Trial Court Cannot Examine Witness At Pre-Cognizance Stage To Generate Fresh Evidentiary Material: Allahabad High Court

The Allahabad High Court has held that a trial court cannot examine a witness at the pre-cognizance stage to generate fresh evidentiary material, as such a course is "wholly" outside the scheme of Section 190 CrPC.A Bench of Justice Santosh Rai observed that a court which has not yet taken cognizance does not possess a "free-standing power" to collect additional or corroborative evidence, as that function belongs to the investigating agency, and its role at that stage is confined to applying its judicial mind to the material already on record. The single judge made these observations while allowing a plea challenging an order of a Trial Court in Saharanpur. Essentially, the Presiding Judge had examined the Medical Officer in open court before taking cognizance and relied upon his statement to add Section 307 IPC to the matter. It also directed the Chief Medical Officer to institute departmental proceedings against the doctor on the ground that the injury report was prepared by him in a faulty manner prejudicial to the case of prosecution."The learned Presiding Officer gravely erred in law by summoning and examining a medical officer at the pre-cognizance stage, a procedure entirely alien to the Code of Criminal Procedure, 1973, and without any backing of statutory provisions. Such unwarranted procedural shortcuts not only undermine the sanctity of judicial proceedings but also result in an abuse of the process of law", the bench observed in its order as it set the same aside.Case in brief As per the prosecution's case, an alleged assault took place over an agricultural land dispute between the parties. After the investigation, the police submitted a charge sheet under Sections 323, 324, 452, 504 and 506 of the IPC along with the provisions of the SC/ST (Prevention of Atrocities) Act. The injury report recorded 1 injury caused by a sharp-edged weapon and the remaining 4 by a blunt weapon. Before the trial court took cognizance, the Special Public Prosecutor moved an application seeking the addition of Section 307 IPC to the matter.In support of that application, the trial court examined the Doctor who prepared the injury report in open court. During his examination, the doctor clarified that all 5 head injuries had been caused by a sharp-edged weapon, that 4 injuries had erroneously been attributed in the written injury report to a blunt weapon, and that the injuries were serious and potentially fatal. Relying on this statement, the trial court accepted the prosecution's application and took cognizance of the offences reflected in the charge-sheet along with Section 307 IPC. Challenging this order, the accused moved the High Court not only to challenge the summons but also contending that the Trial Court stepped outside the record submitted by the IO under Section 173(2) CrPC and examined a witness to generate fresh material on which a graver charge carrying a possible sentence of imprisonment for life was addedHigh Court's observations At the outset, the High Court observed that on receipt of a police report under Section 173(2) CrPC, the court has only limited options. It may take cognizance under Section 190(1)(b) CrPC on the basis of the material collected during investigation, disagree with the conclusions of the investigating officer while accepting the facts placed on record, or direct further investigation under Section 173(8) CrPC. However, the bench clarified that "what is not among these options, at the stage anterior to cognizance, is for the Court itself to summon and orally examine a witness named in the charge-sheet in order to supplement or improve upon the material the Investigating Officer has placed on record". Referring to the Supreme Court's decision in India Carat (P) Ltd. v. State of Karnataka 1989, the Court reiterated that a Magistrate takes cognizance on the basis of the case diary, statements recorded under Section 161 CrPC and other material collected during investigation, and not on fresh testimony taken by the court itself. The Court further clarified that if a medical report requires correction after submission of the charge-sheet, the proper course is for the Investigating Officer to seek a corrected or supplementary medical opinion under Section 173(8) CrPC before cognizance, or for the doctor to clarify the matter while deposing as a prosecution witness after charges are framed. Instead, in the present case, the trial court examined the doctor before cognizance "outside any of these statutory channels" at the instance of the prosecution's application seeking addition of Section 307 IPC, and that such a course of action was not available to it in law.Justice Rai also expressed his "deep displeasure" with the then Presiding Officer of the trial court over the procedure adopted by him.The bench clarified that since the impugned order did not indicate that the trial court had independently applied its mind to the original injury report, the case diary, and the...

Trial Court Cannot Examine Witness At Pre-Cognizance Stage To Generate Fresh Evidentiary Material: Allahabad High Court

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Trial Court Cannot Examine Witness At Pre-Cognizance Stage To Generate Fresh Evidentiary Material: Allahabad High Court

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