SUPDT. AND REMEMBRANCER OF LEGAL VS VIMLA DASSI AND ORS.

SUPDT. AND REMEMBRANCER OF LEGAL VS VIMLA DASSI AND ORS. 

FACTS OF THE CASE

The first respondent, in this case, filed a complaint against the appellant and other respondents under Sections 173, 173(4), 252, 190(1)(a), 190(1)(b), 251(A), 200, 204(1)(A), 204(1)(B), 156 of Code of Criminal Procedure, 1973. 

These sections 200, 204 (1A), and 204 (1B) prescribe the mode of taking cognizance based on complaints and the circumstances under which processes will issue. It is pointed but that in a complaint case, the accused is entitled only to a copy of the complaint and a list of the prosecution witnesses and nothing more.  It was urged has created a right in favor of the accused to be furnished with these copies and not only that, it has also created a liability for the in charge of the police station to furnish those copies. It is contended in this connection that Section 251(A) or Section 207(A) of the Code of Criminal Procedure has created no right in the accused. These sections have only created a liability for the magistrate concerned to satisfy himself that copies have been supplied and, if they have not been supplied, to see that they are supplied before the trial commences.

The police report that was submitted after the Police investigation had two distinct benefits under this:

(1) it has simplified procedure for the exercise by an accused of his statutory right under Section 145 of the Evidence Act and Section 162 of the Code of Criminal Procedure, and 

(2) a simple benefit arising out of prior knowledge of all the evidence that would appear against him at the trial.

 A failure to supply copies of documents in this case such as these would mean a virtual denial of the above right of the accused and if not a denial, at least a clog on that right which would be difficult to set around and which would also mean a denial of prior knowledge of the evidence that might be used against the accused at the trial. The right of the accused to get copies of documents under Sub-section (4) of Section 173 under that legal fiction must be held to have arisen. The police officer has not supplied copies of those documents but the court must see that the copies are supplied.

ISSUES

• Whether cognizance is taken based on a complaint under Section 190(1)(a) of the Code of Criminal Procedure, 1973.
• Whether the magistrate can take cognizance of that police report or not is not the issue.

ARGUMENTS 

The learned advocates appearing for the state in all these cases have argued about when cognizance was taken on a complaint and the procedure for trial of the case which was according to the provisions of Section 252 of the Code, the law does not enjoin the prosecution the duty of furnishing copies of any document to the accused. The West Bengal referred in particular to an Allahabad decision in Avinash Kumar v. State, 1963 (2) Criminal Law Journal No. 706 in support of his argument that the accused in a case started otherwise than on a police report has no right to ask for copies of any documents as referred under Section 173 of the Code. This changed situation must be considered in deciding whether and how far the benefit is afforded to the accused under section 173(4). It should be denied to them when the change leads to a change in the matter of taking cognizance and in the procedure for the trial.

It was contended that the liability to serve copies of documents arises under the procedure which was written under Section 251(A) of the Code which relates to trials of cases instituted on police reports. As the Code of Criminal Procedure has divided the cases for a trial into two classes: 

a) one started on a police report 

b) other started on a police report and separate procedures have been prescribed for trials

JUDGEMENT

The accused in all of the cases applied for copies of documents which were referred in Section 173 of the Code to be furnished to them. The learned presidency magistrates directed the prosecution to furnish the copies as provided for. It is against these orders directing copies to be furnished that the Superintendent and Remembrancer of Legal Affairs, West Bengal, moved this Court and obtained the relevant Rules The special judges refused the prayer for granting the copies and the accused person moved the court and obtained the rules against those orders.

The accused should be entitled to the benefit of Section 173(4) of the Code of Criminal Procedure in the shape of copies of documents referred to in the section being made available to him. It was pointed out by him that there was a similar situation was said to arise in a case where the police started an investigation on the materials collected as a piece of evidence in the course of the investigation. Then, another authority filed a complaint on which cognizance is taken by the magistrate and the trial is commenced by the provisions of Section 252 of the Code. Thereby depriving the accused of his right to get copies under Section 173(4) of the Code. Mr. Dutta in this connection further contends that the right to get copies is available to an accused even in a summons case that has been investigated by the police and which is not even triable in court.

The expression “Magistrate empowered to take cognizance of the offense” in Clause (a) of Sub-section (1) of Section 173 has to be considered along with the provision in Section 156 of the Code. Under that section, any police officer who is in charge of a police station may investigate any cognizable case in which a court having jurisdiction over the local area within the limits of such station would have the power to enquire into it or even can do a trial. The power to investigate is limited to a police officer of the local area of a magistrate having jurisdiction in the matter of inquiry or trial and when in cl. (a) referred to above the police officer is required to forward a report to a magistrate empowered to take cognizance of the offense, it must mean a magistrate empowered under Section 190(1)(b) and having jurisdiction over the local area within which the police-station concerned is situated.

This is a privilege and a right that the amendment of the Code in 1955 has given to the accused. That privilege and the right cannot be taken away by any action of the police officer concerned that is not complying with the requirements of Section 173. The Criminal Procedure Code never contemplates that a case started on a complaint will be preceded by an investigation. The prosecution was not permitted to take advantage of the investigation and at the same time deny to the accused because that would frustrate the intention of the Legislature in the matter.

It was held that, if copies are not filed, the accused in a summons case can always bring the matter to the magistrate’s notice and then the magistrate must see that he gets the copies. The orders of the learned judges in these two cases are set aside and the learned judges are directed to give suitable directions to the prosecution to the supply of the copies which were referred under section 173 to the accused persons in these cases.

REFERENCES

• https://indiankanoon.org/doc/632279/

WRITTEN BY ABHIPRA AGARWAL AN INTERN UNDER LEGAL VIDHIYA.

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