to produce the document issued under section 165 of the Evidence Act only if the Judge is of the opinion that the production of the document is necessary to discover the fact and such provision could be arrived at by the Judge while referring to the materials already on record. In the case in hand in view of paragraph no.49, 39, 51, 53 and 58 the relevance of those documents are already there. In the criminal case the Judge is required to take all efforts to