Relevant evidence admissible irrespective of source – Delhi High Court

In the case of Mr. Arvind Kejriwal & Anr. v. State NCT OF Delhi, (CRL.M.C. 1867/2020), Delhi HC has set aside an order of the trial court, in which the court did not give permission to Delhi cm Kejriwal and Minister Manish Sisodia to have access to some extremely crucial documents without following the procedure under CrPC in the chief secretary assault case. The matter was heard by a single judge bench of Justice Suresh Kumar Kait.

An application under 207 of CrPC was filed regarding supply of certain documents including a copy of the statement of the witness (VK Jain). The trail court set the application aside and said that as claimed by the prosecution about the copy of the statement of the witness cannot be provided and it was not recorded under 161 CrPC on the alleged date in the application.

 A revision application was filed before the trial court but even that was disposed “it was a record of oral examination by the IO and was noted in the case diary, it could not constitute a statement under Section 161”.  It could be used by the court however, as an aid during the trial.

Senior Adv. N. Hariharan, who appeared on behalf of the petitioner, submitted that the impugned order stated that VK Jain was examined and the statement is being withheld to help the case of the prosecution.

It was submitted that“…they are trying to conceal/withheld the crucial part of evidence which is against the principle of ‘Criminal Jurisprudence’ and in violation of the basic principle of natural justice, free and fair trial. A plain reading of Section 207 CrPC makes it amply clear that under this provision the accused is entitled to have right to take the complete copy of the chargesheet and other documents in regarding of the case from the prosecution”.

Furthermore, it was also contended that a joint reading of section 173(5), first proviso of 207 and 173(6), leaves no scope of doubt about the fact that it is the duty of the police officer to forward all the statements mentioned under section 173(5) to the magistrate. The discretion of withholding the evidence with the magistrate.

Senior Adv. Sidharth Luthra, who appeared on behalf of the respondent no.2/complainant, submitted that on 21st February, VK Jain was called for examination but no statement was recorded. Further he contended that it was a typographical error and the fact that was referred by the petitioner was for 22nd sept.

He further argued that “under Section 173(5) and (6) and Section 207, what is to be supplied to an accused are the specified documents and no more. It is what the Prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and which the Prosecution does not choose to rely upon”.

“It was also submitted by Luthra that records of the Case Diary could not be sought due to the bar imposed by Section 172(3). Multiple cases such as State of NCT of Delhi v. Ravi Kant Sharma (2007) and Sunita Devi v. State of Bihar & Anr. (2005) relied upon to buttress this submission. It was further argued that it was not obligatory on part of the police officer to record any statement made to him and he may do so if he feels it necessary.”

Luthra concluded his arguments by citing the 41st Law Commission Report, where they justified the wide discretion which was granted to the police officer to record only those statements, which may aid the prosecution.

The court observed that VK Jain was called on 21st February, and was examined by 21.02.2018 and was examined by the IO which was later on recorded in the case diary. It was recorded in the case diary that the witness was examined in depth and a report was prepared thereafter.

Justice Kait then refers to Section 161 of the Code and the case of Ashutosh Verma v. CBI (2014) to observe that even at the stage of scrutiny of documents unde Section 207, the Court shall supply all the documents to the accused, even if the same is not relied upon by the Prosecution.

“Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused”.

The court was in consonance with Hariharan’s arguments which state that it is the duty of the police officer to forward to all the statements to the magistrate. “It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them.”

The judgement concluded with an observation on the issue of source of document and states that if the evidence is relevant, it is admissible irrespective of how it is obtained. Finding merits in the present plea, the Court set aside the impugned order of the Trial Court.

Court held that “Consequently, the Trial Court is directed to consider the statement dated 21.02.2018 of VK Jain, which is part of ‘Case Diary’ and placed on record by the accused, at the time of passing the order on Charge.”

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