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State of Rajasthan Vs. Moti Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision Nos. 32, 314, 319 and 322 of 1973
Judge
Reported in1975(8)WLN137
AppellantState of Rajasthan
RespondentMoti Singh and ors.
Cases ReferredSupdt. & Remembrancer Legal Affairs v. Vimla Dassi (supra).
Excerpt:
.....of a part of its proceedings on the application filed by the prosecution in a case under the act.;criminal procedure code - section 173--case initiated on complaint though police made investigation but did not challan accused--whether accused has right to the grant of copies of documents.;the non-petitioners have a right to be furnished with copies of documents in these cases also wherein cognizance is taken on the basis of a complaint, but where investigation has been held by the police under chaptar xiv of the code for the purpose of collecting evidence for the complaint that is requited to be made subsequently. the wholesale refusal on the part of the prosecution to supply copies of the statements of all the documents, on which it relies including the statements of witnesses..........on complaints which were made after police investigation under chapter xiv of the old code of criminal procedure. after investigations no charges sheets under section 173 cr.p.c. were filed, because the condition required to take cognizance of an offence under the act is that there must be a complaint made by order of, or under authority from the appropriate government, or some officer empowered by such government, in this behalf.3. the accused in all these four capes claimed copies of documents referred to in section 173. cr.p.c. as cr.p.c. as of rifht and the sessions judge trying the cases directed the prosecution to furnish the copies of all the documents to the accused persons as prayed for. aggrieved by these orders directing copies to be furnished to accused, the state has.....
Judgment:

K.D. Sharma, J.

1. These four criminal revision-petitions Nos. 314 of 1973, 319 of 1973, 320 of 1973 and 322 of 1973, are taken up for hearing and decision together as a common question of law is involved in all of them and are disposed of by one judgment.

2. All these applications in revision arise nut of separate trials being held in each case in the Court of the Sessions Judge, Jaipur City, Jaipur. The trials are in respect of offence punishable under the Official Secrets Act, 1923, hereinafter referred to as the Act. It appears that in each of the for case cognizance was taken on complaints which were made after police investigation under Chapter XIV of the old Code of Criminal Procedure. After investigations no charges sheets under Section 173 Cr.P.C. were filed, because the condition required to take cognizance of an offence under the Act is that there must be a complaint made by order of, or under authority from the appropriate Government, or some officer empowered by such Government, in this behalf.

3. The accused in all these four capes claimed copies of documents referred to in Section 173. Cr.P.C. As Cr.P.C. as of rifht and the Sessions Judge trying the cases directed the prosecution to furnish the copies of all the documents to the accused persons as prayed for. Aggrieved by these orders directing copies to be furnished to accused, the State has moved this Court this Court by way of these four applications in revision.

4. I Have heard at length Mr. P.N. Daft learned Counsel for the non-petitioner in Revision Petition No. 314 of 1973, Moti Singh and others and Dr. B.K. Tiwari, Public Prosecutor appearing on behalf of the State. The non-petitioners in the other three cases have not appeared in this Court in spite of the fact that notices of date, time and place at which the revision petitions will be heard were served on them.

5. The common question hat arises for determination in all these criminal revisions is whether the accused persons have a right to the grant of copies of the documents referred to in Section 173 of the old Criminal Procedure Code even in cases initiated en complaints but in which there were previous investigations by the police under Chapter XIV of the Code and the accused bad not been challenged Dr. S.K. Tiwari appearing on behalf of the State has strenuously urged before me that the accused persons are not entitled to copies of statements recorded during the course of investigation in cases which ate not started on a police report and that the accused being tried by the court on the basis of complaint, no tight does accrue to them to get copies of all the documents relied upon by the prosecution. Dr. Tiwari has relied upon an authority of the Calcutta High Court Ramendra Singh v. Mohit Choudhary : AIR1969Cal535 , in support of his above proposition wherein the following observations have been made:

The prosecution is under the Official Secrets Act and it is unlikely that the Legislature would provide for a camera trial and at the same time provide for giving copies of all documents under Section 173 to the accused. This strikes at the root of secrecy and goes counter to the provisions of trial in camera and this is why the Legislature purposely used the word 'complaint' and provided for a special procedure regarding cognizance. This view finds support from the provisions of Section 14 of the Act providing for camera trial.

The Official Secrets Act provides for a special procedure of complaint and if it was upon a complaint by a person authorised under the Act, cognizance was taken under Section 190(1)(a) and not under Section 180(1)(b). The procedure for trial would, therefore, be under Section 252 of the Code of Criminal Procedure and not under Section 251A. In respect of prosecution under Section 262 of the Code of Criminal Procedure there is no compulsory provision for giving copies of documents referred to under Section 173 end the opposite parties are not, therefore, entitled to copies.

He has contended on the strength of this authority that the non-petitioners cannot ask for copses of ail the documents as referred to in Section 173, Cr.P.C.

6. Mr. P.N. Datt learned Counsel for the non petitioners in Criminal Revision Petition No. 314 of 1973, on the other hand, contended that the non-petitioners have a tight to the grant of copies in cases 10 which cognizance has been taken on she basis of a complaint but in which there was previous investigation by the police under Chapter XIV of the Code. He referred in particular to the following rulings in support of his above contention : Chittaranjan Das v. State or West Bengal A.I.R. 1953 Cal. 191, Supdt. & Remembrancer, Legal Affairs v. Vimla Dassi : AIR1968Cal540 . Noorkhan v. State of Rajasthan : 1964CriLJ167 , Purshottam v. State of Kutch : AIR1954SC700 , Pravin Chandra v. State of A.P. : 1965CriLJ250 , In re Veerappa : AIR1959Mad405 . and Naresh v. State of Maharashtra 0044/1966 : [1966]3SCR744 .

7. I have perused to authorities cited above and considered the rival contentions It will not be out of place to minion that in all the four cases complaints were filed under Section 3 read with Section 9 of the Act in the Court of the District Magistrate. Jaipur by the Deputy Superintendent of Police who was authorised by the State Government to do so. The District Magistrate, Jaipur took cognizance upon the complaints under Section 190(1)(a) of the Criminal Procedure Code and committed the non-petitioners to the Court of Sessions Judge, Jaipur City, Jaipur, for trial under Sub-section (2) of Section 13 of the Act. The learned Sessions Judge directed the prosecution to furnish copies of all the documents relied upon by the prosecution, to the non-petitioner on the basis of the observations of this Court made by Hon'ble Gattani J. as he then was, in SB Criminal Miscellaneous Bail Application No. 847 of 1972 State v. Moti Singh. The observations made in the last para while canceling the bail of Moti Singh are as follows:

It was urged by Mr. Dutta counsel for the respondent that documents under Section 173, Cr.P.C. even have nut yet been supplied to him It that bf so the Session Judge will see that it is done as soon as possible.

In view of the said order of this Court, it cannot be said that the Sessions Judge, Jaipur City, Jaipur, committed an error in directing the prosecution in each case to furnish copies of the statements and documents, on which it relied, to the non-petitioners. What is contended before me by Dr. S.K. Tiwari is that special procedure is provided in the Act itself for trial of persons accused of offences under the Act and so the accused cannot claim copies of documents referred to in Section 173 of the Code of Criminal Procedure as of right. In support of his above contention, be invited my attention to Section 14 of the Act, which provides that upon an application made by the prosecution in the course of a trial for an offence under this Act, the Court can hold trials in camera or a part of trial in camera or prohibit extensive publication of a part of its proceedings, if in its opinion the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the Safety of the State. According to him, to view of these provisions if the prosecution is directed to tarnish conies of secret documents to the accused persons in such cases, there is every likelihood that the disclosure of secrets may adversely effect the security of the State. The above contention his no force, because, no such application has been made by the prosecution to the Sessions Judge for holding trial or part of a trial in camera or to prohibit excessive publication of a part of its proceeding'. The prosecution cannot be permitted to deny to toe accused the benefit of prior knowledge of the evidence that maybe produced against him at the trial merely on the ground that a power has been given to the trial court to hold the trial or part of the trial in camera or to prohibit excessive publication of a part of its proceedings on the application filed by the prosecution in a case under the Act.

8. Another contention put forward by Dr. S.K. Tiwari is that in cases started on a police report only, it is the duty of the court to safety itself that the documents referred to in Section 173, Cr.P.C. have been furnished to the accused and that in cases started of the basis of the complaint toe accused cannot get copies of such document's including copies of statements of witnesses recorded under Section 161(3), Cr.P.C. in the course of police investigation. The above contention also has no substance, because it has been held by this Court in Bakhtawar Singh v. The State 1951 R.L.W. 186 and, that the accused has a right to ask for the copy of statement of a person who has been examined by the police during the course of investigation under Chanter XIV of the Code or Criminal Procedure if that person is produced as a witness for the prosecution at the trial and that it is immaterial in such cases whether the case has started upon the police reporter initiated on a complaint Asimilar has been taken in Dattari Das v. (sic) and The State of M.P. v. Ramdhan and Ors. I.L.R. 1961 M.P. 1050. also in Supdt. & Remembrancer Legal Affairs v. Vimla Dassi (supra).

9. Consequently, I feel inclined to hold that she non petitioners have a right to be furnished with copies of documents of those casts also where in cognizance is taken on the basis of a complaint, but where investigation baa been held by the police under chapter XIV of the Code for the purpose of collecting evidence for the complaint that is required to be made subsequently. But it should be made clear that the right of the accused to get copies of the document relied upon by the prosecution is subject to certain restrictions contained in Sub-section (5) of Section 173 of the old Criminal Procedure Code itself. Sub-section (5) of Section 173, Cr.P.C. provides that if the police officer thinks that the statement recorded by the Investigation Officer under Sub-section (3) of Section 161, Cr.P.C. during the course of investigation is irrelevant to the subject matter of the inquiry or its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall exclude such part from the copy of the statement that may be furnished to the accused, and, in such a case he is required to make a report stating his reasons for excluding such part. Upon such report the Magistrate however, may. if he thinks fit, direct the part so excluded to be furnished to the accused. These provisions contained in Sub-section (5) of Section 173, Cr.P.C. have been introduced in the code of Criminal Procedure to safeguard the public interests.

10. In view of the above discussion, it may be safely held that the wholesale refusal on the part of the prosecution to apply of the statements of all the documents, on which it relies including the statements of witnesses (recorded during investigation), is not justified as it causes prejudice to the accused. It is, however, open to the Investigation Officer, to exclude any part of any statement recorded under Section 161(3), Cr.P.C. from the copy there of to be furnished to the accused and take a report of such exclusion provided he is of opinion that the disclosure there of is inexpedient in the public interest and is not essential in the interests of justice or is not relevant of the subject matter of the inquiry. Upon report of such exclusion, the Court may pass such orders as it thinks fit after perusing the part sought to be excluded.

11. All the four revision petitions Nos. 314 of 1973, 319 of 1973, 320 of 1973 and 322 of 1973 are, therefore, partly accepted and the cases are sent back to the learned Sessions judge, Jaipur City, Jaipur, with a direction to proceed according to law in the light of the observations made above.


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