DELHI HIGH COURT REITERATES ESSENTIAL ELEMENTS OF FREE AND FAIR POLICE INVESTIGATION AND TRIAL PROCEEDINGS

The Delhi High Court in a matter of Mr. Arvind Kejriwal and Anr. vs State NCT of Delhi passed a Judgment dated 21-10-2020 and held that the #investigatingagency is duty bound to conduct free and fair #investigation under Section 173 of Code of Criminal Procedure 1973 (CrPC) and bring to the notice of the #Court all #evidences without picking and choosing the evidence that supports the party.

In this case, the Accused had filed an Application under Section 207 of CrPC before the Patiala House Court for supply of certain deficient documents including the witness statements recorded during the investigation in FIR No 54/2018. But the Court declined to supply witness statement on the ground that it was an oral examination and thus, there were no written records.

Aggrieved, the Accused filed a Revision Petition before the Learned Additional Sessions Judge, New Delhi who passed an Order dated 24-07-2019 and dismissed the Revision Petition on the ground that it was an oral examination and was noted by the Investigating Officer in the Case Diary. Hence, it cannot be considered a statement under Section 161 CrPC and thus, it cannot be given to the Accused.

Section 161 of CrPC is reproduced below:

161. Examination of witnesses by police:

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Aggrieved, the Accused filed a Petition under Article 227 of the Constitution of India seeking quashing of the Impugned Order dated 24-07-2019 as the Learned Additional Sessions Judge, New Delhi did not supply crucial documents required in the Application filed under Section 207 of CrPC on behalf of the Accused.

The Delhi High Court made the following observations in this case:

1- The Investigating Officer is duty bound to supply all documents pertaining to a case to the Accused. In the event that he has supplied only those evidences/documents that support the prosecution, then he has to supply such other documents that also support the Accused.

2- It is the duty of the investigating agency under Section 173 CrPC to do fair and free investigation by bringing to the notice of the Court all the evidences collected during the investigation without picking and choosing the one which only favors the prosecution and does not support the Accused.

3- The Court has a duty to supply all the documents to the accused under Section 207 CrPC, even if the same were not relied upon by the prosecution. This is to ensure that the Accused is able to properly defend himself.

4- In the present case, although the oral examination was not recorded in written form, the said statement has been referred to and mentioned in various documents and thus, it acquires the status of Section 161 CrPC statement.

Therefore, the Delhi High Court held that it is the duty of the Investigating Agency to furnish all documents/evidence to the Court without picking and choosing those documents that support either party, because it does not have any power to appreciate the evidence, as it rests with Court. This would also enable the Court to discharge its duty under section 207 of Cr.P.C. by furnishing copies of such documents to the Accused.

Hence, the Delhi High Court set aside the Impugned Order dated 24-07-2019 of the Learned Additional Sessions Judge, New Delhi and directed the Trial Court to consider the witness statement recorded in the Case Diary as Section 161 CrPC statement.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer & Allied Services