[S.349 CrPC] Court Can Sentence Witness To A Maximum Of 7 Days Imprisonment Upon Unexplained Refusal To Produce Material Evidence: Gujarat High Court

The Gujarat High Court has quashed the conviction of a police inspector, sentenced to seven days of simple imprisonment, for allegedly failing to produce material evidence in a trial.

The Court observed that as per Section 349 CrPC, the Court, after recording reasons, may sentence a witness for a term not exceeding seven days simple imprisonment, unless in the meantime, the witness produces the document or thing.

Justice SV Pinto presiding over the case, emphasising the conditions required under Section 349 of the Code of Criminal Procedure (CrPC) for such a conviction, noted, “On a plain reading of the provisions of section 349 of the Code of Criminal Procedure, it appears that the Court must be satisfied that : (a) the witness is called to produce a document or thing before a criminal Court; (b) the witness refuses to produce the document or thing in his possession or power which the Court requires him to produce; and (c) despite reasonable opportunity, the witness fails to offer any reasonable excuse for such refusal.”

“It is required to be noted that after having satisfied the above referred conditions, the Court, after recording reasons, may sentence a witness for a term not exceeding seven days simple imprisonment, unless in the meantime, the witness produces the document or thing. It is also pertinent to note that upon persistent refusal by the witness, the Court is empowered to initiate action for contempt against such person as per the procedure laid down in section 345 of Code of Criminal Procedure. It is, therefore, manifestly clear that Section 349 of the Code of Criminal Procedure presupposes that the document is in power and possession of the witness who is required to produce the same,” Justice Pinto added.

The appellant, serving as a Police Inspector at Jawaharnagar Police Station in Vadodara, received a notice on March 20, 2024, from the 9th Additional District & Sessions Judge, Vadodara. This notice was in relation to a sessions trial involving an FIR registered in 1990 for offences under sections 147, 148, 149, 307, 325, 324, 323, 427, 506, and 188 of the Indian Penal Code, 1860, and Section 135 of the G.P. Act. The appellant was asked to show cause as to why action should not be taken against him under section 349 of the Code of Criminal Procedure for failing to produce the muddamal (material evidence) in the trial.

In response to the notice, the appellant submitted a report to the trial court on March 27, 2024, explaining that he was occupied with upcoming general election duties alongside BSF personnel, which prevented his attendance.

The 9th Additional Sessions Judge, Vadodara, subsequently found the appellant guilty of noncompliance and breach under section 349 of the Code of Criminal Procedure. The appellant was sentenced to seven days of simple imprisonment.

The appellant, dissatisfied with this decision, filed a Criminal Appeal before the High Court. In the appeal, the appellant argued that the trial court did not properly consider the report submitted on March 27, 2024. He claimed that the trial judge failed to appreciate the report appropriately, and the order did not reflect any consideration of its contents. Therefore, the appellant contended that the conviction order should be reversed.

The primary question considered by the Court was whether the appellant had violated the provisions of Section 349 of the Code of Criminal Procedure (CrPC).

The Court examined the provisions of Section 349 CrPC, which deals with the imprisonment or committal of a person refusing to answer or produce a document. It was noted that an FIR was registered in 1990 at the Jawahar Police Station in Vadodara, and the muddamal (seized property) was taken by the Investigating Officer at that time.

The Court highlighted that, according to a report dated April 19, 2024, by Mr. J.C. Kothia, Deputy Police Commissioner, Zone-01, Vadodara City, the appellant was on duty on March 21, 2024, and appeared before the Mangrol Court, Surat. The appellant also performed duties in police bandobast related to the 10th and 12th Standard examinations on March 22, 2024, and was subsequently engaged in general election duties.

The Court noted that the same report mentioned that Court duty staff Sureshbhai Kalubhai, Buckle No. 3040, appeared before the trial Court on March 27, 2024. However, the trial Court refused to accept the muddamal, insisting on the appellant's presence with the muddamal. It was also reported that the muddamal had eventually been produced before the trial Court.

The Court further observed that the appellant's report submitted on March 27, 2024, to the trial Court explained his engagements in other duties and the absence of any evidence suggesting a deliberate refusal to produce the muddamal. The Court stated that without such evidence, action under Section 349 CrPC could not be initiated against the appellant.

Emphasising the legal position established by multiple decisions of the Apex Court, the Court underscored that Section 349 CrPC, being punitive, should be applied sparingly and only when there is a deliberate refusal to comply with a Court's order without a reasonable excuse.

In this case, the Court noted that the appellant's report justified his actions and showed no intent to defy the Court's order. Therefore, the Court concluded that the appellant did not breach the provisions of Section 349 CrPC.

As a result, the Court answered the question in the negative, allowed the appeal, and quashed the impugned order passed by the 9th Additional Sessions Judge, Vadodara, thereby disposing of the Criminal Misc. Application.

Case Title: Ashokbhai Bhurjibhai Mori @ More Versus State Of Gujarat

LL Citation: 2024 LiveLaw (Guj) 76

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