Gujarat High Court
Central Bureau Of Investigation vs State Of Gujarat & on 10 June, 2016
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/354/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 354 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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CENTRAL BUREAU OF INVESTIGATION....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RC KODEKAR, ADVOCATE for the Applicant(s) No. 1
MS MOXA THAKKER, APP for the Respondent(s) No. 1
MR RAHUL SHARMA, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 10/06/2016
CAV JUDGMENT
This Criminal Revision Application preferred under Page 1 of 20 HC-NIC Page 1 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT Section 397 read with Section 401 of the Code of Criminal Procedure ["CrPC" for short] arises from an Order dated 17th March 2016 passed below Exh.1 by the learned Special Judge, CBI Court No. 3, City Civil Court, Ahmedabad in CBI Case No. 2 of 2013, whereby, the certified copy of the entire chargesheet papers of the said Session case was ordered to be given to the respondent no. 2 herein.
By the impugned order, the learned Special Judge, CBI Court, Ahmedabad allowed the application moved by the respondent no. 2 herein seeking certified copy of the chargesheet in view of provisions of paragraph 378 of the Gujarat Criminal Manual with a condition to submit affidavit containing the object for seeking certified copy of the first chargesheet in Sessions Case No. 2 of 2013.
Aggrieved by the said order, the petitioner herein moved the learned Special Judge, CBI Court praying for stay of execution and implementation of the Order dated 17th March 2016. The learned Special Judge, CBI Court after hearing both the sides was pleased to stay its Order dated 17th March 2016 till 22nd April 2016, vide Order Page 2 of 20 HC-NIC Page 2 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT dated 7th April 2016, and hence this Revision Application seeking the following reliefs :
[A] to admit this Revision Application and call for the records and proceedings of the case; [B] to allow this Revision Application, quashing and setting aside the impugned order dated 17th March 2016 passed by the learned Special Judge, CBI Court No. 3, Mirzapur, Ahmedabad in CBI Special Case No.
2 of 2013;
[C] to grant stay of execution and implementation of impugned orders dated 17th March 2016 passed by the learned Special Judge, CBI Court No. 3, Ahmedabad in CBI Special Case No. 2 of 2013, pending admission and final disposal of the Revision Application;
[D] to grant such other and further reliefs, as the Court deems fit, just and proper in the interest of justice.
Initially, on urgency being expressed by learned advocate Mr. RC Kodekar appearing for the applicant, this Court [Coram : Mr. Justice GB Shah] had on 6th May 2016, directed the registry to place this matter before the vacation Bench on 9th May 2016.
Considering the urgency pleaded, this Court on 9th May 2016 issued notice, making it returnable on 16th May Page 3 of 20 HC-NIC Page 3 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT 2016.
On the returnable date, this matter was heard at length and arguments advanced for and on behalf of respective parties were completed. The request made for extension of stay granted by the CBI Court, till the final verdict on this matter was considered and accepted.
Heard learned advocates appearing for the respective sides.
Learned advocate Mr. RC Kodekar appearing for the applicant submitted that by impugned order dated 17th March 2016 passed by the learned Special Judge, CBI Court No. 3, City Civil Court, Ahmedabad, certified copies of the entire chargesheet papers of Sessions Case No. 2 of 2013 were ordered to be given to the respondent no. 2 herein, in view of the provision of paragraph 378 of the Gujarat Criminal Manual, with a condition to submit an affidavit of the applicant containing the object for obtaining certified copies, the prayer sought for obtaining certified copies for the first chargesheet in Sessions Case No. 2 of 2013, is contrary and inconsistent to the facts and evidence on record. It is further submitted that the first Page 4 of 20 HC-NIC Page 4 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT chargesheet was filed in the offence in the month of July 2013 and the respondent no. 2 filed application for getting certified copy on 11th March 2016 ie., after passing of three years' period approximately. That the respondent no. 2 is not the victim nor relative of the victim or investigating officer in the offence that chargesheet can be challenged by an accused under Section 482 CrPC. Further investigation, if necessary, can be sought by the Investigating Officer of the offence under Section 173 [8] of the Code by filing an application. That, para 377 of Chapter XXII of the Gujarat Criminal Manual permit parties to any proceeding to obtain certified copies of any judgment, order, deposition, memorandum of evidence or any other document filed in the said proceedings by making application on the prescribed court fees. Undoubtedly, the respondent no. 2 is neither the first informant, nor Investigating Officer, nor victim or affected party to the proceeding. That, he has never declared on oath that on which kind of judicial proceeding before the Gujarat High Court, certified copy was required by the respondent no.2. That under section 207 of the Code, only Page 5 of 20 HC-NIC Page 5 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT the accused persons can be supplied copy of the record and the statements made under Section 161 CrPC. He has also invited attention of this Court to Section 173 [2] CrPC that anybody cannot claim for copies of the chargesheet papers. That, Special Investigating Team was constituted for investigating the offence, wherein the respondent no. 2 is one of the members in the SIT constituted for the said purpose. That the first informant is the Chairman of the SIT. That the respondent no. 2 has materially suppressed the fact that before passing of the order by the learned Special Judge, the petitioner was never served with copies nor was given any opportunity of hearing. That the chargesheet papers cannot be handed over to the third party, and therefore, it was requested by learned advocate Mr. RC Kodekar appearing for the applicant to allow this Revision Application and thereby quashing and setting aside the impugned order dated 17th March 2016 passed by the learned Special Judge, CBI Court, Ahmedabad in CBI Special Case No. 2 of 2013.
Per contra, learned advocate Mr. Rahul Sharma appearing for the respondent no.2, relying upon the order Page 6 of 20 HC-NIC Page 6 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT dated 17th March 2016 passed by the learned Special Judge, CBI Court, Ahmedabad urged that para 378 of the Gujarat Criminal Manual clearly provides that applications moved for copies by parties other than parties to the proceeding shall be supported by an affidavit stating the purpose for which the copies are sought for. He, however, added that such application should be made to the Court having custody of the record, on the prescribed court fees, for obtaining certified copies of any judgment, order, deposition, memorandum or evidence or any other document filed in the said proceeding. According to the learned advocate for the respondent no.2, the impugned order passed by the learned Special Judge, CBI Court is an administrative order and as required, the respondent no. 2 has filed his affidavit before the learned Special Judge. It is not necessary that the parties to the proceedings can only claim certified copies of the record. That, para 378 of the Gujarat Criminal Manual clearly permits application for copies by parties other than parties to the proceeding for obtaining certified copies of either judgment, order, deposition, memorandum of evidence or any other Page 7 of 20 HC-NIC Page 7 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT document filed in the said proceeding. He has supported the order passed by the learned Special Judge, CBI Court granting application of the respondent no. 2 and requested this Court to confirm the order by dismissing the present Revision Application preferred by the petitioner. In support of his submissions, he has placed reliance upon the decisions of the Apex Court, rendered in cases of A.R Antulay v. Ramdas Sriniwas Nayak & Ors., [1984] 2 SCC 500; of Sheonandan Paswan v.
State of Bihar & Ors., [1987] 1 SCC 288; of Subramanian Swamy v. Manmohan Singh & Anr., [2012] 3 SCC 64 and in case of Hardeep Singh v. State of Punjab & Ors., [2014] 3 SCC 92.
Learned APP Ms. Moxa Thakker appearing for the respondent no.1-State has also supported the arguments advanced by the learned advocate Mr. RC Kodekar appearing for the petitioner and requested the Court to allow the present Revision Application. She added that only party to the proceeding can claim certified copies of the record.
Having considered the facts of the case, submissions Page 8 of 20 HC-NIC Page 8 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT made by learned advocates appearing for the respective sides, it appears that on an application being submitted by the respondent no. 2, which is not exhibited in the proceedings, the learned Special Judge, CBI Court was pleased to pass an order after pleadings and application and hearing the arguments of the learned advocate for the respondent no. 2, to accept the prayer such as for providing certified copies of the entire chargesheet papers of Sessions Case No. 2 of 2013 to the learned advocate for the applicant-respondent no. 2 herein, as per the provisions of para 378 of the Gujarat Criminal Manual. It transpires from the order impugned dated 17th March 2016 that the first part of the order is a typed-written order and thereafter in hand writing, further order is passed viz., "with condition to submit the Affidavit of applicant containing the object for obtaining the certified copies." In the first part of the typed order, initially no order appears to have been passed directing the respondent no. 2 to submit affidavit containing the object for obtaining certified copies. Therefore, it would be apt at this stage to analysis the relevant provisions made in para 377 and 378 Page 9 of 20 HC-NIC Page 9 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT in Chapter XXII of the Criminal Manual, which reads thus :
"377. Parties to any proceeding may, on application on the prescribed Court fee made to the Court having the custody of the record, obtain certified copies of any judgment, order, deposition, memorandum of evidence or any other document filed in the said proceedings.
378. Applications for copies by parties other than parties to the proceeding shall be supported by an affidavit stating the purpose for which the copies are sought."
It appears that when an application was submitted by the respondent no. 2 praying for certified copies of the entire chargesheet papers [of the first chargesheet], no affidavit was supported nor any purpose for which copies were sought by him was stated. Under paragraph 378 of the Gujarat Criminal Manual, it is specifically mentioned that applications for copies by parties other than parties to the proceeding shall be supported by an affidavit stating the purpose for which the copies are sought. The word, 'shall' is used in para 378 of the Gujarat Criminal Manual, which was not complied with by the respondent no. 2 at the time of filing of the application before the learned Special Judge, CBI Court. Surprisingly, the learned Special Judge, while passing the impugned order dated 17th March Page 10 of 20 HC-NIC Page 10 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT 2016 has later on, in handwriting added further in the said order directing the respondent no. 2 to submit affidavit containing the object for obtaining the certified copies. It appears that the learned Special Judge has informed the respondent no. 2 to submit an affidavit containing the object for obtaining certified copies, which otherwise was the duty of the respondent no. 2 to support his affidavit stating therein the purpose for which certified copies are sought for, as provided in para-378 of the Gujarat Criminal Manual. Thereafter, it appears that on 19th March 2016, affidavit was submitted by the respondent no. 2 before the learned Special Judge, CBI Court declaring that for the judicial proceedings before the Hon'ble High Court of Gujarat, copy was required by him. But, he has not specifically stated in which proceeding pending before the High Court of Gujarat or contemplated by the respondent no. 2 in future, certified copies were required. It transpires from the plain reading of the affidavit that vague affidavit was filed by the respondent no. 2 on 19th March 2016. It also transpires that before passing the impugned order dated 17th March 2016, the learned Special Judge, CBI Page 11 of 20 HC-NIC Page 11 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT Court had afforded no opportunity of hearing to the petitioner herein. It is indisputably clear that the respondent no. 2 is neither the first informant nor investigating officer or a victim or affected party. This Court would like to refer to Section 207 CrPC, which provides as under :
"207. Supply to the accused of copy of police report and other documents.-
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 there from 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:
Page 12 of 20
HC-NIC Page 12 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT Provided 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 the request, 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 :
Provided further 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.
In the old Criminal Procedure Code, in cases instituted on a police report, there was a statutory duty of the Police under Section 173 (4) to furnish to the accused free of cost, copies of the police report, first information report recorded under Section 154 and all other documents or relevant extracts on which the prosecution purports to rely; including confessions and statements recorded under Section 164 and 161 [3] of the Code. Now, the duty has been shifted upon the Magistrate to supply copy of the documents specified in section to the accused, free of cost. Thus, an obligation and duty has been cast on Page 13 of 20 HC-NIC Page 13 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT the Magistrate to see first of all that free and legible copies of the documents in Section 207 have been delivered to the accused in proper time and if not, to cause them to be furnished. The object is that the accused must know all that is against him in the police report, FIR, statements of witnesses examined and the nature of the charge he has to meet so that he can come prepared to defend himself properly. Failure to deliver the papers in sufficient time before the hearing day will involve embarrassment to the defence and unnecessary adjournment. However, there is no provision for supply of copies of statements recorded under Section 161 of the Code in connected cases against the accused, though there is nothing prohibiting it. If there is failure to supply copies, the prosecution is not debarred from examining a person, a copy of whose statement is not given. Here, it will be necessary to go through the provisions under Section 173 CrPC, which provides that every investigation under this Chapter shall be completed without unnecessary delay. It also provides that the officer in charge of the police station shall forward to a Magistrate Page 14 of 20 HC-NIC Page 14 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Clause (ii) of sub-section (2) of Section 173 CrPC provides that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Sub-section (5) of Section 173 CrPC prescribes that when such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with 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 the investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. While, Section 173 (7) provides that where 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) thereof. Further investigation is also permissible in respect of an Page 15 of 20 HC-NIC Page 15 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT offence, after a report under sub-section (2) has been forwarded to the Magistrate, as provided under Section 173 (8) CrPC. From all these provisions, as referred to above, it is clearly enunciated that all the documents or relevant extracts in which the prosecution proposes to rely can be claimed by the accused and shall be provided to defend himself in the proceedings. This Court would like to refer para 379, 380, 381, 382, 383 of the Gujarat Criminal Manual which provides, thus-
"379.On receipt of an application, the office shall immediately scrutinize the application with a view to ascertain the correct number of the proceeding, names of the parties, description of the document copy of which is applied and whether the document is available for copying.
380. The office shall estimate the costs of the copies except the copies to be given free of costs before the copying work is undertaken. The estimate should, as far as possible, cover all probable costs of the copies including the postage, if the copies are required to be sent through the agency of post.
381. The applicant, not entitled to copy, free of cost, shall be called upon to deposit the estimate costs of the copies applied for and make up other deficiencies then and there only, if his presence is available in the office. In other cases the orders of Page 16 of 20 HC-NIC Page 16 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT the presiding officer shall be obtained requiring the applicant to comply with the necessary requirements before the copying work is taken on hand.
382. When the description of the documents given in the application is incorrect or deficient, and it is, in consequence, necessary for the Record keeper or other Clerk of the Court to search the records in order to find it, a fee at the rate of one rupee for each year of which the records are searched, shall be payable by the applicant for such search, whether the document be found or not, and whether the copy for which he applies, on examination of the said document, be granted or not."
It also confines that on receipt of the application submitted by the respondent no. 2 requesting certified copy of the entire chargesheet papers, the office of the Court has never scrutinized application, as provided under para 379 of the Gujarat Criminal Manual. Further, as provided in para 383 of the Gujarat Criminal Manual, as soon as the office finds that the application is complete in all respects, it shall, except in case where the application is for supplying certified copy of a documents free of costs, which shall be placed before the Presiding Officer Page 17 of 20 HC-NIC Page 17 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT for orders, be dealt with by the Registrar or Clerk of the Court in the Sessions Court as the case may be. Clerk of the Court in the Court of the Civil Judge and Judicial Magistrate, the Sheriestedar in the Court of the Metropolitan Magistrate or Senior Clerk in the Court of the Judicial Magistrate, who may either grant the application or refuse it for reasons to be recorded thereon, or pass such orders as may be deemed just. This mandatory procedure was never complied with by the learned Special Judge concerned before passing the impugned order dated 17th March 2016. Prima facie, it also appears that none of the provisions were taken into consideration by the learned Special Judge and straightaway an order was passed granting the prayer of the respondent no. 2 herein.
In the judgment rendered in case of A.R Antulay v. Ramdas Sriniwas Nayak & Anr. [Supra], relied upon by the learned advocate Shri Rahul Sharma appearing for the respondent no. 2, at page 505, it is observed that, "..the Court should read the section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the court to read the section in such Page 18 of 20 HC-NIC Page 18 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT manner as to render it to some extent otiose." When the relevant provisions under the Gujarat Criminal Manual were readily available and were required to be considered and followed by the learned Special Judge before passing the impugned order, it was never dealt with or considered while allowing the prayer for granting certified copies of the entire chargesheet papers in favour of the respondent no. 2 herein. The other judgments relied upon by learned advocate Mr. Rahul Sharma appearing for the respondent no. 2 are not relevant to decide the issue in the present Revision Application, as they are on other issues which have been dealt with by the Apex Court.
In the result, for the reasons recorded hereinabove, the present Revision Application deserves to be allowed as the trial Court has committed an error in allowing the prayer made by the respondent no. 2 granting application for certified copies of the entire chargesheet papers by the impugned order dated 17th March 2016, without following the prescribed procedure, as laid down in Gujarat Criminal Manual and as provided under Secs. 207; 238 and 173 (2) to (6) CrPC.
Page 19 of 20 HC-NIC Page 19 of 20 Created On Sat Jun 11 00:45:51 IST 2016 R/CR.RA/354/2016 CAV JUDGMENT Resultantly, the present Criminal Revision Application is allowed. The impugned Order dated 17th March 2016 passed by the learned Special Judge, CBI Court No. 3, Mirzapur, Ahmedabad in CBI Special Case No. 2 of 2013 is hereby quashed and set-aside. Interim relief granted earlier stands confirmed.
(B.N. KARIA, J.) Prakash Page 20 of 20 HC-NIC Page 20 of 20 Created On Sat Jun 11 00:45:51 IST 2016