NEELESH JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Accused of offence under S.376(g), IPC, wanting to defend his liberty and honour, the petitioner had moved an application under S. 91, Cr. P.C. for seeking the production of certain documents which were available with the police but which the prosecution chose not to file with the charge- sheet. However, vide order dated 22-8-2005, the Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur dismissed the said application. Hence, this petition before us.

(2.) The brief facts of the case are that on 13-9-2004, the prosecutrix's father lodged a report at Police Station Murlipura, Jaipur. However, in the said report he did not claim any fact with regard to sexual exploitation of his daughter Miss Reena Sharma, by the accused-petitioner and by others. Subsequently, the prosecutrix lodged a complaint against the petitioner and others before the Mahila Thana and the Police Station, Murlipura, wherein she alleged sexual exploitation by them. On the basis of the com plaint lodged at Police Station Murlipura a formal FIR, MR No. 333/2004, was registered for offences under Ss, 342, 376(g), 323 and 328. IPC against the petitioner and others. Moreover, during the course of investigation, on information furnished by the accused-petitioner, the police had recovered certain photos, love letters between the prosecutrix and the accused-petitioner, some STD bills slips and a ledger book. In fact, the police had not only made a recovery memo of the said recovery, but had also prepared a site plan of the place of recovery. Thus, the police had in its possession the earlier report lodged by the prosecutrix's father, the report lodged by the prosecutrix at Mahila 'Thana, and the documents, which were recovered at the petitioner's instance. However, when the police filed the charge- sheet against the petitioner, it did not submit these documents along with the said charge-sheet. In case these documents were produced, they would probabilise the case of the accused that the prosecution had fabricated a case against him. Since these documents, which were in the custody of the police, were required by the defence, the accused-petitioner moved an application under S. 91 under the Criminal Procedure Code (henceforth to be referred to as the Code for short) praying that the prosecution be directed to produce these documents. However, vide order dated 22-8-2005, the learned Additional Sessions Judge dismissed the said application. Hence, the petition before us.

(3.) Mr. G. C. Chatterjee, the learned counsel for the petitioner, has argued that the investigating agency is duty bound to carry out an impartial investigation. While filing the charge-sheet, the investigating agency must disclose all the facts discovered by them, during the course of investigation, to the trial Court. The prosecution cannot be permitted to place a one sided story before the trial Court. Moreover, the petitioner is entitled to receive those documents which are in his favour, but which are being withheld by the prosecution. He further argued that these documents are needed for confronting the prosecutrix's father when he enters the witness-box. Thus, these documents, which would throw light on the case, are "necessary or desirable" for the purpose of the trial. According to the learned counsel, without realising the scope and ambit of S. 91 of the Code, without apprecialing the inter-relationship between S. 91 and S.173 of the Code, the learned trial Court has mechanically rejected the application under S. 91 of the Code.