- (1.) A. B. Srivastava, J. In a Sessions trial pending since 1981 (85 of 1981) in the Court of Vth Additional Sessions Judge, Bareilly, the proceedings have been stalled since several years on a dispute regarding supplying copies of certain documents, which has brought the accused persons to this Court. In the application under Section 482 of the Cr. P. C. moved initially on 20-10-1989, the prayer was to direct the prosecution to supply copies of two dying declarations, various recorded or unrecorded statements under Section 161, Cr. P. C, and certain General Diary entries. In another application moved subsequently on 18-1-1993 and made part of the original proceedings, prayer has been made to direct an enquiry to be made to ascertain whether or not the G. D. dated 23-11-1980 and the Duty Register of the same date of P. S. Qila, District Bareilly, has been weeded out, and to direct copy thereof to be supplied, before the trial starts.
(2.) WHILE staying the proceedings certain orders were passed to direct the documents required under Section 207, Cr. P. C. to be supplied and to proceed with the case after such supply has been made. From a perusal of the materials furnished on record, particularly the order dated 19-11-1992 (Annexure 'c' to the application and affidavit dated 18-1-1993) it is found that the copies of Dying Declaration, statements of witnesses recorded under Section 161, Cr. P. C. have since been supplied to the accused persons. The dispute now remains only about the General Diary and Duty Register dated 28-11-1980 of P. S. Qila, District Bareilly. By the im pugned order, on the representation of the prosecution, the learned Sessions Judge holding that the two documents have been weeded out observed that supply of the copies under the circumstances is not possible and the trial shall proceed leaving open the plea of adverse inference to the accused persons. The contention of the applicants is that the documents are relevant in so far as accused applicant No. 1 Lakhpat Singh at the time of alleged murders in the Court compound on 28-11-1980, was on way to the court from P. S. Qila under police escort, to appear as a witness in a murder trial and could not have been a party to the present incident. It is also contended that there is no satis factory evidence about the two documents having been weeded. Whenever a public document, the production whereof is material in any enquiry or trial, is not produced by the custodian thereof on the ground of being weeded out, or lost, and such fact is disputed by the other side, a duty is cast on the court to hold a summary enquiry to determine such fact. In the instant case it is found that a fuller enquiry than what was conducted by the learned Additional Sessions Judge was required to determine whether the relevant G. D. and Duty Register is available or has been weeded out. Such enquiry would include examining of the weeding Register, or the concerned official, which was not done.
(3.) ACCORDINGLY, the learned Vth Additional Sessions Judge, Bareilly is directed to hold an enquiry by examining, the concerned officials, having the custody of General Diary and Duty Register dated 23-11- lvso of P. S. Qila, District Bareilly or the duplicate copy thereof, the weeding register, and other relevant records, if any, as to whether the said documents have been weeded out or it still exist. In the enquiry which will be summary, the accused shall be entitled to cross-examine the witnesses examined with reference only to the question of weeding. Such enquiry shall be conducted and completed expeditously within six weeks from the date a certified copy of this order is present ed before the court concerned. In case the document is not proved to have been weeded out, copies thereof shall be directed to be supplied to the accused persons. In case it is not so done or it is found to have been weeded out in breach of rules or any orders of the court, it will be permissible to the defence to plead for appropriate inference under the relevant provisions of the Evidence Act. The evidence of the Head Constable writer and the Investigating Officer in the case shall be recorded only after the enquiry as stated above is complet ed by the Presiding Officer, so that the accused persons may be in a position to refer the documents, if they are still in existence, to those witnesses in cross-examination. The recording of the statements of other witnesses however need not await the aforesaid enquiry. The petition under Section 482, Cr. P. C. is disposed of, and interim stay order, modified accordingly. Application disposed of. .;