Shekhar Tiwari and Another vs State of U. P.

V.K. Dixit, J.—Heard Sri Nagendra Mohan, learned counsel for the applicants/petitioners and Sri I.B. Singh, learned Special counsel for the opposite party.

This petition under Section 482, Cr.P.C. has been preferred against the order dated 9.6.2009 passed by Special Judge, Ayodhya Prakaran, Lucknow, thereby rejecting the application of the petitioners for providing video tapes and photographs collected by the Investigating Officer on 24.12.2008 during investigation, in the case Shekhar Tiwari and others v. State of U.P." and" Vibha Tiwari and others v. State of U.P. vide case No. 446 of 2009 and 447 of 2009 in crime No. 299 of 2008 under Sections 323,342,457,364,302,201,120B IPC and Section 7 Criminal Law Amendment Act, Police Station Diviyapur, District Auriyan, pending in the Court of Special Judge Ayodhya Prakaran, Lucknow.

It is submitted by learned counsel for the petitioners that the petitioners are not named in the F.I.R. and have falsely been implicated in the case. The Investigating Officer has inspected the spot on the very first day of the occurrence and had done videography and taken photographs of the spot on the same day, which was also mentioned in the case diary. It is further submitted that the scribe of the F.I.R. Muna Singh who as per prosecution has lodged the F.I.R. has stated in his statement under Section 161, Cr.P.C. that he is a photographer and is running a studio. On the day of occurrence, he reached the spot and did videography and videography, where the informant Manju Gupta has narrated the F.I.R. and the same was written by him. It is urged by the petitioners'' counsel that the said videography and photographs were very important and most relevant evidence of this case collected by the Investigating Officer but the same have not been supplied to the applicants by the prosecution. He pointed out that because of controversy between the lawyers of the Auriyan, the petitioners could not move application earlier regarding the obtaining of the videography and photographs. That the learned trial Court has rejected the application of the petitioners for supply of the copies without applying its judicial mind and judicial discretion merely on the basis of objection raised by the prosecution. It is also submitted that the learned trial Court has also said in its order under challenge that as the prosecution has not submitted the video tapes and photographs to the Court under Section 173 Cr.P.C. in the category of the documents, there is no reason for the supply of the said documents. It is further submitted that injustice and violation of principle of natural justice will be done if the prosecution will be allowed to produce such evidence collected during the course of investigation, which are against the accused and denying the rest of the evidence by which the accused can be benefited. Inviting my attention towards the provisions of Section 173(6), Cr.P.C. learned counsel submitted that according to the said provisions if the police officer is of opinion that any part of any such statement is not relevant to the subjectmatter of the proceeding or then its disclosure to the accused is not essential in the interest 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. In the present case, no such request has been made to exclude that part from the copies to be granted to the accused and stating reasons for making such request. Therefore, the Court below has committed an error in rejecting the application.

In support of his arguments, learned counsel for the petitioners has relied upon the citations in the case of State of Tamil Nadu and another v. Abdullah Kadher Batcha and another, (2009) 1 SCC (Cri) 497; Kothari Filaments v. Commissioner of Customs, (2009) SCC (Cri) 705, S.J. Chowdharyv. The State, 1984 Cri LJ 864 (Del), Smf. Usha Dew v. State ofU.R, 1995 (32) ACC 124 and Ranjeet Singh v. StateofU.R, 1998 (36) ACC 337.

Learned Special counsel for the opposite party has strongly rebutted the arguments advanced by the learned counsel for the petitioner. Learned counsel in support of his arguments quoted the provision of Section 173(5) Cr.P.C. which is reproduced as under:

"When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate alongwith 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."

He further pointed out that three chargesheets were filed in this case and the first chargesheet was filed by then Investigating Officer Hosiyar Singh, who is now an accused in this case and is still absconding. The Investigating Officer, Hosiyar Singh ha.= done videography and took photographs on which the prosecution does not propose to rely. It is also argued that under Section 207

In view of the above, I am not inclined to interfere with the impugned order at this stage. However, during trial if the petitioners feel that the said videography and photographs are being relied upon by the prosecution, they will be at liberty to make an application before the Court concerned and the Court concerned shall decide the same by a speaking and reasoned order in accordance with law. It is made clear that the learned Trial Judge while deciding the application, will not be guided by any of the observations made in this judgment and will be free to form his own independent opinion in accordance with law.

With these observations, the petition is disposed of.