# Sri Prakash Mishra v. State of U.P. & Anr

- **Citation:** Application U/S 482 Cr.P.C. No. 5137 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **Case number:** Application U/S 482 Cr.P.C. No. 5137 of 2020
- **Bench:** Sanay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-prakash-mishra-v-state-of-u-p-anr-46190
- **Pages:** 15

## Headnote

(A) Criminal Law-Code of Criminal
Procedure, 1973 - Section 482 -
Inherent jurisdiction - Section 173 -
Report of police officer on completion
of investigation - Section 207 -
Supply to the accused of copy of
police report and other documents -
Indian Penal Code, 1860 - Section 376
IPC - Compliance of provisions of
section
207
Cr.P.C.
is
condition
precedent for commitment of the case
to the court of sessions - accused is
entitled
to
have
copies
of
the
statements
and
documents
accompanying
the
police
report,
which
the
prosecution
may
use
3-5 All. Sri Prakash Mishra Vs. State of U.P. & Anr.
1639
against him as evidence during the
trial. (Para-18,24)

Applicant moved an application under section
207 Cr.P.C. - for providing copies of F.I.R. , Xray Report, Pathology Report, Supplementary
Report and Statement of witnesses - rejected by
the trial court vide impugned order dated
19.12.2019 - ground of challenge - case is
pending since 2010. (Para - 12)

(B) Criminal law- Code of Criminal
Procedure, 1973 - Section 482 - Section
207 Cr.P.C. - Supply to the accused of
copy
of
police
report
and
other
documents - Section 91- Summons to
produce document or other thing -
Section 233 - Entering upon defence -
Section 243 - Evidence for defence - The
right of accused with regard to disclosure
of documents is limited at the stage of
supplying copies to him in view of
Section 207 of Cr.P.C. (Para-28)

HELD:- At the stage of compliance of
provisions of Section 207 Cr.P.C. accused is not
entitled to get copy of such document, which is
neither part of case diary nor police report and
on which prosecution does not propose to rely
against the accused. (Para - 31)

(C) Code of Criminal Procedure, 1973 -
Section 482 - Section 207 Cr.P.C. - Supply
to the accused of copy of police report
and other documents - no person shall be
deprived of his life and liberty except by
procedure
established
by
law
is
constitutionally guaranteed to every one
-(Para-33)

HELD:- Compliance of principles of natural
justice incorporated in Section 207 Cr.P.C.,
cannot be limited up to the committal court
or up to the commitment of the case to the
Court of Sessions - documents can be
supplied to him even after commitment of
the case to the court of sessions in order to
ensure principles of natural justice and fair
trial. (Para - 33)

Application under section 482 Cr.P.C.
partly allowed (E-7)

List Of Cases Cited:-

## Text

_Characters 0–39,769 of 50,753. This is a partial read: ask again with offset=39769 for what follows._

1638 INDIAN LAW REPORTS ALLAHABAD SERIES
process of the Court, High Court, in
exercise of its inherent powers under
section 482, could quash the proceedings,
but, there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in the
case of State of Bihar v. Murad Ali Khan,
(1989) Cr LJ 1005: AIR 1989 SC 1, Apex
Court
propounded
"In
exercising
jurisdiction under Section 482 High Court
would not embark upon an enquiry whether
the allegations in the complaint are likely to
be established by evidence or not".

15. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above.

16. In view of what has been
discussed above, this Application, under
Section 482 of Cr.P.C., merits dismissal
and
it
stands
dismissed
accordingly.
However, it is made clear that the Trial
court has to make trial as per evidence to be
led before it and the law of Legislation as
well as precedents on the subject and not to
be influenced by any observations or
findings
made,
hereinabove,
in
this
judgment because the same was pertaining
to this proceeding only.

17. However, it is directed that if the
applicants appear and surrender before the
court below within 30 days from today and
apply for bail, their prayer for bail shall be
considered and decided in view of the
settled law laid by this Court in the case of
Amrawati and another Vs. State of U.P.
reported in 2004 (57) ALR 290 as well as
judgement passed by Hon'ble Apex Court
reported in 2009 (3) ADJ 322 (SC) Lal
Kamlendra Pratap Singh Vs. State of U.P.

18. For a period of 30 days from
today, no coercive action shall be taken
against the applicants.

19. In case, if the applicants do not
appear before the Court below within the
aforesaid period, coercive action shall be
taken against them.
----------
(2020)03-05ILR A1638
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE

THE HON'BLE SANAY KUMAR SINGH, J.

Application U/S 482 Cr.P.C. No. 5137 of 2020

Sri Prakash Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Siddhartha Kumar Mishra, Sri Indra
Kumar Chaturvedi

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law-Code of Criminal
Procedure, 1973 - Section 482 -
Inherent jurisdiction - Section 173 -
Report of police officer on completion
of investigation - Section 207 -
Supply to the accused of copy of
police report and other documents -
Indian Penal Code, 1860 - Section 376
IPC - Compliance of provisions of
section
207
Cr.P.C.
is
condition
precedent for commitment of the case
to the court of sessions - accused is
entitled
to
have
copies
of
the
statements
and
documents
accompanying
the
police
report,
which
the
prosecution
may
use
3-5 All. Sri Prakash Mishra Vs. State of U.P. & Anr.
1639
against him as evidence during the
trial. (Para-18,24)

Applicant moved an application under section
207 Cr.P.C. - for providing copies of F.I.R. , Xray Report, Pathology Report, Supplementary
Report and Statement of witnesses - rejected by
the trial court vide impugned order dated
19.12.2019 - ground of challenge - case is
pending since 2010. (Para - 12)

(B) Criminal law- Code of Criminal
Procedure, 1973 - Section 482 - Section
207 Cr.P.C. - Supply to the accused of
copy
of
police
report
and
other
documents - Section 91- Summons to
produce document or other thing -
Section 233 - Entering upon defence -
Section 243 - Evidence for defence - The
right of accused with regard to disclosure
of documents is limited at the stage of
supplying copies to him in view of
Section 207 of Cr.P.C. (Para-28)

HELD:- At the stage of compliance of
provisions of Section 207 Cr.P.C. accused is not
entitled to get copy of such document, which is
neither part of case diary nor police report and
on which prosecution does not propose to rely
against the accused. (Para - 31)

(C) Code of Criminal Procedure, 1973 -
Section 482 - Section 207 Cr.P.C. - Supply
to the accused of copy of police report
and other documents - no person shall be
deprived of his life and liberty except by
procedure
established
by
law
is
constitutionally guaranteed to every one
-(Para-33)

HELD:- Compliance of principles of natural
justice incorporated in Section 207 Cr.P.C.,
cannot be limited up to the committal court
or up to the commitment of the case to the
Court of Sessions - documents can be
supplied to him even after commitment of
the case to the court of sessions in order to
ensure principles of natural justice and fair
trial. (Para - 33)

Application under section 482 Cr.P.C.
partly allowed (E-7)

List Of Cases Cited:-

1. Ramesh Vs. St. of Maharashtra, 1995 Cr.L.J.
3424

2. St. of Kerala Vs. Babu, 1999 (4) SCC 621

3. Prakash, Ravi Karan Vs. St. of U.P., 2019
Supreme (All) 2405

4. Ramesh vs St. of Mah., 1995 Cr.L.J. 3424

5. St. of Kerala vs Babu, 1999 (4) SCC 621

6. Prakash, Ravi Karan vs St. of U.P., 2019
Supreme (All) 2405,

7. P. Gopalkrishnan @ Dileep Vs. St. of Kerala &
anr., AIR 2020 SC 1

(Delivered by Hon'ble Sanjay Kumar Singh, J.)

1.

Heard
Mr.
Indra
Kumar
Chaturvedi,
learned
Senior
Advocate
assisted by Mr. Siddhartha Kumar Mishra,
learned counsel for applicant and Mr.
Virendra
Kumar
Maurya,
learned
Additional Government Advocate, assisted
by Mr. Vikash Chandra Tewari, learned
brief holder for the State of U.P./opposite
party No.1 and perused the record with the
assistance of learned counsel for the
parties.

2. This application under section 482
of Code of Criminal Procedure, (hereinafter referred to as 'Cr.P.C'.) has been
preferred by the applicant against the order
dated 19.12.2019 passed by the learned
Additional Sessions Judge (Fast Track
Court-I), Bhadohi-Gyanpur in Sessions
1640 INDIAN LAW REPORTS ALLAHABAD SERIES
Trial No. 87 of 2018 (State vs Shri Prakash
Mishra) arising out of Case Crime No. 94
of 2010, under section 376 IPC, police
station Aurai, district Bhadohi, whereby
application No. 6 Kha, dated 10.04.2018
under section 207 Cr.P.C. moved on behalf
of the applicant has been rejected. Further
prayer has been made to direct the trial
court to supply the copy of relevant
documents as mentioned in the application
dated 10.04.2018 as per provision of
section 207 Cr.P.C.

3. The main issues, which have arisen
for consideration in the present case, are as
under:

(i) "Whether any document which
is neither part of case diary nor police
report under section 173 Cr.P.C., on which
the prosecution does not propose to rely
can be given to accused in compliance of
provisions contained under section 207 of
Code of Criminal Procedure ?"

(ii)
"Whether
documents
as
mentioned in section 207 of Code of
Criminal Procedure can be supplied to
accused even after commitment of case to
the Court of Sessions, in case same has not
been supplied to accused either in full or in
part before commitment of case to the
Court of Sessions?"

4. After going through the record of
this case, I find that this is an old case of
the year 2010 and is being unnecessarily
dragged since long on the issue of
compliance of the provisions provided
under section 207 of Cr.P.C. Since, this
case has a chequered history in this regard,
therefore, before delving into the issue, it is
necessary to mention factual matrix of the
case in brief. The occurrence is alleged to
have been taken place on 26.03.2010 at
village Sikarha, police station Handia,
district Allahabad and the first information
report was lodged by victim on 27.03.2010
registered at Book No. 036427 at police
station Aurai district Sant Ravidas Nagar
(Bhadohi). The investigation of the case
was conducted by the police of police
station Aurai, district Sant Ravidas Nagar
and the charge sheet was submitted on
14.06.2010 against the applicant, on which
cognizance had already been taken by the
Magistrate concerned on 22.06.2010.

5. As per the case of the accusedapplicant, same first information report was
also registered at Book No. 036428, but on
account of some irregularities, original
copy of the same was not forwarded to
court.
On
05.11.2011,
06.06.2011,
08.09.2015 and 12.05.2016, applications
were moved on behalf of the applicant to
provide copy of all the documents/police
papers along with copy of first information
report registered at Book No. 036428. The
aforesaid applications of the applicant has
been decided vide order dated 28.05.2016
directing the concerned clerk to prepare
copy of all the documents, on which
prosecution proposes to rely and to provide
the same to the applicant, but so far as the
prayer of the applicant for providing copy
of first information report registered at
Book No. 036428 is concerned, the same
was rejected by the same order dated
28.05.2016 observing that as per report
submitted by police, the first information
report dated 27.03.2010 of this case was
registered at Book No. 036427, original
copy of said first information report is
available on record and considering the
same, cognizance of this case was taken by
the Magistrate. It is also observed that due
to inadvertent mistake, on the basis of same
information,
another
first
information
report was also registered at Book No.
036428, therefore, it is not justified to give
3-5 All. Sri Prakash Mishra Vs. State of U.P. & Anr.
1641
copy of the same to the applicant for the
purpose of this case.

6.

The
aforesaid
order
dated
28.05.2016 had been challenged by the
applicant in Criminal Revision No. 39 of
2016 before the Sessions Judge, Bhadohi,
which has been dismissed by order dated
03.06.2016. Both the aforesaid orders dated
28.5.2016 and 03.06.2016 have not been
further challenged by the applicant, and as
such same have attained finality.

7. The applicant again on 09.06.2016
and 14.06.2016 moved applications for
providing copy of first information report
registered at Book Nos. 036427 and
036428, but the said applications were
again rejected vide order dated 18.06.2016
by
the
Additional
Chief
Judicial
Magistrate, Bhadohi observing that the
same prayer was earlier made by the
applicant through the applications dated
05.11.2011, 06.06.2011, 08.09.2015 and
12.05.2016, which have already been
decided vide order dated 28.05.2016,
therefore, moving of another application
with same prayer is not liable to be
accepted.

8. In the order dated 18.06.2016, it is also
mentioned that so far as registration of first
information report at Book No. 036428 is
concerned, an explanation has already been
tendered by the concerned police station on
07.06.2016. Case is of the year 2010, but
committal of the case is being lingered on due
to non cooperation of the applicant on one
ground or the other. The Magistrate concerned
while deciding application dated 14.06.2016
has also directed the applicant to co-operate in
the proceedings of committal with further
direction to the concerned clerk to get the copy
of all the police papers prepared afresh fixing
02.07.2016 for providing the same to the
applicant. On 02.07.2016, learned Magistrate
again directed the concerned clerk to get the
copy of all prosecution papers prepared fixing
23.07.2016 for supply of copies and committal
of case. At that stage, the applicant moved an
application dated 02.07.2016 praying therein to
pass an order under section 173(8) of Cr.P.C.
for further investigation in the matter by the
police of police station Handia, district
Allahabad. Thereafter, the applicant started
sending adjournment applications seeking
exemption of his personal appearance before
the trial court on 23.07.2016, 09.08.2016,
12.08.2016,
24.08.2016,
02.09.2016,
03.10.2016,
14.10.2016,
20.10.2016,
28.10.2016,
24.11.2016,
03.12.2016,
09.12.2016,
13.12.2016.
03.01.2017,
11.01.2017,
19.01.2017,
31.01.2017,
15.03.2017,
24.04.2017,
18.05.2017,
03.06.2017,
17.06.2017,
26.07.2017,
26.08.2017,
11.09.2017,
28.10.2017,
22.11.2017,
23.12.2017,
11.01.2018,
24.01.2018,
15.02.2018,
15.03.2018,
19.03.2018, 20.03.2018.

9. On 21.03.2018, the applicant
moved an application praying therein that
an explanation be called for from the police
station Aurai in respect of F.I.R. registered
at Book No. 36428. On 24.03.2018 when
the case was fixed for committal of the
case,
the
applicant
moved
another
application challenging the validity of
cognizance taken in the matter. All the
aforesaid applications dated 02.07.2016,
21.03.2018 and 24.03.2018 were decided
and rejected by common order dated
24.03.2018 and further date was fixed on
27.03.2018 for committal of the case to the
court of sessions.

10. On 27.03.2018, learned counsel
for accused was present, but again
application was moved on behalf of
accused-applicant for exemption of his
1642 INDIAN LAW REPORTS ALLAHABAD SERIES
personal appearance. On the said date,
copies of all the documents/police papers
were ready for being supplied to the
accused, but learned counsel for accused
refused to receive the same and was
insisting to provide copy of Chik F.I.R.
registered at Book No. 036428 after getting
the original copy summoned from the
police station, Aurai, district Sant Ravidas
Nagar.

11. Under the circumstances, on
27.03.2018 before committing the case to
the court of sessions, a detailed order was
passed
before
lunch
hours
by
the
Additional
Chief
Judicial
Magistrate
concerned mentioning that all the prayer
and objections raised on behalf of applicant
by means of several applications, as
mentioned above, have already been
decided. However, one more opportunity
was given to the accused to receive the
copy of all the documents/police papers,
otherwise it shall be presumed that
accused-applicant is not cooperating in the
proceedings of the court. Case was posted
after lunch hour for committal of case.
After lunch hour, the court of Additional
Chief
Judicial
Magistrate,
Bhadohi,
Gyanpur was informed that copy of some
documents of the prosecution have been
provided to the accused-applicant as per
direction of the court, in view of provision
of section 207 Cr.P.C., but he has refused
to receive the other documents. Under the
circumstances,
the
Additional
Chief
Judicial Magistrate, Bhadohi, Gyanpur
after recording the said fact, passed
separate
order
dated
27.03.2018
committing the case to the court of
sessions.

12. On 10.04.2018, the applicant
again moved an application under section
207 Cr.P.C. for providing copies of F.I.R.
registered at Book No. 036428, X-ray
Report, Pathology Report, Supplementary
Report and Statement of witnesses, which
has been rejected by the trial court vide
impugned order dated 19.12.2019, which is
the subject matter of challenge in the
present application.

13. Since, pure legal question
regarding compliance of section 207
Cr.P.C. is involved in the present case,
therefore, it is not necessary to issue notice
to opposite party No. 2, as the matter is
pending since 2010 and till date charges
have not been framed in the trial
proceedings.

14. Assailing the impugned order
dated 19.12.2019, main substratum of
argument of learned counsel for the
applicant is that the application dated
10.04.2018 under section 207 Cr.P.C.
moved on behalf of the applicant for
providing copy of F.I.R registered at Book
No. 036428 and other documents of the
prosecution, which are part of the case
diary
and
police
report,
on
which
prosecution is relying, has been illegally
rejected by the trial court. It is next
submitted by the learned counsel for the
applicant that without complying the
provision of section 207 Cr.P.C., case
could not be committed to the court of
sessions, therefore, impugned order dated
19.12.2019 is not sustainable in the eye of
law and is liable to be quashed.

15. Learned counsel for the applicant
in support of his submission, placed
reliance upon the following judgments:

1.
Ramesh
vs
State
of
Maharashtra, 1995 Cr.L.J. 3424

2. State of Kerala vs Babu, 1999
(4) SCC 621
3-5 All. Sri Prakash Mishra Vs. State of U.P. & Anr.
1643

3. Prakash, Ravi Karan vs State
of U.P., 2019 Supreme (All) 2405

16. Per contra, learned Additional
Government Advocate vehemently opposed
and refuted the submissions advanced on
behalf of the applicant, submitted that from
perusal of the order sheet of this case,
which is on record as annexure-4 to the
application, it is apparently clear that
provision of section 207 Cr.P.C. has
already been complied with. It is also
submitted that from the order sheet of this
case, it is clear that best efforts have been
made by the court to provide the copy of all
the relevant documents of the prosecution
to the accused-applicant, but he accepted
some documents and refused to receive
remaining documents deliberately with
ulterior
motive
just
to
delay
the
proceedings of the trial. So far as demand
of copy of F.I.R. registered at Book No.
036428 is concerned, the same has no
concern with this case as first information
report dated 27.03.2010 of this case was
registered vide Chik F.I.R. registered at
Book No. 036427, on which investigation
proceeded and charge sheet has been
submitted. Much emphasis has been given
that the prayer for providing copy of Chik
F.I.R. registered at Book No. 036428 to the
applicant has already been refused by the
Magistrate concerned vide order dated
28.05.2016, which has attained finality as
revision preferred against the same by the
applicant,
was
also
dismissed
on
03.06.2016, therefore, there is no illegality
in the impugned order dated 19.12.2019.
Lastly, it is submitted that since, liberty has
been granted to the applicant for inspection
of
any
documents,
therefore
present
application is liable to be dismissed.

17.

After
having
heard
the
argument of learned counsel for the
parties as mentioned above, this Court
is of the view that every case turns on
its own facts, therefore, before delving
into the issue, it would be useful to set
out sections 173 and 207 of Code of
Criminal Procedure, which reads as
under:

"173. Report of police officer
on completion of investigation.

(1) Every investigation under
this Chapter shall be completed without
unnecessary delay.

(2) (i) As soon as it is
completed, the officer in charge of the
police station shall forward to a
Magistrate
empowered
to
take
cognizance of the offence on a police
report, a report in the form prescribed
by the State Government, stating-

(a) the names of the parties;

(b)
the
nature
of
the
information;

(c) the names of the persons
who appear to be acquainted with the
circumstances of the case;

(d)
whether
any
offense
appears to have been committed and, if
so, by whom;

(e) whether the accused has
been arrested;

(f)whether
he
has
been
released on his bond and, if so, weather
with or without sureties;

(g)
whether
he
has
been
forwarded in custody under section
170;

(h) whether the report of
medical examination of the woman has
been
attached
where
investigation
relates to an offence under sections
376, 376-A, 376-B, 376-C, 376-D or
section 376-E of the Indian Penal Code;

(ii)The
officer
shall
also
communicate, In such manner as may be
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed by the State Government, the
action taken by him, to the person, if any,
by whom the information relating to the
commission of the offence was first given.

(3)Where a superior officer of
police has been appointed under section
158, the report shall, in any case in which
the State Government by general or special
order so directs, be submitted through that
officer, and he may, pending the orders of
the Magistrate, direct the officer in charge
of the police station to make further
investigation.

(4)Whenever it appears from a
report forwarded under this section that the
accused has been released on his bond, the
Magistrate shall make such order- for the
discharge of such bond or otherwise as he
thinks fit.

(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.

(7) Where the police officer
investigating the case finds it convenient so
to do, he may furnish to the accused copies
of all or any of the documents referred to in
sub- section (5).

(8)Nothing in this section shall be
deemed to preclude further investigation in
respect of an offence after a report under
sub- section (2) has been forwarded to the
Magistrate
and,
where
upon
such
investigation, the officer in charge of the
police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports
regarding such evidence in the form
prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports
as they apply in relation to a report
forwarded under sub- section (2)."

"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
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
3-5 All. Sri Prakash Mishra Vs. State of U.P. & Anr.
1645
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."

18.

Aforesaid
provisions
are
applicable to all types of cases instituted
upon
police
reports.
Compliance
of
provisions of section 207 Cr.P.C. is
condition precedent for commitment of the
case to the court of sessions. If copy of
documents mentioned in section 207
Cr.P.C. are not supplied to accused either
in full or in part, he cannot effectively
defend
himself
before
the
trial
court/sessions court. The first proviso to
section 207 Cr.P.C. empowers the court to
exclude from the copies to be furnished to
the accused such portion as may be covered
by section 173 (6) Cr.P.C. The second
proviso to section 207 Cr.P.C. 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 voluminous contents thereof.
The provisions of section 173 (5) Cr.P.C.
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 trial. Section 173 (5)
Cr.P.C., however, is subject
to the
provisions of section 173 (6) Cr.P.C.,
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)
Cr.P.C. from the copies to be granted to the
accused.

19. In the light of facts and issues
involved in this case, it is relevant to deal
with the judgments relied upon on behalf of
the applicant.

20. In the case of Ramesh vs State of
Maharashtra, reported in 1995 Cr.L.J.
3424, application of the accused for
directing the prosecution to produce the
dying declaration of the deceased and also
for supply of statements of witnesses
recorded by the police was rejected. In the
said case, it was admitted fact that dying
declaration of the deceased was recorded
and was part of police papers, but
prosecution was not relying on the same.
The High Court while deciding the issue
has directed the Additional Sessions Judge
to get it ascertained as to whether such
dying declarations are in existence or not, if
they are in existence, copies thereof shall
be supplied to accused. The relevant
observation
and
finding
recorded
in
paragraphs 15 and 16 of the said judgment,
are reproduced herein below:

"15. If such a dying declaration is
recorded during investigation and is kept
back from the accused, Merely because it
helps the accused, to deny the copy thereof
to him for the purposes of defence would be
highly prejudicial to him. The said dying
declaration, if existing on record, would
undoubtedly provide a material to the
defence
to
effectively
cross-examine
regarding the nature of investigation. Even
the investigating officer could be subjected
to a cross-examination on the basis of such
dying declaration. Apart from that, such
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
dying declaration could be used for
unearthing the truth of the prosecution
story,
because
it
might
affect
the
evidentiary value of the other dying
declarations
on
account
of
the
contradictions. Under such circumstances,
it will not be fair to deny the copy of the
dying declaration to the accused on the
spacious ground that it forms a part of the
case diary. If such dying declaration is
proved to be in existence, it will be the
right of the accused to have the copy
thereof. The trial Court was, therefore, in
error in not establishing as to whether such
dying declaration exists or not. It has
already been pointed out that there is no
denial that there are no such dying
declarations. The impugned order is,
therefore clearly incorrect and will have to
be set aside.

16. In the result, the learned
Additional Sessions Judge is directed to get
it established as to whether such dying
declarations are in existence or not. If they
are in existence, copies thereof shall be
supplied to the applicant-accused. With
these observations the instant Criminal
Application stands disposed of."

21. In the case of State of Kerala vs
Babu, reported in 1999 (4) SCC 621,
applications were moved on behalf of
accused persons to summon case diary of
another case for confronting the witness
with his previous statement as found in the
said case diary and to recall the said
witness. The Sessions Judge, allowed the
said applications, which came to be
challenged before the High Court by the
State as well as brother of the deceased.
The said petitions came to be dismissed by
the High Court by holding that there is no
bar in law to summon the case diary of case
even other than one, which is being tried,
for the purpose of contradicting the
evidence of prosecution witness. On filing
appeal by special leave, the Apex Court has
held that a case diary of another case, not
pertaining to the trial in hand can be
summoned if the court trying the case
considers that production of such a case
diary is necessary or desirable for the
purpose of trial, under section 91 of the
Code.

22. In the case of Prakash, Ravi
Karan vs State of U.P., reported in 2019
Supreme (All) 2405, judgment and order
dated 30.04.2015 passed by trial court, by
which accused has been convicted, was
challenged, wherein the Division Bench of
this Court while deciding the case has made
an observation with regard to compliance
of provision of section 207 Cr.P.C. in
paragraph 31 of the judgment, which is
reproduced herein below:

"31. Section 238 of Cr.P.C.
unequivocally provided that a solemn duty
is cast on the Magistrate to satisfy himself
that he has strictly complied with the
provisions of Section 207 Cr.P.C. viz.
furnishing the accused, free of cost, copies
of documents as prayed for by him and
referred to in that section itself without
delay and such satisfaction has to be
invariably
judicial
satisfaction.
An
omission to comply with the mandatory
provision of law as enshrined in Section
207 Cr.P.C. read with Section 238 Cr.P.C
is bound to cause serious prejudice to the
accused and such a situation may even
vitiate the criminal trial. The supply of
documents and statements prepared at the
investigating stage as mandated under
Section 207Cr.P.C. cannot be treated a
mere superfluity or empty formality. It is
highly improper and irregular on the part
of the Court to shirk its responsibility in
this regard and put the accused at the
3-5 All. Sri Prakash Mishra Vs. State of U.P. & Anr.
1647
mercy of prosecution by merely observing
inter alia that it is the duty of prosecution
''to follow the rules of natural justice'.
Thus, it can safely be held that accused
could not be refused to supply copies of
documents even at the stage of trial, if
relied upon by the prosecution per
statutory provisions of Section 207 Cr.P.C.
and also as per the provisions of Section
238 Cr.P.C. If we go carefully through the
ratio laid down in V.K. Sasikala Vs. State
(2012) 9 SCC 771, we get clear idea about
the solemn duty of the Court to supply
copies of documents to the accused. It is the
duty of the Court to supply to the accused,
copies of the police report, the first
information report recorded under Section
154 Cr.P.C., the statements recorded under
Section 161 (3) the confessions and
statements, if any, recorded under Section
164 and any other documents or relevant
extract thereof, which is forwarded to the
Magistrate along with police report."

23. In view of aforesaid discussion, it
is apparent that the judgments relied upon
on behalf of the accused-applicant are of no
help to the applicant as applicant's demand
of first information report registered at
Book No. 036428, on which neither
investigation was done nor same was made
part of case diary/police report and
prosecution does not propose to rely on the
same.

24. Here, it is apposite to mention that
even one additional or different fact may
make
big
difference
between
the
conclusion in two cases. Each case depends
on its own facts and a close similarity
between one case and another is not
enough, because even a single significant
detail may alter entire aspect. It is well
settled that accused is entitled to have
copies of the statements and documents
accompanying the police report, which the
prosecution may use against him as
evidence during the trial.

25. Recently, the Apex Court in the
case of P. Gopalkrishnan @ Dileep Vs.
State of Kerala and another, reported in
AIR 2020 SC 1, has also discussed the
scope and object of Section 207 Cr.P.C. In
the said case, basic facts was that two
police
reports
were
submitted
on
17.04.2017 and 22.11.2017 respectively.
When the appellant was supplied a copy of
the second police report on 15.12.2017, all
documents noted in the said report, on
which the prosecution proposed to rely,
were not supplied to the appellant, namely,
(i) electronic record (contents of memory
card); (ii) Forensic Science Laboratory (for
short, ''the FSL') reports and the findings
attached thereto in C.D./D.V.D.; (iii)
medical reports; C.C.T.V. footages and (iv)
Call data records of accused and various
witnesses etc. It is noted by the concerned
Magistrate that the visuals copied and
documented by the forensic experts during
the forensic examination of the memory
card were allowed to be perused by the
appellant's counsel in the presence of the
regular cadre Assistant Public Prosecutor of
the Court, in the Court itself. After
watching the said visuals, some doubts
cropped up, which propelled the appellant
to file a formal application before the
Judicial First Class Magistrate, Angamaly
for a direction to the prosecution to furnish
a cloned copy of the contents of memory
card containing the video and audio
footage/clipping, in the same format as
obtained in the memory card, along with
the transcript of the human voices, both
male and female recorded in it. The
Magistrate vide order dated 7.2.2018,
rejected the said application, essentially on
the ground that acceding to the request of
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant would be impinging upon the
esteem, decency, chastity, dignity and
reputation of the victim and also against
public interest. Aggrieved by above order
dated 7.2.2018, the appellant preferred
petition before High Court, which came to
be dismissed observing that the seized
memory card was only the medium on
which the alleged incident was recorded
and hence that itself is the product of the
crime. Further, it being a material object
and not documentary evidence, is excluded
from the purview of Section 207 of the
1973 Code. The matter came to Apex Court
and appeal has been allowed. The relevant
observations made by the Apex Court in
paragraph nos. 41, 42, 43 and 44 are being
reproduced herein-below:-

"41. We are conscious of the fact
that Section 207 of the 1973 Code permits
withholding
of
document(s)
by
the
Magistrate only if it is voluminous and for
no other reason. If it is an "electronic
record", certainly the ground predicated in
the second proviso in 42 (2018) 17 SCC
324Section 207, of being voluminous,
ordinarily, cannot be invoked and will be
unavailable. We are also conscious of the
dictum in the case of Superintendent and
Remembrancer of Legal Affairs, West
Bengal vs. Satyen Bhowmick & Ors.43,
wherein this Court has restated the
cardinal principle that accused is entitled
to have copies of the statements and
documents accompanying the police report,
which the prosecution may use against him
during the trial.

42.
Nevertheless,
the
Court
cannot be oblivious to the nature of offence
and
the
principle
underlying
the
amendment to Section 327 of the 1973
Code, in particular sub Section (2) thereof
and insertion of Section 228A of the 1860
Code, for securing the privacy of the victim
and her identity. Thus understood, the
Court is obliged to evolve a mechanism to
enable the accused to reassure himself
about the genuineness and credibility of the
contents of the memory card/pendrive from
an independent agency referred to above,
so as to effectively defend himself during
the trial. Thus, balancing the rights of both
parties is imperative, as has been held in
Asha Ranjan (supra) and 43 (1981) 2 SCC
109Mazdoor
Kisan
Shakti
Sangathan
(supra). The Court is duty bound to issue
suitable directions. Even the High Court, in
exercise of inherent power under Section
482 of the 1973 Code, is competent to issue
suitable directions to meet the ends of
justice.

43. If the accused or his lawyer
himself, additionally, intends to inspect the
contents of the memory card/pen drive in
question, he can request the Magistrate to
provide him inspection in Court, if
necessary, even for more than once along
with his lawyer and I.T. expert to enable
him to effectively defend himself during the
trial. If such an application is filed, the
Magistrate
must
consider
the
same
appropriately
and
exercise
judicious
discretion with objectivity while ensuring
that it is not an attempt by the accused to
protract the trial. While allowing the
accused and his lawyer or authorized I.T.
expert, all care must be taken that they do
not carry any devices much less electronic
devices, including mobile phone which may
have
the
capability
of
copying
or
transferring the electronic record thereof
or mutating the contents of the memory
card/pendrive
in
any
manner.
Such
multipronged approach may subserve the
ends of justice and also effectuate the right
of accused to a fair trial guaranteed under
Article 2 1of the Constitution.

44. In conclusion, we hold that
the contents of the memory card/pen drive
3-5 All. Sri Prakash Mishra Vs. State of U.P. & Anr.
1649
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."

26. On perusal of impugned order dated
19.01.2019, I find that the application dated
10.04.2018 under Section 207 Cr.P.C. of the
accused-applicant has been rejected mainly on
the ground that the case is pending since 2010.
The request for providing copy of Chik F.I.R.
registered at Book No. 036428 has already been
refused by a detailed order dated 28.05.2016
and the same has attained finality, because
Criminal Revision No. 39 of 2016 preferred by
the applicant against the said order dated
28.05.2016 before the Sessions Judge, Bhadohi,
has been dismissed at admission stage on
03.06.2016, which has not been further
challenged. On 27.03.2018, the case has been
committed to the court of sessions. In the
committal order dated 27.03.2018, it is clearly
mentioned that some documents of the
prosecution case have been given to the
accused, but the accused has refused to receive
the remaining documents. It has also been
observed that on account of delaying tactics
adopted by the applicant, till date charge could
not be framed in this case despite lapse of about
ten years from the date of incident. Applicant
cannot be permitted to raise similar issue again
and again, which has already been rejected on
28.05.2016. However, liberty has been granted
to applicant to inspect any document in the
court.

27. Now, I proceed to decide issue No.1.

28. The aim and object of section 207 of
Cr.P.C. is to provide copy of police report along
with documents appended thereto, on which
prosecution proposes to rely against the
accused, is only to give a fair opportunity to the
accused to defend himself otherwise accused
will not be able to defend himself in true sense.
The right of accused with regard to disclosure
of documents is limited at the stage of
supplying copies to him in view of Section 207
of Cr.P.C. At that stage, the accused cannot
claim an indefeasible legal right to claim every
document, on which prosecution does not
propose to rely. In the present case, it is
admitted fact that F.I.R. dated 27.03.2010 was
registered
at
Book
No.
036427
and
investigation was done and charge-sheet was
submitted pursuant to said F.I.R. It has come on
record that due to inadvertent mistake, on the
basis of F.I.R. registered at Book No. 036427,
another F.I.R. was registered at Book No.
036428, which has not been given effect to. The
police of concerned police station has also
submitted explanation in this regard on
07.06.2016. The F.I.R. registered at Book No.
036428 is neither part of case diary nor part of
police report.