No Fresh Material Can Be Produced Before Trial Court Without Making Application Under CrPC: Punjab & Haryana High Court

The Punjab and Haryana High Court has made it clear that no fresh material can be exhibited in the trial court without moving an application under relevant provisions of the Criminal Procedure Code (Cr.P.C.)The Court set aside the trial court's order allowing complainant's application to give specimen of signature to compare with the confessional statement of the accused booked for sexual assault under POCSO Act after conclusion of prosecution evidence.Justice Harpreet Singh Brar said,"it is of the utmost importance that if any fresh material is sought to be produced before the Court, the same is done after seeking its permission by making an application under the relevant provisions i.e., either under Section 91, 294, 311 of Cr.P.C. or by investigating agency by filing supplementary report under Section 173(8) Cr.P.C. or by the trial Court under Section 165 of the Indian Evidence Act, 1872."The Court also summarised the following principles:(i) Obtaining the handwriting or signature specimen of the accused under Section 311A Cr.P.C. during criminal proceedings is not hit by the bar of Article 20(3) of the Constitution of India.(ii) The words “proceeding under this Code” mentioned in Section 311A Cr.P.C should naturally include the stages of inquiry and trial and as such, the provisions can be invoked during investigation as well as during trial.(iii) Since the Special Court under the POCSO Act is the court of original jurisdiction, it has the power to pass order under Section 167 Cr.P.C., therefore, it certainly has power to deal with the application under Section 311A Cr.P.C. as there would be no occasion otherwise to entertain such an application by a Magistrate.(iv) No fresh material can be produced before the trial Court, without seeking its permission by making an application under the relevant provisions i.e., either under Section 91, 294, 311 of Cr.P.C. or by investigating agency by filing supplementary report under Section 173(8) Cr.P.C. or by the trial Court under Section 165 of the Indian Evidence Act, 1872.These observations came in response to the plea of a man booked for allegedly kissing a 2 months old daughter of the complainant on her lips and private parts under Sections 6 and 10 of the POCSO Act and Sections 354, 354-A of the IPC. The accused had challenged the order of the ASJ Court whereby application filed by the complainant seeking specimen of signature under Section 311A Cr.P.C. to compare with the alleged self-incriminating statement was allowed. The complainant had exhibited the self-incriminating statement without filing any application, after the conclusion of the prosecution evidence.After hearing the submissions, the Court noted that to exhibit the confessional statement no application was filed by the prosecution or complainant by invoking the relevant provisions and yet the Court allowed to mark it as exhibit."Such an approach adopted by the learned trial Court is thoroughly a bad precedent," said the Court.The Court also noted that earlier on plea of complainant to allow producing confessional statement of the accused, the Court had granted the liberty to avail the remedy available under Section 311 Cr.P.C. However, the Trial Court rejected the plea under Section 311 Cr.P.C.The justification given by the trial Court while rejecting the plea under Section 311 Cr.P.C. that the provisions of Section 311 Cr.P.C. are of a restricted sphere whereas Section 231 Cr.P.C. allows the Court to examine all such evidence produced by the prosecution “as is essential for just decision of the case”, it noted."The aforementioned reasoning is not in consonance with the scope of Section 231 Cr.P.C. and certainly improper and unpalatable. Section 231 Cr.P.C. provides for the power of the Judge to take all such evidence which may be produced in support of the prosecution," said the Court.It further added that the only discretion vested with the Judge is to defer the cross-examination or recall any witness for further cross-examination. Section 231 Cr.P.C. does not bestow any such discretion to the trial Court to take such evidence which it deems essential for the just decision of the case.The Court noted that the document was produced after conclusion of the prosecution evidence and the matter was fixed for recording of the statement of the petitioner under Section 313 Cr.P.C."The conduct of the learned trial Court in exhibiting the said document, has virtually disrobed the petitioner of his right to effectively cross-examine the complainant," it opined.Justice Brar observed that bypassing of procedural justice often prejudices the trial and impedes the constitutional right of the parties to free and fair trial. "While it is true that procedure is the handmaid of justice, however, pragmatic judicial practice requires that only when it is expedient in the interest of justice and does not cause prejudice to the prosecution or the defence, that deviation from the procedure may be made," the judge...

No Fresh Material Can Be Produced Before Trial Court Without Making Application Under CrPC: Punjab & Haryana High Court

Aiman J. Chishti

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