S.91 CrPC | Correspondence Between IO And His Senior Not Part Of Chargesheet, Cannot Be Summoned: Karnataka High Court

The Karnataka High Court has said that reports prepared by an investigating officer in discussion with his higher officers, before filing chargesheet, cannot be produced before the court for the purpose of evidence.

A single judge bench of Justice K Natarajan said “Except the documents produced by the investigation officer under Section 161 of CrPC, the remaining documents cannot be summoned except for contradiction under Section 145 of Evidence Act.”

Accused Siddappa B H, had challenged the order of the special court rejecting his application under Section 91 CrPC for summoning the alleged three reports submitted by the investigation officer for the purpose of getting permission to prosecute the case.

Further he wanted to cross examine the investigating officer, and challenged the order of dismissal of the application for summoning himself to be examined as witness and also summoning his wife as witnesses, apart from the other Eight witnesses.

The prosecution opposed the plea saying the investigation officer has prepared some reports in discussion with the higher officer. The said documents are correspondence within their administration and since they are confidential, they cannot be produced before the Court for the purpose of evidence. It is the opinion formed by the officials during investigation that cannot be a part of the case and therefore, it cannot be allowed to verify the same by the petitioner, it was submitted.

So far as summoning the investigating officer further cross examination is concerned, it was submitted that he had retired and is now suffering from Parkinson's disease and he has lost his memory.

Findings:

The bench noted that the police have already investigated the matter and filed chargesheet long back in the year 2008 itself. FIR was registered in the year 2005 and trial has been pending for almost 15 years. The investigation officer was examined in full by the prosecution and cross examined by the accused.

Thus rejecting the plea for summoning of reports, the bench said, “Any investigation papers, which are in the case diary of the investigation, cannot be summoned or summoning the same for contradiction under Section 145 of the Evidence Act, is bar under Section 172(3) of Cr.P.C.”

It added “The different reports said to be prepared by P.W.79, (investigating officer) on discussion with higher officer, before filing chargesheet, cannot be summoned, because they are the part of the investigation, but not the part of charge sheet or final report under Section 173(2) of Cr.P.C. Therefore, for the purpose of summoning the documents under Section 91 of Cr.P.C. and summoning P.W.79 for further cross examination, cannot be allowed.”

However, the court allowed the plea for summoning himself as witness and also examining his wife as witness. It said “Petitioner-accused has already examined two witnesses on his behalf, but the petitioner-accused is the better witness for himself to explain or to rebut the evidence of the prosecution. If he does not enter the witness box, there is every possibility of drawing adverse inference against him is not ruled out and it is the case of disproportionate assets, where the property of the wife is also included apart from the property of the petitioner accused.”

Finally the court directed the trial court to take the matter on a day today basis and dispose it of in accordance with law.

Case Title: Siddappa B H And The State By Lokayukta Police

Case No: CRIMINAL PETITION NO.2954 OF 2023 CONNECTED WITH CRIMINAL PETITION NO.2906 OF 2023, CRIMINAL PETITION NO.2908 OF 2023

Citation: 2023 LiveLaw (Kar) 181

Date of Order: 18-05-2023

Appearance: Advocate Shankar P Hegde for petitioner.

Special Counsel B.S. Prasad for Lokayuktha for respondent.

Click Here To Read/Download Order