As per case facts, an application was filed seeking FIR registration against the petitioner and six others for various IPC offenses. Due to a significant delay in reporting the alleged ...
CRM-M-50284-2023 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-50284-2023
Simarjeet Singh Bains …Petitioner
Versus
State of Punjab and others …Respondents
1
The date when the judgment is reserved 21.04.2026
2 The date when the judgment is pronounced 07.07.2026
3 The date when the judgment is uploaded on the website 07.07.2026
4 Whether only operative part of the judgment is
pronounced or whether the full judgment is pronounced
Full
5 The delay, if any, of the pronouncement of full judgment,
and reasons thereof
Not Applicable
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA
Present: Mr. A.P.S. Deol, Senior Advocate, with
Mr. Vishal R. Lamba, Advocate, and
Mr. Arun Goyat, Advocate, for the petitioner.
Mr. Jastej Singh, Additional Advocate General, Punjab.
Mr. Aakash Singla, Advocate, for the complainant.
TRIBHUVAN DAHIYA, J.
The petition has been filed under Section 482 Cr.P.C. for setting
aside the order dated 25.09.2023, Annexure P-13, whereby learned
Additional Sessions Judge, Fast Track Special Court, Ludhiana, has
dismissed the petitioner’s application dated 05.04.2023, Annexure P-7,
CRM-M-50284-2023 2
seeking a direction to the prosecution to supply a copy of statement of
PW-Kamalpreet Singh and inquiry report/noting of Ms. Ashwani Gutyal,
IPS, the then Additional Deputy Commissioner of Police (ADCP), Ludhiana,
along with statements of witnesses recorded by her, and rest of the evidence
collected.
2. Facts of the case in brief are, an application was filed by one
‘G’ under Section 156(3) Cr.P.C., dated 03.12.2020, Annexure P-1, bearing
CIS Application No. CRM/3542 of 2020, before learned Chief Judicial
Magistrate (CJM), Ludhiana, seeking a direction to the Commissioner of
Police, Ludhiana, for registration of FIR against the petitioner and six other
accused under Sections 376, 354, 354-A, 506 and 120-B IPC. The
allegations inter alia were that the petitioner raped her in his office cabin on
04.08.2020. Learned CJM called for status report from the respondent State,
whereupon a report dated 22.12.2020, Annexure P-2, was filed by the ADCP,
Hq. & Sec. Ludhiana, which is to the following effect:
In the Court of Sh. Palwinder Singh, JMIC, Ludhiana
No. 1392-5A/ADCP-HQ & Sec. dated- 22-12-2020
Sub: Regarding status report of complaint from G… as per
orders in CRM 3542 of 2020 CNR
No.PBLD030565742020.
Respected Sir,
Brief facts of the case are as follows:
1. A complaint was received from Ms. G… w/o Lt. Jaspal Singh
r/o st no. 11-L near Podar School, Ishar Nagar, backside G.N.E. college,
Ludhiana vide complaint no. 1921027 on dated 16-11-2020 in the office
of Commissioner of Police, Ludhiana which was entrusted to Ms.
Kanwardeep Kaur, IPS, JCP Ludhiana (Rural) for enquiry & take
necessary action as per law and report. Copy of said complaint is
attached as annexure-1.
CRM-M-50284-2023 3
2. As the said complaint of rape was made after a considerable
delay there was a need to conduct preliminary enquiry.
3. No exact date and time of alleged offence was given in the
complaint. It has generally been written that the offence was committed
10-12 times over a period of time.
4. During enquiry it was further revealed that the said G… has
earlier given a complaint vide complaint number UID 1891931 dated
05-10-2020 against one Sukhchain Singh s/o Basant Singh r/o st. no. 6,
Ishar Nagar, backside G.N.E college. Ludhiana leveling certain
allegation. The said complaint was enquired by ADCP-2 Ludhiana.
Later on both the parties compromised the matter and the complaint
was filed, Copy of the said complaint along with copy of enquiry report
is attached as annexure-2.
5. After the transfer of enquiry officer Joint CP Rural from
Ludhiana as SSP Kapurthala on dated 21-11-2020 the said enquiry was
further marked to the undersigned ADCP (Hq & Sec), Ludhiana.
6. In pursuance of the said matter both the parties were called and
their statements were recorded. Documentary and other evidences
which came up during the enquiry are being verified in detail.
7. Call detail records have been requested for the period in
question.
8. The enquiry is still going on in the above said matter
9. It is worthwhile to mention that the complainant G… has also
filed a writ petition with No. CRM-M 39189 of 2020 in Hon'ble Punjab
& Haryana High Court. The said writ came for first hearing on 27th
November 2020 and the Hon'ble High Court has already issued Notice
of motion for 23.4.2021.
Status report is submitted please.
Addl. Dy. Comm. of Police
Hq & Sec. Ludhiana.
2.1. The application was decided by learned Magistrate vide order
dated 24.12.2020, Annexure P-3, holding that no ground was made out to
direct the concerned SHO or the Commissioner of Police, Ludhiana, to
conduct investigation of the case after lodging of FIR, but the application
CRM-M-50284-2023 4
was treated as a criminal complaint in the interests of justice. The operative
paragraph of the order reads as under:
2. Consideration heard & report from the concerned police
official i.e. from the office of Additional Deputy Commissioner
of Police. Head Quarter & Secretary, Ludhiana No. 1392 dated
22.12.2020 perused, as per which, the applicant Ms. G… has
already filed a complaint bearing No.1921027 dated 16.11.2020
to the office of Commissioner of Police, Ludhiana, which was
entrusted to Ms. Kanwardeep Kaur, IPS, JCP Ludhiana (Rural)
for enquiry & take necessary action as per law & the enquiry is
still going in the said matter for taking the action against the
responsible & Ms. G… has also approached to the Hon'ble
Punjab & Haryana High Court, Chandigarh by way of filing a
writ petition No.CRM-M-39189 of 2020. The contents of the
application has also been perused & I have also perused the law
so passed by the Hon'ble Supreme Court of India & Hon'ble
High Courts of India. The only contention of the applicant side
is that the police is not taking necessary action against the
accused/respondents No.1 to 7 as the accused No.1 Simarjeet
Singh & his brother namely Balwinder Singh are sitting MLA,
Punjab. However, this court is of the considered view that since
matter is under consideration before the police for taking the
action against the accused as per law & this fact has not been
denied. Further nothing is on the record which can prima facie
suggest that the police has become biased to take the action
against the accused, so, no ground is made out to direct the
concerned SHO of Police Station Shimlapuri or to the
respondent No.9 i.e. Commissioner of Police, Ludhiana to
conduct the investigation of the case after lodging FIR, but in
the interest of justice, this application is treated as complaint &
same is fixed for 21.01.2021 for preliminary evidence of the
complainant.
CRM-M-50284-2023 5
2.2. The aforesaid order was set aside by learned Additional
Sessions Judge, Ludhiana, accepting the revision petition filed by the
complainant ‘G’, vide order dated 07.06.2021, and the matter was remanded
to the Magistrate to decide it afresh in accordance with law. Thereupon, vide
order dated 07.07.2021, learned Magistrate considered the application afresh
and directed the SHO concerned to register a criminal case treating the
complaint/application as FIR and investigate the same. Pursuant thereto, the
FIR in question bearing no.180, dated 10.07.2021, Annexure P-4, was
registered against the petitioner and six others. After completion of
investigation, final report/challan under Section 173(2) Cr.P.C. as well as
supplementary report/challan under Section 173(8) Cr.P.C. were filed by the
police on 10.11.2021 and 25.09.2022, respectively.
2.3. As per the petitioner, vital documents were not made part of
these two challans filed in the case. He had to move an application, dated
05.04.2023, seeking a direction to the prosecution to supply a copy of
statement of PW-Kamalpreet Singh and inquiry report/noting of
Ms. Ashwani Gutyal, IPS, the then ADCP, Ludhiana, along with statements
of witnesses recorded by her, and the other evidence collected. A reply was
filed by the prosecution through SHO, PS Division No.6, Ludhiana, dated
06.05.2023, Annexure P-8, praying for dismissal of the application. It was
admitted that the said statement of PW-Kamalpreet Singh was recorded by
the Investigating Officer, but not during the course of investigation. Hence,
there was no need to furnish its copy. The relevant paragraphs of reply to the
application read as under:
CRM-M-50284-2023 6
REPLY ON MERITS:-
1. That the contents of para no.1 of the application are admitted
only to the extent that Challans u/s 173 (2) and 173(8) Cr.P.C.
have already been presented against the applicant/accused but
rest of the contents are incorrect. It is incorrect that during the
investigation of the case, statement of PW Kamalpreet Singh
was recorded by the Investigating Officer as alleged. In fact the
said statement was not recorded during the investigation of the
present case by the Investigating Officer, rather the same was
recorded during the earlier enquiry proceedings but the same is
not a part of the investigation of the present case nor the same is
part of the Challan. As mentioned above, the prosecutrix had
moved an Application u/s 156(3) Cr.P.C. before the Ld.
Magistrate on which the Court of Sh. Harsimranjit Singh, the
then ACJM, Ludhiana ordered to lodge the FIR against the
applicant and others. However the applicant can plead the same
in his defence at the appropriate stage of trial or can obtain the
same through RTI.
2.
That the contents of para no.2 of the application are admitted
only to the extent that Ms. Ashwani Gutyal, IPS, the then
ADCP, Ludhiana had conducted the enquiry but the said
enquiry was not joined by the applicant nor the said enquiry is
part of the investigation or the Challan.
2.4. The application was heard by learned Additional Sessions Judge
and dismissed vide order dated 20.05.2023, Annexure P-10, on the ground
that as the investigating/prosecuting agency had not relied upon any
statement of Kamalpreet Singh and inquiry report of Ms. Ashwani Gutyal,
IPS, the then ADCP, Ludhiana, resultantly the accused could not demand the
said documents. The aforesaid order was challenged by the petitioner before
this Court by filing CRM-M-32500-2023, which was partly allowed vide
order dated 09.08.2023, Annexure P-11, by setting aside the order passed by
CRM-M-50284-2023 7
the trial Court and remanding the matter for fresh decision. The operative
part of the order reads as under:
13. Keeping in view the above said facts and circumstances
the present petition is partly allowed and the order dated
20.05.2023 (Annexure P-6) is set aside and the trial Court is
directed to decide the matter afresh keeping in view the law laid
down by the Hon’ble Supreme Court in the case of “In Re: To
issue Certain Guidelines Regarding Inadequacies and
Deficiencies in Criminal Trials” (Supra) and also the amended
Rule framed by the High Court which has been reproduced in
para 11 of the present order. The trial Court would decide the
matter afresh as expeditiously as possible preferably within a
period of two months from 11.08.2023, which is stated to be the
next date of hearing.
2.5. At the time of fresh consideration by the trial Court, the State
filed a report dated 14.09.2023, Annexure P-12, to the effect that there were
no documents/statements which the Government had not relied upon, and
the documents demanded could not be termed as ‘un-relied documents’. The
relevant part of the report is as under:
In compliance of the above order, the
documents/statements recorded during investigation which are
part of the investigation submitted in court u/s 173 Cr.P.C. and
173(8) Cr.P.C. is produced as relied upon documents. During
investigation, there is no documents/statements which the Govt.
does not rely upon and are unrelied documents. A separate list
of the documents/statements which are part of the investigation
are produced as Ann. A.
The trial Court heard the matter and again dismissed the application vide the
impugned order dated 25.09.2023, by holding as under:
… In the present case, the documents sought for are not in the
list of relied or un-relied documents and are not collected during
CRM-M-50284-2023 8
investigation. Even in cases of vigilance under the Prevention of
Corruption Act, the preliminary enquiry sometimes is conducted
and the documents collected during the said inquiry are not part
of the investigation. So, keeping in view the said circumstances
when as per the prosecution, the documents sought are not part
of investigation and do not find mention in the list of relied or
un-relied documents and are much prior to registration of FIR
and part of preliminary enquiry and complaint against enquiry
officer is pending in the Court, the amended rules of the
Hon’ble High Court and the directions of the Hon’ble Supreme
Court in case In Re: To issue Certain Guidelines Regarding
Inadequacies and Deficiencies in Criminal Trials and other case
law are not applicable. Therefore, the applicant is not entitled to
demand copies of said documents. Hence, the application is
without any merit. Therefore the same is dismissed.
This order is under challenge in the instant petition.
3. In this factual background, learned senior counsel for the
petitioner contended that the impugned order passed by the trial Court is
contrary to the law laid down in Criminal Trials Guidelines Regarding
Inadequacies and Deficiencies, In Re v. State of Andhra Pradesh and others,
(2021) 10 SCC 598. The statements and documents asked for by the
petitioner are very much a part of the investigation, and their copies are
required to be furnished to him. Investigation of the case does not begin with
registration of the FIR, and includes all the proceedings under the Code for
collection of evidence conducted by a police officer. He has also relied upon
the Supreme Court judgment in Sarla Gupta and another v. Directorate of
Enforcement, (2025) 7 SCC 626, to contend that the petitioner is entitled to
receive copies of all the records and documents with the prosecution, to
protect his right to fair trial.
CRM-M-50284-2023 9
4. Per contra, learned counsel for the State and the complainant
contend that in terms of law laid down in Criminal Trials Guidelines case
(supra), the petitioner is entitled only to get copies of the documents relied
or not relied upon by the Investigating Officer in the list of statements,
documents, and material objects seized. However, the statements and
documents sought for by him are neither the statements or documents relied
upon, nor the ones not relied upon by the investigating agency; accordingly,
these are not required to be furnished to him. Further, the documents
demanded by him cannot be termed a part of the investigation, which
commences only with registration of the FIR. Anything collected or looked
into by the investigating agency prior to lodging of the FIR does not form
part of the investigation and, consequently, cannot be asked for by the
accused. Still further, even as per Rule 6 of the Punjab and Haryana High
Court Rules and Orders, Volume-III, statements, documents, material objects
and exhibits seized during investigation and relied upon by the Investigating
Officer are required to be specified in the list. The explanation to the Rule is
to be read with Rule 6 itself, and a conjoint reading would show that only
the statements under Sections 161 and 164 Cr.P.C. and the list of documents
and exhibits collected during the investigation, are to be furnished to the
accused. Since the statements and documents demanded by the petitioner are
not statements of the kind, nor have the same been collected during
investigation, these are not required to be furnished.
5. Submissions made by learned counsel for the parties have been
considered.
6. As apparent on record, pursuant to an order passed by learned
CJM on an application under Section 156(3) Cr.P.C. filed by the complainant
CRM-M-50284-2023 10
for registration of FIR against the petitioner and six other accused for
commission of offences under Sections 376, 354, 354-A, 506 and 120-B
IPC, a status report dated 22.12.2020 was filed before the Court by the
ADCP, Ludhiana, after conducting preliminary inquiry which had been
necessitated, as recorded in the report itself, because the complaint of
alleged rape had been made after considerable delay. During enquiry it came
to notice that the complainant had earlier given a complaint dated
05.10.2020 against one Sukhchain Singh [accused no.5 in the application
filed under Section 156(3) Cr.P.C.]. Both the parties had been called and
their statements were recorded; the documents and other evidence which
came to notice during inquiry were verified. The complaint was
filed/consigned to records after the parties compromised the matter. The
report also recorded that the preliminary inquiry remained inconclusive.
Finally, the FIR in question bearing no.180, dated 10.07.2021, was lodged
pursuant to order dated 07.07.2021 passed by learned Magistrate on the
complainant’s application under Section 156(3) Cr.P.C.; investigation
pursuant whereof has been completed and the final as well as supplementary
reports have been presented. Thereafter, the petitioner moved an application,
dated 05.04.2023, seeking statements and documents forming part of the
preliminary inquiry report mentioned in the status report, dated 22.12.2020,
which has been declined vide impugned order dated 25.09.2023 passed by
the trial Court. And the reason is that the documents sought are not part of
the investigation, nor do the same find mention in the list of relied or not
relied documents; these have been created prior to registration of the FIR as
a part of preliminary inquiry.
CRM-M-50284-2023 11
7. Thus, the first question arising for consideration is, whether
preliminary inquiry is a proceeding within the scope of investigation under
the Code of Criminal Procedure? ‘Investigation’ has been defined under
Section 2(h) Cr.P.C. as under:
2. Definitions.—In this Code, unless the context otherwise
requires,—
(a) to (g) xxx xxx
(h) “investigation” includes all the proceedings under this
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf;
Apparently, investigation of a case, as defined under Section 2(h) Cr.P.C.,
includes all the proceedings under the Code for collection of evidence
conducted by a police officer. The preliminary inquiry in question was
carried out after an order by the CJM on the complainant’s application under
Section 156(3) Cr.P.C. The purpose was to ascertain the veracity of
allegations levelled against the petitioner and other accused, which could
only have been by way of collection of material/evidence to establish the
facts alleged. Hence, the inquiry was a proceeding under the Code for
collection of evidence. Further, there is no reason for this Court to give a
truncated meaning to explicit words in the provision, and exclude an inquiry
from its purview only because it has been conducted prior to registration of
FIR. Conversely, there cannot be any addition to the phrase either. It reads,
investigation ‘includes all the proceedings under this Code’, this cannot be
read to mean - ‘includes all the proceedings under this Code after lodging of
the FIR’; that would be adding words to the provision giving it a different
meaning altogether which is impermissible. “The golden rule [of
CRM-M-50284-2023 12
interpretation] is that the words of a statute must prima facie be given their
ordinary meaning. It is yet another rule of construction that when the words
of the statute are clear, plain and unambiguous, then the courts are bound to
give effect to that meaning, irrespective of the consequences.” [refer
Gurudevdatta Vksss Maryadit and others v. State of Maharashtra and
others, (2001) 4 SCC 534, p.553] Also, it is not the case that there is an
absolute restrain on inquiry or collection of material/evidence prior to
lodging of FIR; it is permissible depending upon facts and circumstances of
a case, as laid down in Lalita Kumari v. Government of Uttar Pradesh and
others, (2014) 2 SCC 1. The Court held:
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154
of the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is permissible in
such a situation.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to ascertain whether
cognizable offence is disclosed or not.
120.3. to 120.5. xxx xxx
120.6. As to what type and in which cases preliminary inquiry
is to be conducted will depend on the facts and circumstances of
each case. The category of cases in which preliminary inquiry
may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months' delay in
CRM-M-50284-2023 13
reporting the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
Apparently, one of the categories is of cases where there is more than three
months’ delay in reporting the matter, and the instant case falls thereunder
since the complaint alleging rape on 04.08.2020 has been filed on
03.12.2020. Accordingly, the first question posed is answered in the
affirmative.
8. The second question arising for consideration is, whether the
statements, documents and material objects collected by the police during
the preliminary inquiry, which are neither in the form of statement(s) of
witnesses under Section(s) 161 and 164 Cr.P.C., nor have the same been
recorded after lodging of the FIR, are required to be included in the list of
statements, documents, material objects and exhibits not relied upon by the
Investigating Officer which is to be furnished to the accused/petitioner?
8.1. The right to get a list of documents not relied upon by the
Investigating Officer emanates from the judgment dated 20.04.2021
rendered in Criminal Trials Guidelines case (supra), holding as under:
21. The suo motu proceeding is disposed of in terms of the
above directions.
DRAFT CRIMINAL RULES ON PRACTICE, 2021
CHAPTER I : INVESTIGATION
1. to 3. xxx xxx
4. Supply of documents under Sections 173, 207 and 208
CrPC.—(i) Every accused shall be supplied with statements of
witness recorded under Sections 161 and 164 CrPC. and a list of
documents, material objects and exhibits seized during
CRM-M-50284-2023 14
investigation and relied upon by the Investigating Officer (IO)
in accordance with Sections 207 and 208 CrPC.
Explanation: The list of statements, documents, material objects
and exhibits shall specify statements, documents, material
objects and exhibits that are not relied upon by the investigating
officer.
In line therewith, Rule 6 of the Punjab and Haryana High Court Rules and
Orders, Volume III, Chapter-I, Part-D, has also been amended, which
provides as under:
(c) Procedure in the trial of warrant cases
instituted on Police Report
6. Warrant case on Police report - Police to furnish
copies to accused before the trial commences:- In a warrant-
case (Chapter XIX of the Code of Criminal Procedure, 1973)
the procedure would now depend on whether the case has been
instituted on a police report or otherwise. Section 238 to 243 of
Code of Criminal Procedure, 1973 govern the procedure in
warrant cases instituted on police reports. When the accused
appears or is brought before the magistrate, the magistrate
should, at the commencement of the trial, satisfy himself that he
has complied with the provisions of Section 207 Cr.P.C. Further,
every accused should be supplied with statements of witness
recorded under Sections 161 and 164 Cr.P.C. and a list of
documents, material objects and exhibits seized during
investigation and relied upon by the Investigating Officer in
accordance with Sections 207 and 208 Cr.P.C.
Explanation: The list of statements, documents, material objects
and exhibits shall specify statements, documents, material
objects and exhibits that are not relied upon by the Investigating
Officer.
8.2. The directions issued by the Supreme Court in the judgment
aforementioned are to plug deficiencies in the course of criminal trials, to
CRM-M-50284-2023 15
ensure fairness and protect the interests of the accused. The purpose of
providing list of statements, documents and material objects not relied upon
by the Investigating Officer, is to make certain that the accused is able to
seek appropriate orders from the trial Court later for production of such
documents and material if considered relevant by him/her. In case the
Investigating Officer is permitted to exclude the documents - seized during
investigation but not made part of the final report - from the list of
statements and documents not relied upon by him, the very purpose of
issuing the directions and framing the aforementioned Rule 6 in terms
therewith, gets defeated. It is in the interest of fair trial that all the
documents, whether relied or not relied upon by the Investigating Officer,
should be made known to the accused to enable him/her to access the same
as and when required during trial. Giving any discretion to the officer to
include or not to include the documents seized during investigation in the list
of statements and material not relied upon, adversely affects the right to fair
trial granted to the accused under the Constitution. The exclusion of a
document would keep the accused in dark about an aspect of investigation,
and that is why no such discretion is contemplated or vested in the officer
either under the directions or the Rule. Further, the objection by the
respondents that the documents being asked for have not been collected
during investigation of the case, has already been rejected as per the
discussion above. Once these documents/material have been held to be a part
of the investigation despite having been collected prior to lodging of the
FIR, there is no reason to exclude the same from the list; such an omission is
detrimental to the rights of the accused/petitioner.
CRM-M-50284-2023 16
8.3. The law regarding the right of the accused has been reiterated in
Sarla Gupta case (supra), holding as under:
68. Hence, some of our important conclusions are as under:
68.1. When records, instruments or documents of title of the
property are seized along with the property under Section 17
and 18 of the PMLA, the accused from whom the same are
seized is entitled to true copies thereof;
68.2. Once cognizance is taken on the basis of a complaint
under Section 44(1)(b) of the PMLA, the learned Special Judge
must direct that along with the process, a copy of the complaint
and the following documents be provided to the accused:
(i) Statements recorded by the learned Special Judge of
the complainant and the witnesses, if any, before taking
cognizance;
(ii) The documents including the copies of the statements
under Section 50 of the PMLA produced before the
Special Court, along with the complaint, and the
documents produced subsequently by the ED till the date
of taking cognizance; and
(iii) Copies of the supplementary complaints and the
documents, if any, produced with supplementary
complaints.
68.3. We hold that a copy of the list of statements, documents,
material objects and exhibits that are not relied upon by the
investigating officer must also be furnished to the accused. As
held by this Court, the object is to ensure that the accused has
knowledge of the documents, objects, etc. in the custody of the
investigating officer which are not relied upon so that at the
appropriate stage, the accused can apply by invoking the
provisions of Section 91 CrPC (Section 94 BNSS) for providing
copies of the documents which are not relied upon by the
prosecution.
CRM-M-50284-2023 17
68.4. At the time of hearing for framing of charge, reliance can
be placed only on the documents forming part of the
chargesheet. In case of the PMLA, at the time of framing
charge, reliance can be placed only on those documents which
are produced along with the complaint or supplementary
complaints. Though the accused will be entitled to a list of
documents, objects, exhibits, etc. that are not relied upon by the
ED at the stage of framing of charge, in ordinary course, the
accused is not entitled to seek copies of the said documents at
the stage of framing of charge.
68.5. At the stage of entering upon defence, an accused can
apply for the issue of process for the production of any
document or thing in accordance with Section 233(3) CrPC
[Section 256(3) BNSS]. At this stage, he can also apply for the
production of a document or a thing that is in the custody of the
prosecution but has not been produced. A fair trial is a part of
the right guaranteed to an accused under Article 21 of the
Constitution. The right to a fair trial of the accused includes the
right to defend. The right to defend consists of the right to lead
the defence evidence by examining the witnesses and producing
the documents. Therefore, the accused is entitled to exercise his
right at the stage of entering upon defence by compelling the
prosecution or a third party to produce a document or a thing in
their possession or custody. The Court can decline the request of
the accused for issuing process for the production of documents
only on the limited grounds set out in sub-section (3) of section
233 CrPC.
68.6 When at the stage of defence evidence of the accused,
documents are produced on the prayer of the accused and the
accused desires to cross-examine any of the prosecution
witnesses based on the said documents, it is always open for the
accused to apply under Section 311 CrPC (Section 348 BNSS)
to recall a prosecution witness already examined for further
cross-examination. The reason is that the right to effectively
CRM-M-50284-2023 18
cross-examine the prosecution witnesses is also a part of the
right to have a fair trial. The accused can exercise this right
even if evidence of both sides is closed.
8.4. Accordingly, it has been reiterated by the Supreme Court that
the material and documents which have been obtained by the prosecution
and have a bearing on the case in its opinion, should be disclosed to the
accused in the interest of justice, fair investigation and trial. Also, for the
same purpose, the documents obtained during investigation but not relied
upon by the Investigating Officer should also be disclosed in the list of
documents to be furnished to the accused. This has been considered
necessary to give him a chance of fair defence and ensure that his interests
as that of the administration of criminal justice are not adversely affected or
prejudiced in any manner. Therefore, in the instant case the Investigating
Officer was required to include the statements, documents and other material
collected/seized during the preliminary inquiry, mentioned in its report dated
22.12.2020, in the list of documents not relied upon, and furnish the same to
the petitioner. The second question posed is accordingly answered in the
affirmative.
9. In view of the discussion, petition is allowed. The impugned
order, dated 25.09.2023, is set aside directing the respondent State to
handover the list of documents/material demanded by the petitioner vide
application dated 05.04.2023, within two weeks of receiving a certified copy
of this judgment.
(TRIBHUVAN DAHIYA)
JUDGE
07.07.2026
Maninder
Whether speaking/reasoned : Yes
Whether reportable : Yes
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