Punjab-Haryana High Court
Sanjeev Kumar vs Central Bureau Of Investigation on 5 September, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM Nos. M-17369 & 18862 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. Criminal Misc. No. M-17369 of 2012
Sanjeev Kumar ....Petitioner
Versus
Central Bureau of Investigation
...Respondent
2. Criminal Misc. No. M-18862 of 2012
Subhash Kataria ....Petitioner
Versus
CBI Sector 30, Chandigarh
...Respondent
Date of Decision:- 5.9.2012
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- S/Shri S.S.Narula & A.D.S.Sukhija, Advocates
for the petitioners.
Mr.S.S.Sandhu, Advocate for the respondent.
Mehinder Singh Sullar, J. (Oral)
As identical points of law and facts are involved, therefore, I propose to dispose of both the indicated petitions, arising out of the same impugned order dated 21.4.2012 and same criminal case, by virtue of this common judgment, in order to avoid the repetition.
2. The epitome of the facts and material, which needs a necessary mention for the limited purpose of deciding the core CRM Nos. M-17369 & 18862 of 2012 (O&M) -2- controversy, involved in the instant petitions and emanating from the record, is that a criminal case was registered against the petitioners- accused, vide FIR No.RCCHG-2008-A0030 dated 7.11.2008 (Annexure P1), on accusation of having committed the offences punishable under Sections 120-B IPC and 7 of the Prevention of Corruption Act, 1988 by the Central Bureau of Investigation (for brevity "the CBI").
3. After the completion of investigation, the CBI submitted the challan/final police report against the petitioners-accused, in terms of section 173 Cr.PC in CBI Court at Chandigarh. The CBI relied upon a CD tape, containing the conversation between the accused, complainant and others. As the copy of CD with complete conversation was not supplied to the accused, therefore, the petitioners moved application (Annexure P3) to direct the prosecution to supply the complete transcript conversation of the voice recorded in the CD. The Special Judge directed the CBI to supply the transcript conversation of the pointed voice, by way of order dated 1.10.2010 (Annexure P4). The prosecution did not supply the complete CD, despite specific directions contained in the orders dated 1.10.2010 (Annexure P4), 8.12.2010 (Annexure P5) and 21.1.2011 (Annexure P6).
4. Finding no alternative, then, the petitioners moved another application for supplying the complete transcript conversation of the CD. The trial Judge again directed the prosecution to supply to the accused a complete transcript conversation of CD handed over by the Investigating Officer, vide detailed order dated 24.1.2011 (Annexure P7).
5. Subsequently, position remained the same, which CRM Nos. M-17369 & 18862 of 2012 (O&M) -3- necessitated the petitioners-accused to move another application (Annexure P15) for direction to CBI to remove/rectify the discrepancies/omissions in the CD. The CBI filed the reply (Annexure P16) to the application.
6. However, the Special Judge dismissed the application (Annexure P15), by means of impugned order dated 21.4.2012 (Annexure P17).
7. The petitioners-accused did not feel satisfied and preferred the present petitions to challenge the impugned order (Annexure P17), invoking the provisions of section 482 Cr.PC.
8. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant petitions deserve to be partly accepted in this context.
9. As is evident from the record, that the prosecution has relied upon the indicated transcript version of CD, but its copy was not supplied to the accused, despite repeated directions. Ultimately, in the wake of the application, the trial Judge directed the prosecution to supply to all the accused the complete transcript version of the CD in question, by virtue of order (Annexure P7), which, in substance, is as under (paras 14 &
15):-
"14. It is very interesting to note that along with the report under Section 173 Cr.P.C. the prosecution has attached the list of the articles relied upon by the prosecution, which are to be produced during the course of trial and in that list, the CD in dispute i.e. the CD handed over by the complainant is mentioned at Sr.No.6. This CD is also (the) relied upon document of the prosecution. There is no mention in the list of documents or in the list of the articles that CRM Nos. M-17369 & 18862 of 2012 (O&M) -4- which portion of the CD is (the) relied upon portion and which portion is not relevant for this case. No note has been appended with the report under Section 173 Cr.P.C. as required under Section 173 (6) Cr.P.C. that any part of the CD is not relevant to the subject matter of these proceedings. Once, the entire CD is the relied upon article by the prosecution, I found substance in the contentions of the learned defence counsel that the CD cannot be cut into pieces/portions and the complete CD is one article, which is relied upon by the prosecution, no exception under Section 173 (6) Cr.PC has been claimed by the prosecution to withheld any portion of the said CD from the accused on any ground so, the prosecution is required to supply the complete transcript of the CD to all the accused.
15. Thus, keeping in view my above discussion, the present application is hereby allowed. The prosecution is directed to supply to all the accused the complete transcription of the CD handed over by complainant Arvind Kumar Pandey to the Investigating Officer.".
10. Strange enough, the Special Judge again dismissed the application (Annexure P15) for rectification/removing the discrepancies/omissions in the CD, by way of impugned order (Annexure P17), the operative part of which is as under:-
"From the perusal of the record in the light of the aforesaid rival contentions, it is crystal clear that through order dated 24.01.2011, the prosecution was directed to supply to all the accused complete transcription of the CD handed over by complainant Arvind Kumar Pandey to the Investigating Officer. Through order dated 16.08.2011, Investigating Officer was directed to provide complete transcription. After hearing the CD, through order dated 01.12.2011, Investigating Officer was directed to prepare complete transcription of conversation/voices, time and place etc. In pursuance to above orders, the investigating officer has submitted complete transcription. The accused have further pointed out certain omissions and prayed for rectification. The Investigating Officer has shown his inability to do the same. In spite of specific directions, the Investigating Officer is not willing to remove the omissions despite being pointed out by the accused. So, accused will be at CRM Nos. M-17369 & 18862 of 2012 (O&M) -5- liberty to submit their part of the transcript, as they already have copy of complete conversation. It is well settled principle of law that the rules of procedure are handmaid of justice. The rules of procedure cannot be used to subvert the ends of justice. IN view of the above material facts and well settled principle of law, application dated 06.04.2012 for rectification of omissions in transcript is dismissed."
11. As is clear from the impugned order that the main ground, which appears to have been weighed with the Special Judge to negate the prayer of the petitioners, was that the Investigating Officer has shown his inability to rectify the omissions/discrepancies pointed out by the accused.
12. Here, to me, the trial Judge slipped into a deep legal error in this respect. Section 173(2) Cr.PC postulates that as soon as, the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed. Sub-section (5) of this section further posits 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 such report of all documents or relevant extracts thereof and the statements recorded during the course of investigation under section 161, on which, the prosecution proposes to rely and if the police officer is of the opinion that any part of any such statement is not relevant to the subject matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be CRM Nos. M-17369 & 18862 of 2012 (O&M) -6- granted to the accused and stating his reasons for making such request. Copies of such documents and statements/material referred to in sub- section (5) have to be supplied to the accused.
13. Sequelly, section 207 Cr.PC mandates 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 costs, copies of the police report, the first information report, confessions, statements, if any, recorded under section 164 Cr.PC and any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173, provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (i) 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.
14. Likewise, according to sections 226 & 227 Cr.PC, when the accused appears or is brought before the court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused and if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Otherwise, he will frame the charge, as envisaged under section 228 Cr.PC.
CRM Nos. M-17369 & 18862 of 2012 (O&M) -7-
15. A conjoint and meaningful reading of these provisions would reveal that the accused is entitled to all the documents/material, which the prosecution proposes to rely against him. It is the very valuable statutory right of the accused to claim the copies of complete set of material, which prosecution proposes to rely against him in order to effectively build up his defence. The prosecution cannot withheld or deprive the accused from the access of such material on a false pretext that the Investigating Officer has shown his inability to do the same. In spite of specific directions, he is not willing to remove the omissions despite being pointed out by the accused and that it will strengthen the defence of the accused. If such untenable excuses of the prosecution are accepted, then, the very concept of fair trial in criminal cases would pale into insignificance. Moreover, it is now well settled proposition of law only that material can legally be relied upon by the prosecution the complete copies of which, were duly supplied to the accused and not otherwise.
16. What cannot possibly be disputed here that initially, the Special Judge has directed the prosecution to provide the complete transcript version contained in the CD to the accused, by means of order (Annexure P7), but it took a somersault in reviewing its earlier order and declined the prayer of the petitioners-accused, vide impugned order (Annexure P17), which is not legally permissible. Therefore, to my mind, the trial Judge has committed a grave legal error & material procedural irregularity and the impugned order cannot legally be sustained in the obtaining circumstances of the case.
17. In the light of aforesaid reasons and without commenting CRM Nos. M-17369 & 18862 of 2012 (O&M) -8- further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, the instant petitions are partly accepted. Consequently, the impugned order (Annexure P17) is hereby set aside. The prosecution is directed to supply the complete transcript version of the indicated CD to the accused in pursuance of the initial order (Annexure P7) of the Special Judge.
18. Needless to mention that if the prosecution fails to supply the complete transcript version contained in the CD, then, the Special Judge would naturally rely upon that portion of the transcription of the CD, the copy of which was actually supplied to the accused and not otherwise.
5.9.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No