IN THE COURT OF SESSIONS, BORIVALI DIVISION,
DINDOSHI, GOREGAON, MUMBAI
EXHIBIT NO. OF 2019
IN
SPECIAL POSCO CASE NO. 330 OF 2019
(C.R. NO.480 OF 2019)
Taukir @ Touqeer Hasan Khan
(Presently lodged at Thane Jail)… …Applicant
Versus
State of Maharashtra
(Through Malvani Police Station)… ….Complainant
APPLICATION FOR ISSUING APPROPRIATE DIRECTIONS TO
SUPPLY COPIES OF POLICE REPORT AND OTHER DOCUMENTS
UNDER SECTION 207/173 OF CR.PC.
The Applicant in the above-mentioned matter respectfully submits as
under:-
1. That, the Applicant is a named Accused in Crime Record No. 480
of 2019 registered with Malvani Police Station, District- Mumbai.
Applicant was arrested on 10th June, 2019 and has been in judicial
custody for more than 70 days. Post completion of the investigation,
the Final Report/charge sheet under section 173(5) Code of Criminal
Procedure (‘Cr.P.C’ or the ‘Code’) has been filed on 13.08.2019 and
the case has been numbered as Sessions Case No. 330 of 2019.
2. It is further submitted that despite filing of charge-sheet for over
a week ago, the investigation authorities has not been given the copy
of Charge-sheet along with other documents relied upon by the
Respondent/prosecution to the above applicant-accused in the said
case. It is most respectfully submitted that the requirements of
Section 207 of Cr.P.C cast an obligation on Respondent/prosecution to
provide a copy of Charge-sheet along with other relevant documents
to Accused or his pleader forthwith and free of cost. It is the duty
of Hon’ble Court to ensure that the said requirements are fulfilled in
law and spirit; to guard the right of Accused to have a fair trial
guaranteed under Article 21 of the Constitution.
3. It is respectfully submitted that Article 22(1) of the Constitution
read with Section 303 of Cr.P.C, recognise the fundamental right of
the Accused to appoint a pleader of his choice to defend himself. It is
grievance of the Applicant that despite appointing the pleader in
accordance with the law, the Investigating Agency/Respondent has
refused to give a copy of Charge-sheet to his pleader.
4. It is a settled position of law that the serious the charge, the
more is the responsibility of the Hon’ble Court to ensure that every
possible opportunity is given to Accused to defend himself. The first
and most basic requirement of the same is providing a copy of
charge-sheet to the Accused or on his behalf to his pleader so that his
pleader can take constructive steps to defend the Accused.
5. The Code defines the word ‘pleader’ under Section 2(q) as the
person authorised by law to practise in the said Court. The directions
issued by Hon’ble High Court in Criminal manual require that pleader
should file ‘Vakalatnama’ before defending the Accused. A conjoint
reading of above shall leave no doubt in the mind of Hon’ble Court
that after filing ‘Vakalatnama’ as per relevant rule/procedure, the
pleader gets the authority under law to represent, defend and also to
obtain the copy of various other documents filed by the prosecution.
Needless to say that the Applicant’s pleader has filed its Vakaltanama
on record and thus has the authority to accept the charge-sheet &
other relevant documents on his behalf in compliance of requirements
of Section 207 of the Code.
6. Moreover, the proviso of Section 207 of Cr. P.C clearly recognise
the authority of pleader to act on behalf of the Accused by allowing it
to inspect voluminous records forming part of documents relied upon
by prosecution. Needless to say, the power vested in pleader to act
on behalf of Accused is also recognised under various sections of the
Code such as u/s 278 (evidence of witness to be read over to him in
presence of the accused or his pleader), 253 (to plead guilty in petty
cases) etc.
7. It would be travesty of justice if the Code which allows a pleader
to defend the accused during trial, be give interpretation which denies
him the access to charge-sheet and other documents which are the
very foundation of prosecution case.
8. It is also brought to the kind notice of this Hon’ble Court that as
per the guidelines published by Hon’ble Bombay High Court in
Criminal manual, a duty is cast on Police officer to continue to supply
the copy of Charge-sheet to the accused as interim arrangement. The
same has been implemented vide Government letter, home
Department, No. PRO-0774/27694-VII-P dt. 05.02.1977.
9. That the above-captioned matter is listed under the caption of
‘Charge’ for the next date of hearing on 22.08.2019 before this
Hon’ble court. It is matter of concern that due to shortage of
resources at Respondents end, the Accused are not brought to court
physically on every listing date. Under these circumstance, there is no
certainty that the Applicant will be brought before this Hon’ble Court
on the said date, which leaves the Applicant behind the bars for the
want of Charge sheet, necessary to take further steps.
10. That while making preparation for arguing on framing of charge,
the Accused realised that in view of above, they will not be in a
position to understand anything and take steps for effectively defend
themselves. It is the paramount duty of prosecution to supply copy of
the documents to the Accused or the Advocates representing the
accused in as much as, the investigating agency is very well aware of
this inability of the accused. As the prosecution has failed to ensure
the opportunities to enable the accused persons to get fair trial in the
present matter, the accused are compelled to move this application,
seeking a direction to the prosecution for supplying copy of the
charge-sheet and all the documents which prosecution proposes to
rely upon for proving the charge against the accused.
11. It is submitted that supplying the copies of Charge-sheet and all
other relevant documents relied upon by the prosecution and to
ensure that accused rights is not prejudiced in their defence at the
stage of framing of charges and also during trial is the duty of the
prosecution and if the prosecution has failed to perform its said duty,
it is duty of the Hon’ble Court to ensure that Accused should not be
treated unfairly and the trial of the Accused is held without affording
proper opportunity to Accused to defend themselves.
12. That, it is the fundamental right of the accused persons to get all
the possible opportunities of getting a fair trial. The allegation made
in the present matter and proposed charge which the Accused have
to defend in the present matter are very serious in the nature. It is
settled law the graver is the offence, larger is the responsibility of the
prosecution as also of the Hon’ble Court to ensure all possible
opportunities of granting fair trial to the Accused. In the present
matter, as looking at the papers supplied to them by the prosecution,
the Accused are not in a position to understand anything and they are
required to be totally dependents on others for the same, it will be
travesty of justice if the accused are called upon to argue for
opposing the charges, which the prosecution ant this Hon’ble court to
frame and also to defend themselves in the trial based on the
material which they cannot understand. The Accused are bound to
suffer grave injustice and prejudices, if the material relied upon by the
prosecution for proving charge against them are not provided by the
prosecution.
13. It is further submitted that, the Hon’ble Principal Judge, City Civil
and Sessions Court, Greater Bombay has issued an circular bearing
OFFICE ORDER NO. 174 OF 2019 dated 20th August, 2019
regarding to issue and supply of copies charge-sheet and other
relevant documents to the accused in the respective Criminal Cases,
however, if the accused is not produced before the Hon’ble Court, the
Sheristerdars of the concern Courts are directed to serve the copies
thereof through the concerned Jail Superintendent and is also further
directed to issue the same to Advocates on record of the said
Accused. Hereto marked and annexed the copy of the said circular
dated 20th August, 2019 as an Annexure A.
14. That although under Section 207 of Cr.P.C, accused is to be
supplied the copies of police report and other documents copies are
not mentioned therein, it is judicially recognised that supplies of
relevant documents under Section 207 of Cr.P.C is not an empty
formality and has to be complied with strictly so that Accused rights is
not prejudiced in his defence even at the stage of framing of charge.
It is further submitted that no charge can be framed without
complying with the requirements of Section 207 of Cr.P.C. Therefore
there is no legal impediment in issuing such directions in the interest
of the justice.
15. Prayer: -In the light of above mentioned facts, the
Applicant prays that: -
a) This Hon’ble Court may kindly be pleased to direct
the Investigating Agency and/or State through Pubic
Prosecutor to provide the copies of police report
(Charge-sheet) and other relevant documents to the
Advocates of the Accused person to provide them a
meaningful opportunity to meet the allegations made
against them;
b) And be further pleased to pass such other order and
grant such other reliefs, as may be deemed fit and
proper in the facts and circumstances of the present
matter and in the interest of justice;
And for which act of kindness the applicant shall
remain duty bound and ever pray.
Dated this 22nd of August, 2019 at Dindoshi, Goregaon.
Advocates for
Applicant
IN THE COURT OF SESSIONS, BORIVALI
DIVISION,
DINDOSHI, GOREGAON,
MUMBAI
EXHIBIT NO. OF 2019
IN
SPECIAL POSCO CASE NO. 330 OF 2019
(C.R. NO.480 OF 2019)
Taukir @ Touqeer Hasan Khan …
Applicant
Versus
State of Maharashtra
...Complainant
(Through Malvani Police Station)
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MISC. APPLICATION
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Dated this 26TH day of August, 2019
DEWANI ASSOCIATES
Advocate for Applicant/Accused
83-B, Mittal Court,
Nariman Point,
Mumbai -4000 21
Ph.: 022-22044923
Email: dewanis@gmail.com
Adv. Code I10154
