Case Note & Summary
The petitioners, original accused in Sessions Case No.644 of 1996, challenged an order dated 16th October 2003 passed by the Additional Sessions Judge, Mumbai, which allowed the prosecution to produce two additional statements of witnesses at the pre-charge stage. The case arose from a complaint by the mother of the deceased wife of petitioner No.1, leading to investigation and registration of the sessions case. After the petitioners' discharge application was rejected on 14th August 2003, the matter was fixed for framing of charge on 16th October 2003. On that date, the prosecution sought to produce an additional statement of the father of the deceased dated 10th September 2003 and a statement of one Subhada Babu Dalvi dated 20th August 2003. The petitioners objected, but the trial court overruled the objection and allowed production. The High Court considered whether the prosecution could produce such additional statements under Section 173(8) of the Code of Criminal Procedure, 1973 at the pre-charge stage without notice to the accused and without affording an opportunity to cross-examine. The court held that the purpose of Section 173(8) is to enable further investigation, but the statements recorded during such investigation cannot be used at the pre-charge stage without giving the accused an opportunity to cross-examine the witnesses. The accused's right to a fair trial includes the right to know the evidence against him before charge is framed. The court quashed the impugned order and directed the trial court to proceed with framing of charge without considering the two additional statements. The petition was allowed.
Headnote
A) Criminal Procedure - Pre-Charge Stage - Production of Additional Statements - Section 173(8) CrPC, 1973 - The prosecution sought to produce two additional statements of witnesses after the rejection of discharge application and before framing of charge. The court held that such production at the pre-charge stage without notice to the accused and without opportunity to cross-examine is impermissible as it would prejudice the accused's right to fair trial. The order allowing production was quashed. (Paras 1-6) B) Criminal Procedure - Fair Trial - Right to Cross-Examine - Section 173(8) CrPC, 1973 - The court observed that the purpose of Section 173(8) is to enable further investigation, but the statements recorded during such investigation cannot be used at the pre-charge stage without giving the accused an opportunity to cross-examine the witnesses. The accused's right to a fair trial includes the right to know the evidence against him before charge is framed. (Paras 4-6)
Issue of Consideration
Whether the prosecution can produce additional statements of witnesses under Section 173(8) of the Code of Criminal Procedure, 1973 at the pre-charge stage without notice to the accused and without affording an opportunity to cross-examine.
Final Decision
The petition is allowed. The impugned order dated 16th October 2003 is quashed and set aside. The trial court is directed to proceed with framing of charge without considering the two additional statements of witnesses dated 10th September 2003 and 20th August 2003.
Law Points
- Section 173(8) CrPC
- Section 231 CrPC
- fair trial
- right to cross-examination
- pre-charge stage
- additional statements
- notice to accused
