Case Note & Summary
The petitioner, Dr. Sublendu Prakash Diwakar, filed a criminal writ petition under Article 226 of the Constitution of India read with Section 482 CrPC, challenging the order dated 29/8/2023 passed by the Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai, rejecting his application under Section 91 CrPC read with Section 165 of the Indian Evidence Act, 1872. The petitioner is an accused in C.R. No. 278/2020 registered at Bandra Kurla Complex Police Station, Mumbai, on 14/10/2020, for offences under Sections 376, 376(2)(n), 506 IPC and Section 66(E) of the Information Technology Act. The complainant alleged that the accused established physical relationship on the pretext of marriage and clicked objectionable photographs to coerce her. During investigation, the police seized various documents, including WhatsApp chats and other electronic records. The charge-sheet was filed with selective documents, and the petitioner claimed that certain seized documents, which were exculpatory, were not forwarded to the trial court. The petitioner had earlier obtained transit bail from Patiala House Court, Delhi, and filed an anticipatory bail application before the Sessions Court, Mumbai, enclosing WhatsApp chats to show consent. The trial court rejected the application under Section 91 CrPC, leading to the present petition. The High Court heard arguments from both sides. The petitioner's counsel argued that the documents were essential for a fair trial and that the prosecution had a duty to disclose all material. The State opposed, contending that the documents were not relied upon and the application was filed belatedly. The court analyzed the scope of Section 91 CrPC and Section 165 of the Evidence Act, emphasizing that the accused has a right to access material collected during investigation, especially if it is exculpatory. The court held that the trial court's order was cryptic and did not consider the relevance of the documents. The court set aside the impugned order and directed the trial court to reconsider the application afresh, after hearing both parties, and to pass a reasoned order within four weeks. The court clarified that it had not expressed any opinion on the merits of the case.
Headnote
A) Criminal Procedure - Production of Documents - Section 91 CrPC read with Section 165 Indian Evidence Act, 1872 - Right to Fair Trial - The accused sought production of documents seized during investigation but not filed with charge-sheet, claiming they were exculpatory. The trial court rejected the application. The High Court held that the accused has a right to access all material collected during investigation, including documents not relied upon by prosecution, if they are essential for his defence and a fair trial. The court set aside the impugned order and directed the trial court to reconsider the application afresh, ensuring the documents are produced if relevant and not privileged. (Paras 1-24)
B) Criminal Procedure - Charge-sheet - Duty of Prosecution - Section 173 CrPC - The prosecution must file all documents relied upon in the charge-sheet, but documents seized but not relied upon must be disclosed to the accused if they are relevant to the defence. The court emphasized that withholding exculpatory material violates the right to fair trial under Article 21 of the Constitution. (Paras 10-15)
C) Evidence - Electronic Evidence - WhatsApp Chats - Admissibility - The accused relied on WhatsApp chats to show consent. The court noted that electronic evidence is admissible under Section 65B of the Indian Evidence Act, 1872, and the accused is entitled to rely on such material for his defence. (Paras 5-8)
Issue of Consideration
Whether the trial court erred in rejecting the accused's application under Section 91 CrPC read with Section 165 of the Indian Evidence Act, 1872, seeking production of documents seized during investigation but not filed with the charge-sheet, and whether such documents are essential for a fair trial.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 29/8/2023, and directed the trial court to reconsider the application under Section 91 CrPC afresh, after hearing both parties, and pass a reasoned order within four weeks. The court clarified that it had not expressed any opinion on the merits of the case.
Law Points
- Right to fair trial
- Production of documents under Section 91 CrPC
- Duty of prosecution to disclose all material
- Section 165 Evidence Act
- Exculpatory documents
- Charge-sheet documents
Case Details
2023 LawText (BOM) (12) 85
Criminal Writ Petition (ST) No. 17507 of 2023
Siddhesh Bhole, Yakshay Chheda, Gautam Khazanchi i/b SSB Legal and Advisory for Petitioner; S.R. Agarkar, APP for State
Dr. Sublendu Prakash Diwakar
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution read with Section 482 CrPC challenging the rejection of an application under Section 91 CrPC for production of documents seized during investigation but not filed with charge-sheet.
Remedy Sought
Quashing of order dated 29/8/2023 passed by Addl. Sessions Judge, City Civil and Sessions Court, Greater Mumbai, and direction to produce documents seized during investigation.
Filing Reason
The petitioner, an accused in a rape case, sought production of documents (including WhatsApp chats) seized by the investigating officer but not forwarded to the trial court, claiming they were exculpatory and essential for his defence.
Previous Decisions
The trial court rejected the application under Section 91 CrPC on 29/8/2023. The petitioner had earlier obtained transit bail from Patiala House Court, Delhi, and anticipatory bail from Sessions Court, Mumbai.
Issues
Whether the trial court erred in rejecting the application under Section 91 CrPC read with Section 165 of the Indian Evidence Act, 1872, for production of documents seized during investigation but not filed with charge-sheet.
Whether the accused has a right to access all material collected during investigation, including documents not relied upon by the prosecution, for a fair trial.
Submissions/Arguments
Petitioner argued that the documents were essential for his defence and that the prosecution had a duty to disclose all material, including exculpatory documents. The trial court's order was cryptic and did not consider the relevance of the documents.
State opposed, contending that the documents were not relied upon by the prosecution and the application was filed belatedly. The State argued that the accused could summon witnesses at the trial stage.
Ratio Decidendi
The accused has a right to a fair trial under Article 21 of the Constitution, which includes access to all material collected during investigation, especially documents that may be exculpatory. The trial court must consider the relevance of such documents and cannot reject an application under Section 91 CrPC summarily. The prosecution's duty to disclose material extends to documents not filed with the charge-sheet if they are essential for the defence.
Judgment Excerpts
The present petition is fled by the Petitioner, inter alia, praying for quashing and setting aside of the order dated 29/8/2023 passed by the Addl. Sessions Judge, City Civil and Sessions Court, Greater Mumbai, rejecting the application fled by the petitioner under Section 91 of the Code of Criminal Procedure r/w 165 of the Indian Evidence Act, 1872, seeking production of documents which were seized by the Investigating Offcer during the course of investigation of the C.R., in which he is arraigned as an accused, but having not been forwarded to the trial Court along with the charge-sheet.
The Petitioner availed transit bail from Patiala House Court, Delhi, and thereafter, fled an Anticipatory Bail Application under Section 438 of Cr.P.C, before the Sessions Judge, City Civil and Sessions Court, Mumbai, since the crime was registered in the police station which fell within its jurisdiction. Along with the application, the petitioner enclosed conversation between him and the complainant in form of Whatsapp chats and he also enclosed...
Procedural History
The petitioner was arraigned as an accused in C.R. No. 278/2020 registered on 14/10/2020 at Bandra Kurla Complex Police Station, Mumbai. He obtained transit bail from Patiala House Court, Delhi, and filed an anticipatory bail application under Section 438 CrPC before the Sessions Court, Mumbai. The charge-sheet was filed with selective documents. The petitioner filed an application under Section 91 CrPC read with Section 165 of the Indian Evidence Act, 1872, seeking production of documents seized during investigation but not filed with charge-sheet. The trial court rejected the application on 29/8/2023. The petitioner then filed the present criminal writ petition under Article 226 of the Constitution read with Section 482 CrPC before the Bombay High Court, which was reserved on 7/11/2023 and pronounced on 4/12/2023.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 91, 173, 438, 482
- Indian Evidence Act, 1872: 165, 65B
- Indian Penal Code, 1860 (IPC): 376, 376(2)(n), 506
- Information Technology Act, 2000: 66(E)
- Constitution of India: 226
