A.F.R.

Court No. - 64

Case :- APPLICATION U/S 482 No. - 41885 of 2022

Applicant :- Prashant Jaiswal

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Sudarshan Singh,Vinay Kumar

Counsel for Opposite Party :- G.A.

Hon'ble Saumitra Dayal Singh,J.

1. Heard Shri Sudarshan Singh, learned counsel for the applicant

and learned A.G.A. for the State.

2. Challenge has been raised to the order dated 21.11.2022 passed

by the learned court below on Paper No. 10-Kha in Session Trial

No. 699 of 2022 (State Vs. Prashant Jaiswal), arising out of Case

Crime No. 54 of 2021, under Sections - 376, 323, 504, 506 I.P.C.

By that order, the learned court below has rejected the application

moved by the applicant/accused person. It has thus refused to

make available to the applicant a clone copy of the data available

on a pen drive submitted by the Investigating Officer as part of the

case diary.

3. Submission of learned counsel for the applicant is, the clone

copy of the pen drive is necessary to be provided to the applicant

to allow him a fair opportunity to confront the prosecution witness

with certain parts thereof. Inasmuch as the data on that pen drive is

not material referable to Section 173 (6) of the Cr.P.C., rather, it

appears to be data referable to section 173 (5) Cr.P.C., the accused

has a perfect right to be supplied a copy of the same in the interests

of a fair trial which is directly referable to his fundamental right.

4. As to the reasoning offered by the learned court below, it has

been submitted, grave error has been committed by it in assuming

a violation of privacy of the victim, if the data on the pen drive is

made available to the applicant. In the context, violation of

fundamental right of the applicant to a fair trial, he would submit,

the concerns of privacy may have been addressed by the learned

court below by providing for restrains on the applicant from

making public, any part of the data that may be thus made

available to the applicant. In any case, a full transcript of the audio

transaction ought to have been provided to the applicant. Last, it

has been submitted, playback of the audio recording once, may not

be enough to allow the applicant and his counsel a full and fair

opportunity to formulate the exact questions to be put to the

prosecution witness. The right of the defence cannot be curtailed

on a vague and nebulous concern regarding privacy of the alleged

victim. If allowed, it may seriously impair the impartiality and

fairness of the trial proceedings, to the grave prejudice of the

applicant.

5. On the other hand, the learned AGA would submit, at present it

is not clear if the prosecution has relied and any part of the

data/audio transaction claimed to be recorded on the pen-drive.

Unless that were done first, the applicant cannot claim a right to be

made available such document/material.

6. Having heard learned counsel for the parties and having perused

the record, section 173(5) and (6) and section 207 Cr.P.C. read as

under:

"173. Report of police officer on completion of investigation.-

(5) When such report is in respect of a case to which section 170 applies, the

police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution

proposes to rely other than those already sent to the Magistrate during

investigation;

(b)the statements recorded under section 161 of all the persons whom the

prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not

relevant to the subject- matter of the proceedings or that its disclosure to the

accused is not essential in the interests of justice and is inexpedient in the

public interest, he shall indicate that part of the statement and append a note

requesting the Magistrate to exclude that part from the copies to be granted

to the accused and stating his reasons for making su