Delhi HC Quashes Sessions Court Order Rejecting Delhi CM Kejriwal's Plea Seeking Statement Of VK Jain In Chief Secretary Assault Case

A Single-Judge Bench of Justice Suresh Kumar Kait presided over the matter.

FACTS OF THE CASE

The Petitioner herein had filed an Application under Section 207 of CrPC for supply of certain deficient documents, including the copy of the statement of one witness, VK Jain recorded on 21^st February, 2018, and the audio/video recording of the examination of the Petitioners.

The Trial Court declined to supply the copy of the statement of VK Jain and held that as per prosecution, no statement under Section 161 of CrPC was recorded on 21.02.2018 and therefore, the same could not be supplied.

A Revision Petition was accordingly filed before the Trial Court, but the same was disposed of stating that as it was a record of oral examination by the IO and was noted in the case diary, it could not constitute a statement under Section 161 and therefore, could not be given to the accused. However, it could be used during the trail as an aid by the Court.

Further, as the Revisionists could not show any provision of law entitling them to their own statements during interrogation, this prayer was also declined, with the liberty to call for the recordings during the trial if the same was deemed necessary for production by the Trial Court. 

ARGUMENTS ADVANCED

Senior Advocate N. Hariharan, appearing on behalf of the Petitioners, submitted to the Delhi High Court that impugned order categorically stated that VK Jain had been examined in-depth and that the statement was being withheld because it did not suit the prosecution case.

"…they are trying to conceal/withheld the crucial part of evidence which is against the principle of 'Criminal Jurisprudence' and in violation of the basic principle of natural justice, free and fair trial. A plain reading of Section 207 CrPC makes it amply clear that under this provision the accused is entitled to have right to take the complete copy of the chargesheet and other documents in regarding of the case from the prosecution".

It was submitted that there existed an obligation on the Magistrate to see that all the documents which are necessary for the accused for proper conduct of his defense are furnished to him well before the trial and the prosecution cannot pick and choose. Hariharan referred to the case of Shakuntala v. State of Delhi (2007) to underline to the legal right to an impartial and free trial.

It was also argued that a conjoint reading of Section 173(5), 173(6) and first proviso attached to Section 207 of CrPC, leaves no scope of doubt that it is the bounden duty of the police officer to forward to the Magistrate all the statements mentioned in Section 173(5)(b) without any exception. The discretion lies with the Magistrate to allow the request of withholding of evidence.

Senior Advocate Sidharth Luthra, appearing on behalf of Respondent No. 2/Complainant, submitted that on 21^st February, despite VK Jain being called for examination, no statement under Section 161 had been recorded. Further, statements mentioning 21^st September were in fact referring to 22^nd and the 21^st was a typographical error.

He further argued that "under Section 173(5) and (6) and Section 207, what is to be supplied to an accused are the specified documents and no more. It is what the Prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and which the Prosecution does not choose to rely upon".

Luthra also raised the point as to whether Manish Sisodia, having not even sought the documents under Section 207, could move the Revision Petition or the plea before the High Court. It was only to overcome the hurdle of maintainability that the Petitioner added Arvind Kejriwal, and therefore, the plea was unsustainable.

It was also submitted by Luthra that records of the Case Diary could not be sought due to the bar imposed by Section 172(3). Multiple cases such as State of NCT of Delhi v. Ravi Kant Sharma (2007) and Sunita Devi v. State of Bihar & Anr. (2005) relied upon to buttress this submission. It was further argued that it was not obligatory on part of the police officer to record any statement made to him and he may do so if he feels it necessary.

Luthra concluded his arguments by referring to the 41^st Law Commission Report wherein the Commission justified the wide discretion granted to the police-officer to record only those statements which may aid the prosecution during the trial and that any apprehension that the police officer may misuse his discretion was not well-founded.

HELD

Justice Kait heard the arguments and considered the question as to whether the statement of VK Jain recorded on 21^st February, 2018, amounted to statement recorded under Section 161 of the Code.

The Court noted that it was not in dispute that VK Jain had been called on 21.02.2018 and was examined by the IO which was then recorded in the case diary. It was also noted that the Case Diary itself stated that the witness had been examined in depth and that a report had been prepared.

Justice Kait then refers to Section 161 of the Code and the case of Ashutosh Verma v. CBI (2014) to observe that even at the stage of scrutiny of documents unde Section 207, the Court shall supply all the documents to the accused, even if the same is not relied upon by the Prosecutin.

"Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused".

The Court then goes on to agree with the submissions of Hariharan which state that it is the bounden duty of the police officer to forward all the statements to the Magistrate, without any exception so as to enable the Magistrate to discharge his duty under Section 207 of the Code by furnishing copies of such documents to the accused.

"It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them".

Therefore, noting that if the statement was not taken into consideration at the time of passing the order on charge which was a part of the police record, it could then not be relied upon during the trial and the accused would not be able to benefit from the same.

The judgment concludes with an observation on the issue of source of document and states that if the evidence is relevant, it is admissible irrespective of how it is obtained.

Finding merits in the present plea, the Court set aside the impugned order of the Trial Court.

"Consequently, the Trial Court is directed to consider the statement dated 21.02.2018 of VK Jain, which is part of 'Case Diary' and placed on record by the accused, at the time of passing the order on Charge".