Compliance of section 207 crpc not possible as statements u/s 161 crpc reported by io/sho/dycp- lost
PRADEEP KUMAR BANSAL
(Querist) 27 November 2012
This query is : Resolved
QUERRY :-
- IT IS SUBMITTED BY ACCUSED BEFORE THE REVISIONAL COURT
- THAT COMPLIANCE OF SECTION 207 Cr.P.C. IS MANDATORY
- A FAIR TRIAL IS NOT POSSIBLE AS THE COPIES OF STATEMENTS OF WITNESSES U/S 161 Cr.P.C. CANNOT BE RECONSTRUCTED AS POLICE FILE IS NOT TRACEABLE AS
REPORTED BY I.O./S.H.O./Dy.C.P.
- THE POLICE REPORT WAS NOT FILED AS PER SECTION 173 Cr.P.C, THEREFORE IT SHOULD BE REJECTED
- THE PROSECUTION CANNOT OPEN THE CASE BEFORE THE SESSIONS COURT AS THE COMMITAL HAS NOT BEEN MADE U/S 209 Cr.P.C WHICH CAN BE MADE ONLY AFTER COMPLIANCE OF SECTION 207 Cr.P.C.
- THE FAIR TRIAL CAN NOT BE HELD AND THEREFORE ACCUSED PERSONS BE DISCHARGED
WHETHER ANY JUDGEMENTS OF SUPREME COURT ARE THERE IN SUPPORT OF THE ABOVE, PLEASE GIVE CITATIONS
THE DETAILS OF THE CASE ARE AS UNDER :-
- AN FIR WAS LODGED AGAINST THE THREE ACCUSED PERSONS U/S 308 IPC IN 1994. THE CHARGE SHEET WAS FILED IN THE MAGISTRATE’S COURT IN MAY 1995.
- TWO ACCUSED WERE PROVIDED 15 DOCUMENTS OUT OF TOTAL 33 FILED WITH CHARGE SHEET. ONE ACCUSED WAS NOT PROVIDED ANY DOCUMENTS AT ALL.
- THE ACCUSED IMMEDIATELY MOVE ONE APPLICATION BEFORE THE MAGISTRATE FOR PROVIDING THE REMAINING DOCUMENTS GIVING THE LIST OF THE SAME
- THE ACCUSED ALSO MOVED ANOTHER APPLICATION THAT STATEMENTS OF WITNESSES U/S 161 Cr.P.C. HAVE NOT BEEN PROVIDED.
- THE SAME WERE NOT PROVIDED TO THE ACCUSED AND WITHOUT COMPLIANCE OF SECTION 207 Cr.P.C., THE CASE WAS COMMITED TO THE SESSIONS COURT IN 2004.
- THE ACCUSED PERSONS FILED APPLICATIONS BEFORE SESSIONS COURT THAT COMPLIANCE OF SECTION 207 Cr.P.C. HAS NOT BEEN MADE BY MAGISTRATE BEFORE COMMITTAL OF THE CASE AND COPIES OF SEVERAL DOCUMENTS AND STATEMENTS OF WITNESSES U/S 161 Cr.P.C. HAVE NOT BEEN PROVIDED TO THE ACCUSED.
- THE SESSIONS COURT SUMMONED THE I.O. WHO REPORTED THAT THE POLICE FILE IS NOT TRACEABLE AND THEREFORE HE IS UNABLE TO PROVIDE COPIES OF STATEMENTS OF WITNESSES U/S 161 Cr.P.C. (WHICH WERE NOT FILED WITH THE CHALLAN)
- THE SESSIONS COURT SUMMONED THE S.H.O. ALSO WHO REPORTED THAT THE POLICE FILE IS NOT TRACEABLE AND CASE DIARY IS NOT AVAILABLE IN THE VRK AND THE RECORD CAN NOT BE RECONSTRUCTED AND THEREFORE HE IS UNABLE TO PROVIDE COPIES OF STATEMENTS OF WITNESSES U/S 161 Cr.P.C. (WHICH WERE NOT FILED WITH THE CHALLAN)
- THE SESSIONS COURT SENT BACK THE CASE TO MAGISTRATE IN 2011 FOR COMPLIANCE OF SECTION 207 Cr.P.C. AND COMMIT THE CASE AS PER MANDATE OF Cr.P.C. AND SEEK ASSISTANCE OF TOP POLICE OFFICER
- THE MAGISTRATE SUMMONED Dy.C.P. WHO ALSO REPORTED THAT THE POLICE FILE IS NOT TRACEABLE AND CASE DIARY IS NOT AVAILABLE IN THE VRK AND THE RECORD CAN NOT BE RECONSTRUCTED AND SHO CRIME REGISTER HAS BEEN DESTROYED AND THEREFORE HE IS UNABLE TO PROVIDE COPIES OF STATEMENTS OF WITNESSES U/S 161 Cr.P.C. (WHICH WERE NOT FILED WITH THE CHALLAN)
- THE MAGISTRATE RE-COMMITTED THE CASE TO SESSIONS COURT IN 2012 WITHOUT COMPLIANCE OF 207 Cr.P.C. BUT RECORDING IN THE COMMITTAL ORDER THAT COMPLIANCE OF SECTION 207 Cr.P.C. HAS BEEN DONE AND COPIES OF STATEMENTS OF WITNESSES U/S 161 Cr.P.C. ARE NOT REQUIRED TO BE PROVIDED TO ACCUSED AS THOSE WERE NOT FILED WITH THE CHALLAN.
- THE ACCUSED HAVE FILED REVISION U/S 397 Cr.P.C. AGAINST NON-COMPLIANCE OF ORDER OF 2011 OF SESSIONS COURT BY THE MAGISTRATE.
PRADEEP KUMAR BANSAL
(Querist) 28 November 2012
- THAT COMPLIANCE OF SECTION 207 Cr.P.C. BEFORE COMMITTAL OF A CASE TO SESSIONS COURT IS MANDATORY BUT WHEN THE COPIES OF STATEMENTS OF WITNESSES U/S 161 Cr.P.C. HAVE NOT BEEN PROVIDED TO THE ACCUSED AND ARE REPORTED TO BE UNTRACEABLE AND CANNOT BE RECONSTRUCTED AS POLICE FILE OR CASE DIARY IS NOT TRACEABLE, AS REPORTED BY I.O./S.H.O./Dy.C.P. TO THE COURT, WHAT IS THE LEGAL POSITION ?
WHETHER THE ACCUSED WILL HAVE TO FACE TRIAL OR WILL BE DISCHARGED AS THE CASE CAN NOT BE COMMITTED TO SESSIONS COURT FOR TRIAL AND THE PROSECUTION CANNOT OPEN THE CASE BEFORE THE SESSIONS COURT UNLESS THE COMMITTAL HAS NOT BEEN MADE U/S 209 Cr.P.C WHICH CAN BE MADE ONLY AFTER COMPLIANCE OF SECTION 207 Cr.P.C..
AS THE FAIR TRIAL IS NOT POSSIBLE AND CAN NOT BE HELD. WHETHER THE ACCUSED PERSONS BE DISCHARGED BY THE COURT ?
WHETHER ANY JUDGEMENTS OF SUPREME COURT ARE THERE IN SUPPORT OF THE ABOVE, PLEASE GIVE CITATIONS
Raj Kumar Makkad
(Expert) 28 November 2012
Not providing the statements of the witnesses recorded under section 161 of Criminal Procedure code will ultimately have a direct bearing on the trial itself. The duty of the magistrate is to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 Cr.P.C. is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The fact that many of the accused persons were not provided with copies of the chargesheet and the other relevant documents, as indicated in Sections 207 and 208 Cr.P.C., seriously affects the right of an accused to a free and fair trial.
[2011] 10 S.C.R. 1 2
JAHID SHAIKH & ORS.
v.
STATE OF GUJARAT & ANR.
(TRANSFER PETITION (CRL) NO.55 OF 2010)
R.K Nanda
(Expert) 28 November 2012
contact local lawyer.
ajay sethi
(Expert) 28 November 2012
agree with makkad
