Bombay High Court Quashes Trial Court Order Rejecting Applications for Production of Documents in Cheating and Breach of Trust Case. Even Though Applications Were Filed After Evidence, Documents Were Already on Record with Charge Sheet, and Opportunity Should Be Granted Under Section 311 of the Code of Criminal Procedure, 1973.

Criminal writ petition under Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure challenging the trial court's rejection of applications for production and exhibition of documents in a pending criminal trial.

Quashing of the Magistrate's order dated 7-8-2012 rejecting applications Exhibits 94 and 104, and allowing both applications.

Trial court refused to permit the production and exhibition of three documents (settlement dated 28-5-2004 and letters dated 9-6-2004 and 19-11-2004) which were already part of the charge sheet, citing delay and non-compliance with Section 173(8) Cr.P.C., after the evidence had been closed and statement of accused under Section 313 recorded.

The Magistrate had previously issued process under Section 156(3) Cr.P.C., registered crime, and filed charge sheet. The accused's discharge application was rejected, which was upheld by the Sessions Judge. During trial, three prosecution witnesses were examined. The first application Exhibit 94 was filed on 15-12-2011; on that day, the Magistrate only granted adjournment with costs. Later, after statement of accused on 4-8-2012, application Exhibit 104 was filed on 7-8-2012, which was rejected together with Exhibit 94 by the impugned order.

Whether the trial court erred in rejecting the applications for production and exhibition of documents that were copies of documents already filed with the charge sheet and referred to in evidence, merely on grounds of delay and non-compliance with Section 173(8) Cr.P.C., despite the wide powers under Section 311 Cr.P.C.

Petitioner argued that the documents were already on record with the charge sheet; there was no need to invoke Section 173(8); the first application was not decided on merits; the second application was filed because the first was not decided; the court has power under Section 311 to allow production and recall witness for cross-examination. Respondent no.2 argued that the applications were filed belatedly after evidence, with ulterior motive to fill lacunae and protract trial; after statement under Section 313, no further evidence should be permitted; relied on Madan Lal & 2 others Vs. State of Madhya Pradesh.

The court has wide power under Section 311 of the Code of Criminal Procedure, 1973 to admit evidence at any stage of trial if it is necessary for a just decision. Where documents sought to be produced are copies of those already filed with the charge sheet and referred to in examination-in-chief, their production cannot be refused merely because the application is made after close of evidence or after the accused's statement under Section 313, especially when arguments have not yet been heard. The provision of Section 173(8) regarding further investigation does not bar the production of such documents. Delay alone is not a ground to reject an application if it would advance the ends of justice.

it is apparent that the copies of three documents which were sought to be produced by the petitioner, by application Exhibit 94 on 15-12-2011 were already on record which were annexed along with the charge sheet and, therefore, there was no question of invoking provision of Section 173(8) of the Code of Criminal Procedure. in fact, application preferred by the petitioner, Exhibit 94, should have been allowed, giving opportunity to the petitioner, but no effective order was passed thereon and, therefore, petitioner preferred another application Exhibit 104, requesting to exhibit the documents which are enlisted as per Exhibit 94. In fact, by allowing first application Exhibit 94 itself, the issue in controversy would have been resolved and, at the most, opportunity should have been given to the respondent no.2 to cross examine the petitioner to that extent, since the court has got wide powers under Section 311 of the Code of Criminal Procedure, in that respect, with a view to have just decision of the case and to meet the ends of justice.

Parties entered into a settlement on 28-5-2004 regarding outstanding commercial dues of Rs. 18,12,044, payable in three instalments with three cheques as security. After payment of the first two instalments, the corresponding cheques were returned. The petitioner claimed that the last instalment of Rs. 5,62,044 was paid on 19-11-2004, but the third cheque was not returned because it was allegedly missing. To avoid complications, the petitioner stopped payment. In January 2005, respondent no.2 deposited the cheque, which was dishonoured. The petitioner filed a complaint under Sections 406, 409, and 420 IPC. The Magistrate ordered investigation under Section 156(3) Cr.P.C. After investigation, a charge sheet was filed with copies of the settlement and letters attached. The accused's discharge application was rejected, and the Sessions Judge upheld the rejection. During trial, three prosecution witnesses were examined. On 15-12-2011, the petitioner filed application Exhibit 94 seeking permission to produce the documents; the court merely granted adjournment with costs. On 4-8-2012, the accused's statement was recorded under Section 313 Cr.P.C. On 7-8-2012, the petitioner filed application Exhibit 104 seeking that the documents be exhibited. The Judicial Magistrate rejected both applications on 7-8-2012. The petitioner then filed Criminal Writ Petition No. 737 of 2012 before the Bombay High Court, which was heard and allowed on 21-8-2012.

• Indian Penal Code, 1860: 406, 409, 420
• Code of Criminal Procedure, 1973: 156(3), 173(8), 311, 313, 482
• Constitution of India: 227