JUDGMENT
S.M. Soni, J.
1. Short question that arises in this revision application is whether accused is entitled to copy of muddamal Articles if they consist of documents, under Sub-section (7) of Section 173 of the Code of Criminal Procedure, 1973 (‘Code’ for short).
2. Few facts to resolve this controversy required to be stated are as under: Petitioners are accused of an offence under the provisions of the Prevention of Corruption Act. Charge-sheet is filed against them and the case is Special Case No. 1 of 1990 before the Special Judge, Nadiad, District Kheda. There is no dispute that documents annexed with the charge-sheet are supplied when the accused were trapped and raid was carried out; search of the persons and their office premises was carried out and certain Articles which included certain receipt books, register and other documents are seized. Accused before commencement of trial has by application Ex. 6 asked for the copies of documents seized during search and taken as muddamal. Thus documents of which the copies are sought are in fact muddamal Articles seized at the time of search of the accused by the investigating officer in the course of raid. The documents asked for are referred in the application. After hearing the parties, the learned Special Judge rejected the application on the ground that the documents sought for by the accused are not the documents as referred to in Sub-section (7) of Section 173 and the documents sought for being the muddamal Articles, no doubt are in nature of documents, could not be supplied to the accused as the accused are not entitled to the same. Learned Special Judge also observed that those documents are relied on by the prosecution as muddamal and not as documents referred to in Section 173(7) of the Code. However, the learned Special Judge has granted permission to take down copy thereof with the previous permission of the Court if they so choose. Accused petitioners have challenged this order by this petition.
3. Mr. Parikh appearing for the petitioners contended before this Court that simply because the documents are seized as muddamal Articles, they do not cease to be documents and as they are documents, they are the documents as referred in Sub-section (7) of Section 173 of the Code. Mr. Parikh contended that the accused is entitled to the documents on which the prosecution is to rely. It is not that the prosecution is not going to rely on these muddamal Articles which also contains documents for the proof of their case against the accused. Mr. Parikh contended that it is necessary for the accused to have the copies of the said documents seized as muddamal as they do not cease to be documents referred in Section 173(7) of the Code to defend effectively their case. Mr. Parikh also contended that even though the prosecution says that they are not going to rely on the said documents as documents for the proof of the case against the accused, even then if such documents are necessary for the purpose of defence, the defence should be provided with a copy thereof. Denial to grant such copies which may hamper the defence of the accused, amounts to refusal to afford proper opportunity to the accused to defend his case which ultimately will vitiate the trial. Mr. Parikh also contended that simply because the documents are seized as Articles, they do not cease to documents referred in Section 173(7) of the Code.
4. Mr. Trivedi, learned P.P. for the State contends that muddamal Articles even if they consist of documents they are not covered by the word document referred in Sub-section (7) of Section 173 of the Code. Mr. Trivedi, contended that the judgment in the case of Praveenkumar J. Shah v. State [1982 (1)] XXIII (1) GLR 116) does not apply to the facts of the present case and the principle enunciated therein is of no assistance to resolve the controversy arising in this case.
5. To resolve the controversy, it is necessary to refer to the provisions of the Code pertaining to charge-sheet and providing of documents in Sub-section (7) of Section 173 and seizure of Articles under the relevant provisions of the Code.
6. Sub-section (7) of Section 173 of the Code provides that the Police Officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5). Sub-section (5) of Section 173 of the Code provides that when such report is in respect of a case to which Section 170 applies, the Police Officer shall forward to the Magistrate alongwith the report
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
Section 173(5)(b) is not relevant for our purpose being pertaining to statements recorded under Section 161. There is no dispute of the fact that the report in the instant case is submitted under Section 170 of the Code. Clause (a) of Sub-section (5) of Section 173 puts an obligation on the investigating officer to provide the accused with all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. The question is whether this Clause (a) of Sub-section (5) of Section 173 also covers the muddamal Articles if are consisting of documents.
7. Section 165 of the Code provides for search by Police Officer and in a search carried out under Section 165 of the Code, provisions of Section 100 of the Code is to apply. Sub-section (5) of Section 165 provides for copies of any record of grounds for search made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost with a copy of the same by the Magistrate. Section 100 provides for search of a closed place and the person in-charge of such closed place is to allow the search of such place. Section 102 of the Code provides for the power of the Police Officer to seize any property which may be alleged or suspected to have been connected with the offence or which may be found under circumstances which create suspicion of the commission of any offence and Section 104 of the Code provides to impound any document or thing produced before it under this Code. It is clear from the above provisions as to search and seizure that in the course of investigation if any documents are found to be connected with the commission of offence, they can be seized by the investigating agency under the relevant provisions of the Code and they are taken in custody by the investigating officer on preparing a list thereof and providing the copy of such list to the person whose person or premises are searched. If during the search, the Articles, which happens to be documents are seized then the question is whether such Articles if are in nature of documents, are the documents referred to in Sub-section (7) of Section 173 of the Code.
8. Muddamal Articles, may be documents are produced before the Court at the time of trial. They are required to be identified by the person in whose presence the same are seized. They are seized being necessary for the purpose of investigation If the muddamal consists of Articles in the nature of documents, then, those documents are not required to be proved and taken on record to be read as documentary evidence but the same are required to be identified. Only if, documents taken on record are one as referred in Sub-section (7) of Section 173, the prosecution is required to prove them to read as evidence. Learned P.P. has made it clear before this Court that the prosecution is not going to use or read the muddamal Articles some of which happens to be documents against the accused as documents referred to and contemplated in Sub-section (5)(a) of Section 173 of the Code and the accused persons, i.e., petitioners are not required to be provided with the copies thereof.
9. Mr. Parikh relying on Praveenkwnar’s case (supra) contended that even though the prosecution does not rely on the documents as their evidence to prove the case against the accused, but are in possession of the prosecution, then if the said documents are required by the defence, the defence cannot be deprived of the opportunity by withholding the said documents. In Praveenkumar’s case, the question was supply of enlarged photographs of writing in dispute relied on by an expert while giving his opinion before the Court. There the Court has said that if the expert has based his opinion on the strength of enlarged photographs, mere reproduction of reasons would not be sufficient. The Court would also not be able to appreciate whether the expert has given proper opinion or not without referring to the enlarged photographs and finding out the points of similarity or dissimilarity whatever they may be. So, it is clear that in order to appreciate the evidence and opinion of expert on handwriting, enlarged photographs would be necessary and even if the prosecution does not produce them or merely say orally that they did not propose to rely on that, then also they are the documents on which the expert has relied on to come to the conclusion and therefore, they are documents on which the prosecution relies. In Praveenkumar’s case (supra), it is clear that the prosecution relied on the opinion of the expert who in his turn, has relied on the copies of enlarged photographs of the documents to form his opinion, then it cannot be said that those enlarged photographs were not relied on by the prosecution. It is that the said photographs are not relied on directly by the prosecution. But the said photographs are the necessary instrument to form an opinion relied on by the prosecution to prove the case against the accused. In the instant case, in the course of search of the person of the accused and its office, certain Articles are seized. They consist of documents, receipts and registers. The Articles which are seized by the investigating office consists of documents pertaining to the registration work of the petitioner No. 1, who is a sub-registrar and the Articles which happens to be documents are seized from the office of petitioner No. 1.
10. Section 207 of the Code provides that in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:
(i) the Police report;
(ii) the first information report recorded under Section 154;
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.
The proviso to the Section is that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the Police Officer for exclusion therefrom, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused. It is further provided that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
Section 207 of the Code is very clear as to what documents and the police report the accused is entitled to as a matter of right. In Section 207 it is also made clear that the accused is required to be supplied the documents or relevant extracts of the documents forwarded to the Magistrate with the police report recorded under Sub-section (5) of Section 173. Documents contemplated in Sub-section (5) of Section 173 are the documents which the prosecution will rely on as documentary evidence on being legally proved under the Evidence Act. Muddamal Articles even if they consist of documents are not required to be proved as per Evidence Act and read in evidence but they are identified as being seized from accused. If the Articles form any incriminating circumstance, the same may be considered without going into the contents thereof. Muddamal Articles, if consists of any document. Is it a documentary evidence as referred in the Evidence Act? It is necessary to mention at this juncture that in case if the prosecution tries to prove the muddamal Articles which happens to be a document to use and rely on as documentary evidence, then, in that case, accused will be entitled to copy of those Articles which happens to be a document. Here, in this case, the Articles which happens to be document are not to be used as documentary evidence against the accused as made clear by the learned. P.P. but they are only to be identified as Articles seized from the person of the accused or from the premises occupied by the accused.
11. Mr. Parikh contended that when there is no ambiguity in the meaning of word ‘document’, then, the meaning in its popular sense should be accepted. A document being seized as an Article or is a document referred in Section 173(5)(a) of Code, the meaning is the same. He contended that the Court must interpret the word document as used or understood in popular sense. I have no hesitation in accepting this contention in principle which Mr. Parikh substantiates by relying on a judgment in the case of Bhatia v. State of V.P. . In the case of Bhatia (supra), the word transfer was under consideration. The Supreme Court observed “It is well settled that whenever the legislature uses certain terms of expressions of well-known legal significance or connotation the Courts must interpret them as used or understood in the popular sense.” In the case on hand, documents on which the copies are asked by the petitioners are in fact seized as Articles. 1,0 doubt, those Articles also contain documents. Ordinary dictionary meaning of the word Article is ‘a particular or separate thing,. Under the provisions of Section 165 of the Code, on search of the person or premises, whatever found incriminating is seized by the investigating officer and accordingly whatever seized on search are the Articles referred in Section 165. Section 165 provides for supply of copy of any record made of reasons to search and not of Articles or things seized. Therefore, there is no question of putting ordinary meaning of the word document to include the Articles seized under Section 165 of the Code and refer it as one of the documents referred in Sub-section 5(a) of Section 173 of the Code does not carry in its sweep the Articles which are seized under Section 165 if they happened to be documents. Mr. Parikh contended that the word document is plain and unambiguous and that we are bound to consider in its ordinary sense. He contended that mere fact that giving the meaning of the word document to Articles which happens to be documents, if it causes some inconvenience or unjust result that by itself does not entitle the Court to refuse to give its ordinary meaning. To substantiate this he has relied on a judgment in the case of Nasiruddin v. State Transport Appellate Tribunal . In the case of Nasiruddin (supra), the question before the Court was whether ‘or’ can be read as ‘and’. There the Court while considering that aspect in the context of the word used in the concerned statute has observed as under: “If the inconvenience is an absurd inconvenience by reading enactment in its ordinary sense whereas, if it is read in a manner in which it is capable, though not in an ordinary sense there would not be any inconvenience at all. There would be reason why one should not read according to its ordinary grammatical meaning. Where the words are plain, the Court would not make any alteration.”Here, in this case, there is no question of giving any different meaning to the word document referred in Sub-section 5(a) of Section 173 of the Code. Documents referred in Sub-section 5(a)of Section 173 of the Code does not refer to or embrace in its meaning the word thing or Articles, if they happen to be documents seized under Section 165 of the Code. Mr. Parikh also contended that prima facie literal meaning should be given to the word document and to substantiate his contention he relied on a judgment in the case of R.M.D. Chamarbaugwalla v. Union of India . There the question was as to the meaning of definition of prize competition and while considering that aspect the Supreme Court observed:
The definition of prize competition in Section 2(d) is wide and unqualified in its terms. There is nothing in the wording of it which limits it to competitions in which success does not depend to any substantial extent on skill but on chance.
It is further observed-“When a question arises as to the interpretation to be put on an enactment, what the Court has to do is to ascertain “the intent of them that make it”, and that must of course be gathered from the words actually used in the statute.” That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials. The literal construction then has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get exact conception of the aim, scope and object of the whole Act; to consider (1) what was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy.
12. Keeping this in view it will be relevant to state that document referred in Sub-section 5(a) of Section 173 of the Code pertains to a documentary evidence, as compared to oral evidence as defined as evidence in the Indian Evidence Act. It will be pertinent to note that the Public Prosecutor had made it clear that they are not going to use these Articles which happens to be documentary evidence as referred in the provisions of Indian Evidence Act. They are going to use it simply as Articles. In view of this fact and in view of authorities referred above as relied on by learned Advocate Mr. Parikh there is no question of reading Articles which happens to be documents as documents as referred to in Sub-section 5(a) of Section 173 of the Code. I have made it clear that in case if the prosecution uses the said Articles which happens to be documents as documents and tries to prove the same as a documentary evidence in that case the accused will be entitled to the copies thereof as provided in Section 207 of the Code.
13. In view of the above discussion, there is no reason to interfere with the order passed by the learned Special Judge. Hence, the revision application is liable to be dismissed and is dismissed. Rule discharged.
Learned Advocate for the petitioners requests this Court that the interim relief’ should be continued for a further period of four weeks as he had instructions that the party wants to approach the higher forum against this order. In view of this fact, the interim relief shall continue for four weeks from today.