# Prashant Jaiswal v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 3 ILRA 788
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-07
- **Case number:** Application u/s 482 No. 41885 of 2022
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prashant-jaiswal-v-state-of-u-p-anr-opp-parties-49840
- **Pages:** 8

## Headnote

Criminal Law - Criminal Procedure Code,
1973-Sections 173(5), 175(6) & 207Documents submitted by Investigating OfficerAccused entitled to be supplied clone copyExcept where document is voluminous under
Section 207 proviso-Withholding of documents
from
accused-Permissible
only
in
limited
circumstances
like
privacy
concerns
of
victim/witness-Court must balance rights and
conduct
proper
inquiry
before
denying
documents.
Criminal Law - Criminal Procedure Code,
1973-Section 327-In-camera trial-Does not
prohibit supplying documents to accused for
defending himself-Court can restrain publication
outside
court
proceedings-Supplying
documents/material
to
accused-Essential
component of right to fair trial -Order denying
documents-Must examine material, conduct
inquiry, hear parties and pass reasoned order
balancing
concerns-Mere
apprehensions
insufficient to curtail supply of documents-order
set aside.

Application disposed. (E-9)

List of Cases cited:

## Text

788 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of other offence against the
accused at the time of framing of charges.

11. With the aforesaid direction the
application is, accordingly, allowed. There
shall be no order as to costs.
----------
(2023) 3 ILRA 788
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Application u/s 482 No. 41885 of 2022

Prashant Jaiswal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sudarshan Singh, Sri Vinay Kumar

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973-Sections 173(5), 175(6) & 207Documents submitted by Investigating OfficerAccused entitled to be supplied clone copyExcept where document is voluminous under
Section 207 proviso-Withholding of documents
from
accused-Permissible
only
in
limited
circumstances
like
privacy
concerns
of
victim/witness-Court must balance rights and
conduct
proper
inquiry
before
denying
documents.
Criminal Law - Criminal Procedure Code,
1973-Section 327-In-camera trial-Does not
prohibit supplying documents to accused for
defending himself-Court can restrain publication
outside
court
proceedings-Supplying
documents/material
to
accused-Essential
component of right to fair trial -Order denying
documents-Must examine material, conduct
inquiry, hear parties and pass reasoned order
balancing
concerns-Mere
apprehensions
insufficient to curtail supply of documents-order
set aside.

Application disposed. (E-9)

List of Cases cited:

1. P. GopalKrishnan @ Dileep Vs St. of Kerala &
anr., (2020) 9 SCC 161

2. Shamsher Singh Verma Vs St. of Har., (2016)
15 SCC 485

3. Manu Sharma Vs State (2010) 6 SCC 1

4. V.K. Sasikala Vs State, (2012) 9 SCC 771
(Delivered by 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
3 All. Prashant Jaiswal Vs. State of U.P. & Anr.
789
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 such request.

207. Supply to the accused of copy of
police report and other documents.-

In any case where the proceeding has
been instituted on a police report, the
Magistrate shall without delay furnish to
the accused, free of cost, a copy of each of
the following:-

(i)the police report;

(ii)the
first
information
report
recorded under section 154;

(iii) The statements recorded under
sub- section (3) of section 161 of all
persons whom the prosecution proposes to
examine
as
its
witnesses,
excluding
therefrom any part in regard to which a
request for such exclusion has been made
790 INDIAN LAW REPORTS ALLAHABAD SERIES
by the police officer under sub- section (6)
of section 173;

(iv) The confessions and statements, if
any, recorded under section 164;

(v) any other document or relevant
extract thereof forwarded to the Magistrate
with the police report under sub- section
(5) of section 173:

Provided that the Magistrate may,
after perusing any such part of a statement
as is referred to in clause (iii) and
considering the reasons given by the police
officer for the request, direct that a copy of
that part of the statement or of such portion
thereof as the Magistrate thinks proper,
shall be furnished to the accused:

Provided further that if the Magistrate
is satisfied that any document referred to in
clause (v) is voluminous, he shall, instead
of furnishing the accused with a copy
thereof, direct that he will only be allowed
to inspect it either personally or through
pleader in Court."

7. In P. GopalKrishnan @ Dileep
Vs. State of Kerala and Another, (2020) 9
SCC
161
in
the
context
of
material/evidence available on electronic
media, the Supreme Court had observed as
below:-

'' In conclusion, we hold that the
contents of the memory card/pen drive
being electronic record must be regarded as
a document. If the prosecution is relying on
the same, ordinarily, the accused must be
given a cloned copy thereof to enable
him/her to present an effective defence
during the trial. However, in cases
involving issues such as of privacy of the
complainant/witness or his/her identity, the
Court may be justified in providing only
inspection thereof to the accused and
his/her lawyer or expert for presenting
effective defence during the trial. The Court
may issue suitable directions to balance the
interests of both sides"

8. Thus, by way of principle, it has to
be recognized, material/evidence available
on a pen drive/electronic form is a
document. In Shamsher Singh Verma Vs.
State of Haryana, (2016) 15 SCC 485, it
was recognized, a compact disc is a
document. Then, being material referable to
Section 173(5) Cr.P.C. and not Section
173(6) Cr.P.C., it may be supplied to the
accused person as a clone copy of the
original. Also, under Section 207 Cr.P.C.,
the right of the accused to be supplied "any
other document or relevant extract thereof
forwarded to the Magistrate with the police
report under Sub-Section (5) of Section 173
Cr.P.C." may ordinarily be curtailed only if
it is voluminous. In that case the Magistrate
may allow its inspection instead of supply
of a complete copy. The distinction
between Section 173 and Section 207
Cr.P.C. was clarified in Manu Sharma Vs.
State (2010) 6 SCC 1. Therein, it was
observed:

"219. The role and obligation of the
Prosecutor particularly in relation to
disclosure cannot be equated under our law
to that prevalent under the English system
as aforereferred to. But at the same time,
the demand for a fair trial cannot be
ignored.
It
may
be
of
different
consequences where a document which has
been obtained suspiciously, fraudulently or
by causing undue advantage to the accused
during investigation such document could
be denied in the discretion of the
Prosecutor to the accused whether the
prosecution relies or not upon such
documents, however in other cases the
obligation to disclose would be more
certain. As already noticed the provisions
of Section 207 have a material bearing on
3 All. Prashant Jaiswal Vs. State of U.P. & Anr.
791
this subject and make an interesting
reading. This provision not only require or
mandate that the court without delay and
free of cost should furnish to the accused
copies of the police report, first information
report, statements, confessional statements
of the persons recorded under Section 161
whom the prosecution wishes to examine as
witnesses, of course, excluding any part of
a statement or document as contemplated
under Section 173(6) of the Code, any
other document or relevant extract thereof
which has been submitted to the Magistrate
by the police under sub-section (5) of
Section 173. In contradistinction to the
provisions of Section 173, where the
legislature
has
used
the
expression
"documents on which the prosecution
relies" are not used under Section 207 of
the Code. Therefore, the provisions of
Section 207 of the Code will have to be
given liberal and relevant meaning so as to
achieve its object. Not only this, the
documents submitted to the Magistrate
along with the report under Section 173(5)
would deem to include the documents
which have to be sent to the Magistrate
during the course of investigation as per
the requirement of Section 170(2) of the
Code.

220. The right of the accused with
regard to disclosure of documents is a
limited right but is codified and is the very
foundation of a fair investigation and trial.
On such matters, the accused cannot claim
an indefeasible legal right to claim every
document of the police file or even the
portions which are permitted to be
excluded from the documents annexed to
the report under Section 173(2) as per
orders of the court. But certain rights of the
accused flow both from the codified law as
well as from equitable concepts of the
constitutional jurisdiction, as substantial
variation to such procedure would frustrate
the very basis of a fair trial. To claim
documents within the purview of scope of
Sections 207, 243 read with the provisions
of Section 173 in its entirety and power of
the court under Section 91 of the Code to
summon documents signifies and provides
precepts which will govern the right of the
accused to claim copies of the statement
and documents which the prosecution has
collected during investigation and upon
which they rely.

221. It will be difficult for the Court to
say that the accused has no right to claim
copies of the documents or request the
Court for production of a document which
is part of the general diary subject to
satisfying the basic ingredients of law
stated therein. A document which has been
obtained bona fide and has bearing on the
case of the prosecution and in the opinion
of the Public Prosecutor, the same should
be disclosed to the accused in the interest
of justice and fair investigation and trial
should be furnished to the accused. Then
that document should be disclosed to the
accused giving him chance of fair defence,
particularly
when
non-production
or
disclosure of such a document would affect
administration of criminal justice and the
defence of the accused prejudicially.

222. The concept of disclosure and
duties of the Prosecutor under the English
system cannot, in our opinion, be made
applicable
to
the
Indian
criminal
jurisprudence stricto sensu at this stage.
However, we are of the considered view
that the doctrine of disclosure would have
to
be
given
somewhat
expanded
application. As far as the present case is
concerned, we have already noticed that no
prejudice had been caused to the right of
the accused to fair trial and non-furnishing
of the copy of one of the ballistic reports
had not hampered the ends of justice. Some
shadow of doubt upon veracity of the
792 INDIAN LAW REPORTS ALLAHABAD SERIES
document had also been created by the
prosecution and the prosecution opted not
to rely upon this document. In these
circumstances, the right of the accused to
disclosure has not received any setback in
the facts and circumstances of the case. The
accused even did not raise this issue
seriously before the trial court."

9. Also, in V.K. Sasikala Vs. State,
(2012) 9 SCC 771, as issue arose if at the
stage of Section 313 Cr.P.C. an accused
was entitled to documents not relied by the
prosecution. Even such documents were
permitted to be examined by the defence. It
was then observed:

"13. Without dilating on the said
aspect of the matter what has to be taken
note of now are the provisions of the Code
that deal with a situation/stage after
completion of the investigation of a case. In
this regard the provisions of Section 173(5)
may be specifically noted. The said
provision makes it incumbent on the
investigating agency to forward/transmit to
the
court
concerned
all
documents/statements, etc. on which the
prosecution proposes to rely in the course
of the trial. Section 173(5), however, is
subject to the provisions of Section 173(6)
which confers a power on the investigating
officer to request the court concerned to
exclude any part of the statement or
documents forwarded under Section 173(5)
from the copies to be granted to the
accused.

14. The court having jurisdiction to
deal with the matter, on receipt of the
report and the accompanying documents
under Section 173, is next required to
decide as to whether cognizance of the
offence alleged is to be taken in which
event summons for the appearance of the
accused before the court is to be issued. On
such appearance, under Section 207 CrPC,
the court concerned is required to furnish
to the accused copies of the following
documents:

1. The police report;

2.
The
first
information
report
recorded under Section 154;

3. The statements recorded under subsection (3) of Section 161 of all persons
whom the prosecution proposes to examine
as its witnesses, excluding therefrom any
part in regard to which a request for such
exclusion has been made by the police
officer under sub-section (6) of Section
173;

4. The confessions and statements, if
any, recorded under Section 164;

5. Any other document or relevant
extract thereof forwarded to the Magistrate
with the police report under sub-section (5)
of Section 173.
15. While the first proviso to Section 207
empowers the court to exclude from the
copies to be furnished to the accused such
portions as may be covered by Section
173(6), the second proviso to Section 207
empowers the court to provide to the
accused an inspection of the documents
instead of copies thereof, if, in the opinion
of the court it is not practicable to furnish
to the accused the copies of the documents
because of the voluminous content thereof.
We would like to emphasise, at this stage,
that while referring to the aforesaid
provisions
of
the
Code,
we
have
deliberately used the expression "court"
instead of the expression "Magistrate" as
under various special enactments the
requirement of commitment of a case to a
higher court (Court of Session) by the
Magistrate as mandated by the Code has
been dispensed with and the Special Courts
constituted under a special statute have
been empowered to receive the report of the
investigation along with the relevant
3 All. Prashant Jaiswal Vs. State of U.P. & Anr.
793
documents directly from the investigating
agency and thereafter to take cognizance of
the offence, if so required.
17. Seizure of a large number of documents
in the course of investigation of a criminal
case is a common feature. After completion
of the process of investigation and before
submission of the report to the court under
Section 173 CrPC, a fair amount of
application of mind on the part of the
investigating agency is inbuilt in the Code.
Such application of mind is both with
regard to the specific offence(s) that the
investigating officer may consider to have
been committed by the accused and also the
identity and particulars of the specific
documents and records, seized in the
course of investigation, which supports the
conclusion of the investigating officer with
regard
to
the
offence(s)
allegedly
committed. Though it is only such reports
which support the prosecution case that are
required to be forwarded to the Court
under Section 173(5) in every situation
where some of the seized papers and
documents do not support the prosecution
case and, on the contrary, supports the
accused, a duty is cast on the investigating
officer to evaluate the two sets of
documents and materials collected and, if
required, to exonerate the accused at that
stage itself. However, it is not impossible to
visualise
a
situation
whether
the
investigating officer ignores the part of the
seized documents which favour the accused
and forwards to the court only those
documents which support the prosecution.
If such a situation is pointed by the accused
and such documents have, in fact, been
forwarded to the court would it not be the
duty of the court to make available such
documents to the accused regardless of the
fact whether the same may not have been
marked and exhibited by the prosecution?
What would happen in a situation where
such documents are not forwarded by the
investigating officer to the court is a
question that does not arise in the present
case. What has arisen before us is a
situation where evidently the unmarked and
unexhibited documents of the case that are
being demanded by the accused had been
forwarded to the court under Section
173(5) but are not being relied upon by the
prosecution. Though the prosecution has
tried to cast some cloud on the issue as to
whether the unmarked and unexhibited
documents are a part of the report under
Section 173 CrPC, it is not denied by the
prosecution that the said unmarked and
unexhibited documents are presently in the
custody of the court. Besides, the accused
in her application before the learned trial
court (IA No. 711 of 2012) had furnished
specific details of the said documents and
had correlated the same with reference to
specific seizure lists prepared by the
investigating
agency.
In
such
circumstances, it can be safely assumed
that what has happened in the present case
is
that
along
with
the
report
of
investigation a large number of documents
have been forwarded to the court out of
which the prosecution has relied only on a
part
thereof
leaving
the
remainder
unmarked and unexhibited."

10. Thus, only by way of exception to
the general rule, it may be recognized, the
Court may be justified to allow for a simple
inspection of the documents being relied
upon by the prosecution. Statutorily, those
exception may arise under section 207(iii)
read with section 173(6) Cr.P.C. and section
207(v) read with Section 173(5) Cr.P.C. At
the same time, by virtue of the first proviso
to section 207, the Magistrate retains
discretion to allow any part or portion of
the statement to be furnished to the
accused, in such event. Also, by virtue of
794 INDIAN LAW REPORTS ALLAHABAD SERIES
the second proviso to section 207, the
Magistrate may only allow inspection of
any document (covered by Section 176(5)
of the Cr.P.C.), if it is voluminous.

11. Then, by virtue of the ratio of the
decision of the Supreme Court in P. Gopal
Krishnan (supra), where issues of privacy
of the complainant/witness or his/her
identity may be involved as may require
balancing of interests of both sides, the
Magistrate
may
only
allow
for
an
inspection of a document in place of its
whole copy being supplied.

12. Thus, denial of complete copy of a
document is an exception to the general
rule namely, the accused has a right to be
made available the material. To carve an
exception to the rule, their must exist just
and proper grounds. Those may emanate
either from Section 173(6) Cr.P.C. when the
police officer may have formed an opinion
that disclosure of any statement is either
not relevant or its disclosure is not essential
in the interest of justice or is inexpedient in
the public interest. Yet, by virtue of the first
proviso to Section 207 the opinion and the
reasons (giving rise to it) would remain
subservient to the better wisdom of the
learned Magistrate. At that stage, the
learned Magistrate may, instead of the
entire statement or document, allow for a
part or portion of it to be made over to the
accused. Second, if the document not
covered under Section 173(5) Cr.P.C. is
voluminous, then, for that reason the
learned Magistrate may allow for its extract
to be made over to the accused.

13. Seen in that light, clearly, the
exception carved out by the Supreme Court
in P. Gopal Krishnan (Supra), is referable to
the first proviso to Section 207 Cr.P.C.
being not in the interest of justice or
inexpedient in public interest. However,
that decision to be made by the Magistrate
being discretionary, would have to be
exercised on a judicious application of
mind to the particular/peculiar facts giving
rise to serious concerns about violation of
privacy etc.

14. When the Court seeks to deny an
accused person material gathered during
investigation and proposes to only allow
him an opportunity to peruse the same from
the Court record, the Court is taking a
decision that may, potentially have a
material
being
on
the
fairness
and
completeness of the trial as also its final
outcome. Also, that decision if based on or
inspired by reason to protect the privacy of
another individual must be well reasoned,
both on facts and in law.

15. Therefore, before the Court may
do that, it must itself examine the material
to be sure that the interest to protect the
privacy of a complainant or witness etc.
outweighs
the
requirement
to
make
available to the accused person, the
material being relied against him. In that, it
may
also
speak
to
the
concerned
witness/complainant
and
ascertain
his
views. If necessary, it may entertain formal
objections and reply thereto and pass such
order as may balance the rights and
interests of both sides, without risk of
impairing
the
fairness
of
trial
of
proceedings.

16. In the present case that exercise
does not appear to have been undergone by
the learned court below. It has merely
considered the application moved by the
applicant
and
the
general
concern
expressed by the prosecution. If the Court
had itself examined the material and
thereafter proceeded to pass the order, that
3 All. Sandeep Joshi Vs. State of U.P. & Ors.
795
decision would have been founded on facts
and would have addressed the genuine
concerns of the parties. In that the Court
may also have considered if supply of a
transcript of the conversation or any
portion or part thereof may serve the need
of the defence. Certainly, the volume of the
document is not an issue here as the entire
document would fit on a pen drive.

17. The reasoning of the learned court
below based on Section 327 Cr.P.C. may not
be correct. That provision basically requires
the trial such as this (involving offence under
section 376 IPC), to be conducted in camera.
Sub-section (3) of section 327 Cr.P.C.
prohibits printing or publication of any matter
in relation to such proceeding, except with
leave of the Court. Plainly, that provision
would have no application to the request of the
accused person to be made available copy the
document existing on the case diary for the
purpose of setting up a defence. That provision
applies
primarily
against
printing
or
publication by third party, outside the Court
proceedings. In any case, by virtue of Section
327 Cr.P.C., it would remain with the Court to
restrain the accused person from making any
publication, through any means of any part of
such material, outside the Court proceedings.

18. Further another defect appears to
exist in the order learned court below
inasmuch as in the earlier part of the order it
has been suggested that the copy of the
desired document had already been made
over to the applicant. That part of the
reasoning would conflict with the later
reasoning that such clone copy of pen-drive
is not required to be given to the accused
person, arising from concerns of privacy of
the victim.

19. Whichever way the matter is
looked at, at present the order passed by
the learned court below is found to be
deficient in reasoning. In view of the
discussion made above, the said order
cannot be sustained. It is set aside. The
matter is remitted to the learned court
below to pass a fresh order, keeping in
mind the observation made above. Such
exercise may be completed within one
month from the date of communication of
the order to the learned court below.

20.

Accordingly,
the
present
application is disposed of.
----------
(2023) 3 ILRA 795
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Crl. Misc. Bail Application No. 3574 of 2023

Sandeep Joshi ...Applicant
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Applicant:
Pradeep Kumar Tripathi

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 376, 323 & 506 - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Section 3/4 - Section
40 - Right of child to take assistance of
experts, etc. - entitlement of legal
assistance through a counsel of their
choice
or
through
Legal
Services
Authority, to the family or guardian of the
child - legal assistance is required and the
concerned SHO/Special Juvenile Police
Unit (SJPU) will inform the victim or the
complainant of the case - The Protection
of Children From Sexual Offences Rules,
2020 - Rules 4(13) & 4(15) - Procedure