At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE B.M. LAL & THE HONOURABLE MR. JUSTICE B.K. SHARMA
For the Appearing Parties: Ashok Khare, S.V. Goswami, Vasietha Tewari, Advocates.
B.M. LAL, J.
Petitioner Khacher Mal Agrawal seeks an order, direction or writ in the nature of certiorari quashing the F. I. R. dated 25. 4. 93 (contained in Annexure 7 to the writ petition) whereby Case Crime No. 124 of 93, under Section 406, I. P. C. has been registered at Police Station Sadabad against the petitioner.
2. On 20. 5. 93 petitioner's arrest was stayed. This petition was listed for hearing on 29. 10. 93 on which date an objection was raised as to from which source the petitioner procured copy of the F. I. R. Sri Goswami, learned senior coun
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el representing the petitioner made a statement at the Bar that the copy of the F. I. R. has been obtained from the Court. Upon this statement the petitioner was directed to file his affidavit disclosing the source from which the copy of F. I. R. was obtained. 3. No. doubt, the application and writ ten submission was filed on a date sub sequent to the date of hearing but no source of obtaining the copy of F. I. R. is disclosed therein. Simply it is stated that it is obtained from the Court. Even this is not stated as to whether true copy, Photostat copy or certified copy was obtained for which any application was made by the petitioner in the Court. 4. Time and again this Court has warned such petitioners that before sub mission of the chargesheet as contemplated under Section 173 of the Code of Criminal Procedure (for short the Code), the new method evolved to approach the Investigating Agency and to obtain copies of documents and material collected during the course of investigation and then to file the same as Annexure to the writ petition and bail petitions, is not permissible under law and therefore, the same is to be deprecated. Despite that the trend is continuing. 5. Indeed copy of the F. I. R. is not a privileged document as, soon after lodging of the F. I. R. in cognizable offences, the officer Incharge of Police Station concerned is required to send a report forthwith to the Magistrate empowered to take cognizance of the offence and thus when the copy of the F. I. R. is transmitted to the concerned Court, its certified copy can certainly be obtained from the Court. But in the instant case the petitioner could not dare to make statement on oath that he has legally obtained certified copy of the F. I. R. from the Court which is annexed as annexure to the writ petition. 6. In this connection we may observe that if by any mode which is not recognised under the Code of Criminal Procedure or Evidence Act, copy of any document or material found during the course of investigation is obtained before filing of the chargesheet as contemplated under Section 173 of the Code; the irresistible conclusion would be that the person concerned has approached the investigating agency so as to tamper with the investigation being launched against him and on this ground alone such bail petition or writ petition in which such copy is annexed, deserves to be dismissed.7. Assuming that the material collected during the course of investigation as observed above is not privileged one and such material including case diary statements comes within the purview of public document under Section 74 of the Evidence Act, even then it has to be seen whether accused persons are entitled to obtain copies of such documents at the stage and to file the same with the bail petitions or writ petitions as the case may be. 8. In this regard the provisions of Section 173 (5) and (6) read with Sections 172 (3), 207 and:208 of the Code are emphatic. These provisions if examined care fully, prohibit supply of such copies to the accused persons prior to the stage of Section 173 i. e. at the stage of Section 173 (7) read with Sections 207 and 208 of the Code. 9. This principle is well settled that when two Sections expressed in affirmative language provide contrary to each other, the later or special always abrogates former or general and thus the provisions of Section 74 of Evidence Act being of general nature cannot prevail over the provisions of Section 173 (5) and (6) and Section 172 (3) of the Code which are of special nature, rather the provisions of Section 173 (5) and (6) and Section 172 (3) of the Code would prevail over the provisions of Section 74 of the Evidence Act and on this analogy legally, copies of such documents cannot be sup plied to the accused persons before submission of the chargesheet and thus, how such copies can be filed with writ petitions or bail petitions before submission of the charge-sheet. 10. The provision of Section 173ofthe Code is emphatic postulating that there is no legal right available in favour of accused to ask for supply of copies of such material collected during the course of investigation before the stage of Clause 7 of Section 173 or the stage of Sections 207 and 208 of the Code i. e. till the chargesheet is not sub mitted and even mandamus cannot be is sued for the purpose till that stage, other wise the sanctity of the statutory investigation would be jeopardised (See Atiq Ahmad v. State of U. P. and others in Writ Petition No. 469 of 1995 JIC, reference matter, judgment delivered by one of us (Justice B. M. Lal) wherein State of Madras v. G. Krishna, AIR 1961 Madras 92 (FB) is followed. 11. This being the law, as discussed above this Court is of the considered opinion that since the source from which the copy of F. I. R. is obtained by the petitioner has not been disclosed hence this Court is not satisfied that the copy of F. I. R. has been obtained by legal means, consequently writ petition is dismissed. 12. Registry of the Court is directed to circulate copy of this judgment to all the District and Sessions Judge in Uttar Pradesh for necessary compliance. Petition dismissed.
"1997 JIC 300"