Deepak Kapil vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2026:MPHC-JBP:32669
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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE B. P. SHARMA
st
ON THE 21 OF APRIL, 2026
MISC. CRIMINAL CASE No. 30705 of 2025
DEEPAK KAPIL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prakash Upadhyay, Sr. Advocate with Shri Hitendra Kumar
Golhani - Advocate for the petitioner.
Shri Shashank Shekhar, Sr. Advocate with Samresh Katare, learned
counsel for the respondent No.2.
Shri Amit Singh Baghel, learned counsel for the respondent/State.
ORDER
This petition under Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 has been instituted by the applicant assailing the legality,
propriety and correctness of the order dated 23.06.2025 passed by the
learned XXI Additional Sessions Judge, Bhopal in Criminal Revision
No.199/2025, whereby the revisional Court has affirmed the order dated
21.03.2025 passed by the learned Judicial Magistrate First Class, Bhopal in
RCT No.11753/2014. By the order dated 21.03.2025, the learned trial Court
allowed an application under Section 242(2) of the Code of Criminal
Procedure for taking certain documents on record at the stage of recording of
prosecution evidence in a warrant case instituted on a police report.
Signature Not Verified
Signed by: SANTOSH
MASSEY
Signing time: 4/27/2026
6:36:27 PM

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FACTS OF THE CASE

2. The factual matrix, reveals that the complainant along with other
similarly situated persons had entered into agreements with the accused
persons for purchase of residential units in a project developed by a
construction entity associated with the petitioner. It is alleged that despite
receipt of substantial amounts from the complainants, the accused persons
failed to deliver possession of the promised units and thereby committed
offences of cheating and criminal conspiracy.
3. During the course of trial, when the matter had reached the stage of
recording prosecution evidence, the complainant preferred an application
under Section 242(2) Cr.P.C. seeking to bring on record certain documents,
which included agreements to sell, payment receipts, undertakings, no dues
certificates, sale deeds, allotment letters, payment sheets and bank
transaction details. The learned trial Court, vide order dated 21.03.2025,
allowed the said application and specifically recorded that the “documents
submitted by the complainant through the prosecution are accepted on
record.” The petitioner challenged the said order before the revisional Court,
however, the revision was dismissed by order dated 23.06.2025 affirming the
findings of the trial Court. The present petition has been filed thereafter.
4. Learned counsel for the petitioner has assailed the impugned orders by
contending that the complainant, who is merely a witness, has no authority in
law to independently introduce documents at the stage of trial. It is submitted
that Section 242(2) Cr.P.C. specifically contemplates that an application for
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Signed by: SANTOSH
MASSEY
Signing time: 4/27/2026
6:36:27 PM

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production of documents must be moved by the prosecution, and not by a

complainant or witness. According to the petitioner, permitting such a course
would defeat the statutory scheme of Sections 173(5) and 173(8) Cr.P.C.,
which require all documents relied upon by the prosecution must be filed
along with the charge-sheet and any additional material can be brought on
record only through further investigation.
5. In support of the aforesaid contention, learned counsel has placed
reliance upon the judgment of this Court in Sunil vs. State of Madhya
Pradesh dated 21.09.2024, wherein it has been held that a witness cannot
directly produce documents during the course of a sessions trial and that such
a procedure is not contemplated under the Code. It is submitted that the
principle laid down therein applies with equal force to the present case.
6. Reliance has also been placed on the judgment of the Hon’ble
Supreme Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani (2016) 10
SCC 378, wherein it has been held that the complainant cannot take over the
conduct of prosecution and must act under the direction and control of the
Public Prosecutor. It is argued that the impugned procedure effectively
permits the complainant to circumvent the role of the prosecutor.
7. Further reliance has been placed on Shiv Kumar vs. Hukam Chand
(1999) 7 SCC 467, to contend that the role of a private complainant is
limited and subordinate to that of the Public Prosecutor, and therefore, the
complainant cannot be permitted to introduce evidence independently.
Learned counsel has also relied upon the judgment of this Court in
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MASSEY
Signing time: 4/27/2026
6:36:27 PM

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Manbharan Singh vs. State of M.P. (CRA No.919/1997 decided on

17.03.2009), wherein emphasis has been laid upon the requirement of strict
proof and admissibility of documentary evidence and the necessity of
following due procedure in criminal trials.
8. On the strength of the aforesaid judgments, it is contended that
permitting the complainant to introduce documents at the stage of trial
amounts to filling up lacunae in the prosecution case and causes serious
prejudice to the accused, thereby vitiating the trial.
9. Per contra, learned counsel for the respondents has supported the
impugned orders and submitted that the application under Section 242(2)
Cr.P.C. was not filed independently by the complainant but was duly routed
through the prosecution, as has been specifically recorded by the trial Court
in the impugned order and that finding was not challenged by the petitioner
in the revision. It is further submitted that the documents in question are not
new documents but are the original versions of documents already filed in
photocopy form along with the charge-sheet. Therefore, no prejudice is
caused to the petitioner/accused.
10. Learned counsel for the respondent has placed strong reliance upon the
judgment of this Hon’ble Court in Manoj Patel vs. State of Madhya Pradesh
decided on 13.02.2024, and submits that the said judgment squarely governs
the controversy involved in the present case. It is contended that this Court,
after an elaborate consideration of the scheme of Section 242 Cr.P.C., has
categorically held that in a warrant trial the prosecution is entitled to bring on
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MASSEY
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record any relevant document through a witness, even if such document was

not filed along with the charge-sheet, provided the application is moved
through the prosecution and the witness is part of the prosecution evidence.
The Court has further clarified that there is no statutory bar prohibiting a
witness from producing documents in his possession during the course of
trial and that the Magistrate is under an obligation to take all such evidence
produced in support of the prosecution. It has also been emphatically held
that mere non-production of documents at the stage of filing of charge-sheet
is at best an inadvertent omission and cannot be treated as an irreparable
lacuna, and the Court ought to permit such evidence in furtherance of the
cause of justice. The judgment further safeguards the rights of the accused by
observing that the accused would have full opportunity to cross-examine the
witness on such documents and to challenge their admissibility at the
appropriate stage. Thus, it is submitted that the ratio laid down in the said
judgment clearly establishes that documents can validly be brought on record
through a prosecution witness during trial and the same does not vitiate the
proceedings nor cause prejudice to the accused.
11. Having heard the submissions advanced and upon perusal of the
record, the core question that arises for determination is whether a document,
though originating from the complainant, can be taken on record at the stage
of prosecution evidence in a warrant case upon an application moved by the
complainant/witness through the prosecution under Section 242(2) of the
Code of Criminal Procedure.
12. At the outset, it is necessary to advert to the statutory scheme
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MASSEY
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embodied in Section 242 Cr.P.C. Sub-section (2) thereof empowers the

Magistrate to issue summons for production of any document on the
application of the prosecution, while sub-section (3) mandates that the
Magistrate shall proceed to take all such evidence as may be produced in
support of the prosecution. Section 242 of the CrPC is reproduced as under:
“'Section 242: Evidence for prosecution. (1) If the accused
refuses to plead, or does not plead, or claims to be tried or
the Magistrate does not convict the accused under Section
241, the Magistrate shall fix a date for the examination of
witnesses:
Provided that the Magistrate shall supply in advance to the
accused, the statement of witnesses recorded during
investigation by the police.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or other
thing.
(3) On the date so fixed, the Magistrate shall proceed to take
all such evidence as may be produced in support of the
prosecution:
Provided that the Magistrate may permit the cross-
examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any
witness for further cross-examination'.”

13. Section 242(2) of the Code of Criminal Procedure empowers the
Magistrate, upon an application moved by the prosecution, to issue summons
to any of its witnesses directing such witness either to appear before the
Court or to produce any document or other thing. Sub-section (3) further
mandates that on the date so fixed, the Magistrate shall proceed to take all
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MASSEY
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such evidence as may be produced in support of the prosecution. A conjoint

reading of these provisions makes it clear that the prosecution is required to
move an application for summoning its witness either for the purpose of
deposition or for production of documents or other material. For the proper
invocation of Section 242(2) Cr.P.C., certain essential conditions must be
satisfied, namely, that the witness sought to be summoned is a listed
prosecution witness, that the prosecution intends to examine such witness,
that an application to that effect is moved on behalf of the prosecution, and
that the witness is required either to depose orally or to produce any
document or thing. Sub-section (3) casts an obligation upon the Magistrate
to receive all such evidence produced in support of the prosecution case,
thereby indicating that the Court cannot refuse to take such evidence on
record once it is duly produced in accordance with law.
14. The distinction between the origin of the document and the mode of its
production is fundamental. The statutory requirement is that the document
must be brought on record through the prosecution; it does not mandate that
the document must necessarily originate from the investigating agency. If the
prosecution adopts a document and seeks its production before the Court, the
requirement of Section 242(2) Cr.P.C. stands satisfied.
15. The judgments relied upon by the petitioner, when examined in their
proper context, do not advance the case of the petitioner. The decision in
Sunil (supra) was rendered in the context of a sessions trial where a
witness sought to directly produce documents without routing the same
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MASSEY
Signing time: 4/27/2026
6:36:27 PM

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through the prosecution, and the Court held such a procedure to be

impermissible. Similarly, the judgments in Dhariwal Industries
Ltd. (supra) lay down the principle that the complainant cannot usurp the role
of the Public Prosecutor and must act under his direction. These decisions
reinforce the procedural requirement that evidence must be introduced
through the prosecution, but they do not prohibit the prosecution from
adopting documents supplied by the complainant. Likewise, the judgment in
Manbharan Singh (supra) pertains to appreciation of evidence and proof of
documents at the stage of adjudication and does not deal with the procedural
permissibility of taking documents on record under Section 242(2) Cr.P.C.
16. On the other hand, the judgment of this Court in Manoj Patel (supra)
directly addresses the issue at hand and holds that a witness is duty-bound to
produce all relevant documents in his possession under Section 162 of the
Evidence act and that the Court can accept such documents during trial. It
has been further held that the accused would have full opportunity to cross-
examine the witness in respect of such documents and that the admissibility
thereof can be decided at the appropriate stage. Applying the aforesaid
principles to the facts of the present case, it is evident that the documents in
question were not introduced independently by the complainant but were
brought on record through the prosecution, as has been categorically
recorded by the trial Court in the impugned order. The petitioner did not
contend before the trial Court or the revisional court that the said documents
had not been submitted through prosecution. This finding has remained
specifically unchallenged in revision.
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MASSEY
Signing time: 4/27/2026
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17. It is further significant that the documents sought to be produced are

some of the documents already forming part of the charge-sheet in
photocopy form. Thus, the production of such documents does not introduce
any new material but merely enhances the evidentiary value of the existing
material. The accused has been aware of the contents of these documents
from the inception because almost all the documents have been executed by
the petitioners themselves and cannot claim any surprise or prejudice.
18. The apprehension that the prosecution is seeking to fill up lacunae is
also misconceived. As held by the Hon’ble Supreme Court in Rajendra
Prasad vs. Narcotic Cell [(1999) 6 SCC 110] omission to produce evidence
due to oversight does not amount to lacuna and the Court should adopt a
liberal approach in permitting relevant evidence to be brought on record to
advance the cause of justice.
19. The criminal trial is not a game of technicalities but a quest for truth.
The procedural provisions are intended to facilitate the discovery of truth
and not to obstruct it. So long as the evidence is brought on record through a
legally permissible channel and the accused is afforded full opportunity to
contest the same, no prejudice can be said to have been caused.
20. In view of the aforesaid discussion, this Court holds that a document
originating from the complainant can validly be taken on record under
Section 242(2) Cr.P.C., provided the application for its production is made
by the complainant through the prosecution. The statutory requirement
pertains to the mode of production and not to the source of the document.
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Signed by: SANTOSH
MASSEY
Signing time: 4/27/2026
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The admissibility and evidentiary value of such document shall be subject to

judicial scrutiny at the appropriate stage.
21. The impugned orders dated 21.03.2025 and 23.06.2025 do not suffer
from any illegality, perversity or jurisdictional error warranting interference
by this Court.
22. Accordingly, the present petition is dismissed.
(B. P. SHARMA)
JUDGE
SM

Signature Not Verified
Signed by: SANTOSH
MASSEY
Signing time: 4/27/2026
6:36:27 PM