Madras High Court
K.Sivamani vs State Represented By on 20 November, 2023
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.O.P.No.25160 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.11.2023
CORAM :
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.25160 of 2023
and Crl.M.P.No.17443 of 2023
K.Sivamani ... Petitioner
Vs.
State represented by,
The Inspector of Police,
Vigilance and Anti-Corruption,
Head Quarters,
Chennai – 600 028. ... Respondent
PRAYER : Criminal Appeal filed under Section 482 of Criminal Procedure
Code, pleased to set aside the order made in Crl.M.P.No.753 of 2023 in
C.C.No.6 of 2016 dated 19.09.2023 on the file of the Special Court for Cases
under the Prevention of Corruption Act at Chennai and may be pleased to direct
the prosecution to produce the draft Final Report of I.O.No.1 (PW31) dated
27.10.2015 and draft Final Report of I.O.No.2 (PW32) dated 07.03.2016.
For Petitioner : Mr.M.C.Swamy
For Respondent : Mr.C.E.Pratap
Government Advocate (Crl.Side)
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Crl.O.P.No.25160 of 2023
ORDER
This Criminal Original Petition has been filed seeking to set aside the order passed in Crl.M.P.No.753 of 2023 in C.C.No.6 of 2016 dated 19.09.2023 on the file of the Special Court for Cases under the Prevention of Corruption Act at Chennai, dismissing the petition filed by the petitioner under Section 91 of Cr.P.C.
2. The brief facts of the case is that the respondent Police has registered a case against the petitioner and 5 others for the offence under Sections 13(1)(d), 13(2) of Prevention of Corruption Act r/w 109 of IPC, in which, the petitioner is arrayed as A1, who is facing trial in C.C.No.6 of 2016, pending on the file of the Special Court for Cases under the Prevention of Corruption Act at Chennai. The prosecution has examined as many as 32 witnesses and marked 54 documents and closed the evidence during March 2023.
3. During trial, the first Investigation Officer namely Kumaragurubaran, Inspector of Police, who was examined as PW31, in his 2/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 evidence dated 15.12.2022 had categorically admitted that after his thorough investigation, he had formed an opinion and came to a conclusion that the petitioner/A1 did not commit any offence under Prevention of Corruption Act as well as under IPC and therefore, sent the Report dated 27.10.2015 for approval to the Director to drop further proceedings. Further, the 2 nd Investigation Officer nominated by the Department namely Ramachandra Moorthy, Inspector of Police, who was examined as PW32, had also concurred with the Report of PW31 that the petitioner did not commit any offence under Prevention of Corruption Act as well as under IPC and he had also sent his Report dated 07.03.2016 recommending only to take departmental action against the petitioner for certain procedural lapses.
4. However, subsequently, for reasons best known, the 2nd Investigation Officer had filed the final report based on which, the case was taken up for trial in C.C.No.6 of 2016. Finding that the two Reports dated 27.10.2015 and 07.03.2016 are desirable for the purpose of trial, the petitioner had filed the petition in Crl.M.P.No.753 of 2023 under Section 91 of Cr.P.C, seeking to produce those documents before the trial Court.
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5. The said prayer was objected by the respondent and the learned trial Judge, holding that the draft final reports sought for by the petitioner are confidential reports and also holding that the petitioner had filed the petition at the fag end of trial, had dismissed the petition in Crl.M.P.No.753 of 2023 vide order dated 19.09.2023. Against which, the present petition has been filed.
6. Mr.M.C.Swamy, learned counsel for the petitioner submitted that the petitioner is an innocent person and the witnesses PW31 and PW32, who are the earlier investigating Officers, after thorough enquiry, finding that petitioner/A1 had not committed any offence under Prevention of Corruption Act as well as under IPC, have filed two draft final reports absolving the petitioner. He further submitted that the 2nd investigation officer /PW32, while filing the final report had stated that no offences have been made out by the petitioner/A1 under Prevention of Corruption Act as well as under IPC and he had only recommended to take departmental action against the petitioner for certain procedural lapses.
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7. He further submitted that the draft final report filed by PW31 dated 27.10.2015 and by PW32 dated 07.03.2016 are crucial documents for deciding the innocence of the petitioner and thereby, they fall into the category of documents which are desirable for the purpose of trial. The prosecution has been closed and the petitioner being an accused is entitled to enter his defence and produce his evidence and he has also been given the right to apply to the Court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross examination or the production of any document or other thing for which the Court has to pass a reasoned order.
8. He also submitted that the documents called upon are not the confidential documents and only at the defence stage, the petitioner had intended to call for those documents to prove his innocence. He further submitted that the petitioner came to know about the draft final reports dated 27.10.2015 and 07.03.2016 only after examination of PW31 and PW32 and thereby, he was unable to cross examine the Sanctioning Authority, PW1 on the aspect of according sanction. Bereft of those documents, the petitioner was 5/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 unable to confront PW1 and thereby, the petitioner had filed an application to recall PW1, PW31 and PW32 for the purpose of cross examination and the petition was dismissed by the lower Court, against which, the petitioner had approached this Court and this Court by an order dated 13.10.2023 in Crl.O.P.Nos.23779 & 23780 of 2023 had permitted the petitioner to recall PW1, PW31 and PW32. He further submitted that the case stands posted on 23.11.2023 for cross examination and the production of the draft final reports dated 27.10.2015 and 07.03.2016 are required for effective cross examination.
9. Learned counsel for the petitioner further submitted that the right of fair trial is a facet of criminal law and that the duty on the Public Prosecutor is not merely to ensure that the accused is punished, the Court should also ensure that there is fair play in the proceedings by the prosecution and all relevant facts and materials are brought before the Court in order for the determination of truth and justice.
10. He further submitted that the application has been filed immediately after closure of the prosecution evidence. He also submitted that 6/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 when there is categorical admission by PW31 and PW32 with regard to the forming of opinion in filing the draft final reports absolving the petitioner, the accused should be given a chance of fair defence, particularly, when non-
production or disclosure of such a document would affect administration of criminal justice and cause prejudice to the accused. He also submitted that after amendment of the Criminal Rules of Practice, 2019 and introduction of Rule 26-A, the duty is cast upon the prosecution is give the list of statement of witnesses recorded, the list of documents and the materials seized which are relied and un-relied upon by the prosecution.
11. Learned counsel for the petitioner further submitted that the trial Court without taking into consideration the necessity and desirability of the documents by wrongly construing that the draft final reports are confidential documents and holding that the application has been filed to protract the trial, had committed error in dismissing the application. Thereby, he prayed that the impugned order dated 19.09.2023 may be set aside and the direction may also be issued to the respondent for production of the draft final reports before the Court.
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12. In support of his contention, he relied on the judgment of the Hon'ble Apex Court in Manoj & Others vs. State of Madhya Pradesh reported in (2023) 2 SCC 353. The relevant paragraphs are extracted hereunder :-
"199. A Public Prosecutor (appointed under Section 24CrPC) occupies a statutory office of high regard. Rather than a part of the investigating agency, they are instead, an independent statutory authority [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] who serve as officers to the court [Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277 :
(2013) 3 SCC (Civ) 26 : (2013) 2 SCC (Cri) 978 : (2013) 2 SCC (L&S) 88] . The role of the Public Prosecutor is intrinsically dedicated to conducting a fair trial, and not for a “thirst to reach the case in conviction”. This Court in Shiv Kumar v. Hukam Chand [Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277] further held that : (SCC p. 472, para 13) “13. … If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused.”
200. In Manu Sharma v. State (NCT of Delhi) [Manu Sharma v.
State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] (hereafter “Manu Sharma”) it was concluded that : (SCC p. 74, para 187) “187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused.” 8/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023
201. In Manu Sharma , the appellants in question had argued that the right to fair trial included a wide duty of disclosure on the Public Prosecutor, such that non-disclosure of any evidence — whether or not relied upon by the prosecution—must be made available to the defence. This Court considered Sections 207 and 208CrPC, Rule 16 [ Rule 16 of Chapter II, Part VI of the Bar Council of India Rules under the Advocates Act, 1961:“16. An advocate appearing for the prosecution in a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided.”] of the Bar Council of India Rules (which is limited to evidence on which the Prosecutor proposes to rely on), and English law. The Common law position culled out was that subject to exceptions like sensitive information and public interest immunity, the prosecution should disclose any material which might be exculpatory to the defence. Such a position, however, was not accepted by this Court, in its totality. It was held that such obligations are on a different footing in India, given the fundamental canons of our criminal jurisprudence founded on Articles 20 and 21 of the Constitution, which require not just the investigating agency, but also courts in their own independent field, to ensure that investigation is fair and does not hamper the individual's freedom, except in accordance with law i.e. ensure adherence to the rule of law.
202. Relevant extracts that merit repetition are : (Manu Sharma case , SCC pp. 80-81, paras 199 & 201-02) “199. It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a 9/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society.
***
201. Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law. The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation. These well-established principles have been stated by this Court in Sasi Thomas v. State [Sasi Thomas v. State, (2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72] , State of T.N. v. Surya Sankaram Karri [State of T.N. v. Surya Sankaram Karri, (2006) 7 SCC 172 : (2006) 3 SCC (Cri) 225] and T.T. Antony v. State of Kerala [T.T. Antony v. State of Kerala, (2001) 6 SCC 181 : 2001 SCC (Cri) 1048] .
202. In Nirmal Singh Kahlon v. State of Punjab [Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 :
(2009) 1 SCC (Cri) 523] this Court specifically stated that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. We have referred to this concept of judicious and fair investigation as the right of the accused to fair defence emerges from this concept itself. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to receive in accordance with law is not denied to him contrary to law.” 10/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023
203. The scheme of the CrPC under Chapter XII (Information to Police and Powers to Investigate) is clear — the police have the power to investigate freely and fairly; in the course of which, it is mandatory to maintain a diary where the day-to-day proceedings are to be recorded with specific mention of time of events, places visited, departure and reporting back, statements recorded, etc. While the criminal court is empowered to summon these diaries under Section 172(2) for the purpose of inquiry or trial (and not as evidence), Section 173(3) makes it clear that the accused cannot claim any right to peruse them, unless the police themselves, rely on it (to refresh their memory) or if the court uses it for contradicting the testimony of the police officers. [Mukund Lal v. Union of India, 1989 Supp (1) SCC 622 : 1989 SCC (Cri) 606; Malkiat Singh v. State of Punjab, (1991) 4 SCC 341 : 1991 SCC (Cri) 976]
204. In Manu Sharma, in the context of police diaries, this Court noted that “[t]he purpose and the object seems to be quite clear that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation”. This object is rendered entirely meaningless if the police fail to maintain the police diary accurately. Failure to meticulously note down the steps taken during investigation, and the resulting lack of transparency, undermines the accused's right to fair investigation; it is up to the trial court that must take an active role in scrutinising the record extensively, rather than accept the prosecution side willingly, so as to bare such hidden or concealed actions taken during the course of investigation. [ Role of the courts in a criminal trial has been discussed in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999.]
205. In the present case, the trial court ought to have inquired more deeply into the role of DW 1, given that by her own deposition she had admitted to analysing call detail records and involvement in Neha's arrest — all of which had been suppressed by the prosecution side, for reasons best known to them. In this context, a 11/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 reading of Sections 91 and 243CrPC as done in Manu Sharma , is important to refer to : (Manu Sharma case, SCC p. 85, para 217) “217. … Section 91 empowers the court to summon production of any document or thing which the court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-examination or the production of any document or other thing for which the court has to pass a reasoned order.”
206. The Court went on to elaborate on the due process protection afforded to the accused, and its effect on fair disclosure responsibilities of the Public Prosecutor, as follows : (Manu Sharma case , SCC pp. 85-87, paras 218-222) “218. The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the 12/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 truth, that document should also be disclosed to the accused.
219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. These provisions not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub-section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression “documents on which the prosecution relies” are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of 13/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 investigation as per the requirement of Section 170(2) of the Code.
220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.
221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.
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222. The concept of disclosure and duties of the Prosecutor under the English system cannot, in our opinion, be made applicable to the Indian criminal jurisprudence stricto sensu at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non-furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any setback in the facts and circumstances of the case. The accused even did not raise this issue seriously before the trial court.”
207. In this manner, the Public Prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the accused's right to fair investigation, when faced with the might of the State's police machinery.
208. This view was endorsed in a recent three-Judge Bench decision of this Court in Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re v. State of A.P. [Criminal Trials Guidelines Regarding Inadequacies & Deficiencies, In re v. State of A.P., (2021) 10 SCC 598 : (2022) 1 SCC (Cri) 100] This Court has highlighted the inadequacy mentioned above, which would impede a fair trial, and inter alia, required the framing of rules by all States and High Courts, in this regard, compelling disclosure of a list containing mention of all materials seized and taken in, during investigation—to the accused. The relevant draft guideline, approved by this Court, for adoption by all States is as follows :
(SCC p. 608, para 21) “21. … ‘… 4. Supply of documents under Sections 173, 207 and 208CrPC.—(1) Every accused shall be supplied 15/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 with statements of witness recorded under Sections 161 and 164CrPC and a list of documents, material objects and exhibits seized during investigation and relied upon by the investigating officer (IO) in accordance with Sections 207 and 208CrPC.
Explanation : The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the investigating officer.”
209. In view of the above discussion, this Court holds that the prosecution, in the interests of fairness, should as a matter of rule, in all criminal trials, comply with the above rule, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The presiding officers of courts in criminal trials shall ensure compliance with such rules."
13. The respondent has filed the detailed counter.
14. Mr.C.E.Pratap, the learned Government Advocate (Crl.Side) submitted that there had been a delay in filing the petition under 91 Cr.P.C and the petitioner has filed the same at the fag end of trial for protraction. He further submitted that the draft final reports are prepared before conclusion of investigation and after thorough investigation the final report has been filed and that they have no relevance to the case. The respondent has not placed any reliance on those documents and they are not necessary or desirable for the 16/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 purpose of deciding their case and thereby, he prayed for dismissal of the petition.
15. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) for the respondent and perused the materials available on record.
16. This Court on the previous occasion had directed the Investigation Officer to produce the draft final reports dated 27.10.2015 and 07.03.2016 and perused it. Having perused the documents, this Court is of the opinion that they are not confidential final reports. Criminal Rules of Practice has been amended and Rule 26A has been introduced. For better appreciation, the relevant rules Rule 25 and Rule 26A are extracted hereunder :-
25. Filing of final report by police and complaint by other investigation agencies.-
(1) Final report by police and complaint by other investigation agencies shall normally be received on all working days at fixed hours by the Court having jurisdiction to receive them. On such receipt, the same shall be entered in the "Register 17/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 of Papers Received" in Administrative Form No. 60 and in the First Information Report Register in Administrative Form No. 18 (Criminal Register No. 18). In cases, where it is shown to the satisfaction of the Judge or Magistrate that the accused in detention in the case would become entitled to be released on bail under proviso to Section 167 of the Code if the final report or complaint is not filed immediately, the Judge or Magistrate, as the case may be, shall receive the final report or complaint even on a holiday or beyond the working hours of the Court.
(2) The officer-in-charge of the police station forwarding the final report of any investigation under sub-section (2) of Section 173 of the Code, shall file in Court along with such report, as many copies of such report and Section 207 of the Code as there are accused in the case. Whenever the Court accepts the photocopies of the documents certified by the Investigating Officer filed along with the final report, they shall be compared with the originals and certified by the Head Ministerial Officer and furnished to the accused to avoid delay and the case can be committed to the Court of Sessions or disposed of by the Trial Court, as the case may be.
(3) Nothing contained in these rules, shall, however, preclude the police officer from making any request to the Court under sub-section (6) of Section 173 of the Code to exclude any part of any statement recorded under Section 161 of the Code from the copies to be granted to the accused or the Court from excluding such part from such copies.
(4) Complaints filed by other investigating agencies and private complaints shall be accompanied by as many copies of the complaint and relied upon documents as similar to the number of accused in the case.
(5) Except cases arising under the Juvenile Justice (Care and Protection of Children) Act, 2015 (Central Act 2 of 2016), the 18/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 investigating officer shall take photograph of the accused in warrant cases by resorting to Section 5 of the Identification of Prisoners Act, 1920 (Central Act 33 of 1920) after identification parade, if required, is held and then, submit the photographs along with the final report. Such photographs can be taken in the prison, if the accused is in judicial custody, in the presence of the officer- in-charge of the prison, after obtaining orders from the Magistrate. Where the accused voluntarily gives his photograph, the Investigating Officer shall accept and submit the same along with the final report.
(6) Final report filed by police / complaint filed by other investigating agency shall not be returned even if they are defective. A separate memorandum should be issued to rectify the defect. If the defects are not rectified within three months, the Court shall report the matter to the Commissioner of Police/ Superintendent of Police, as the case may be. In the absence of defects, the same shall be taken on file within three days from the date of receipt.
(7) While receiving the final report, the Head Ministerial Officer shall verify whether the same is accompanied by the following documents, wherever applicable :-
(i) First Information Report;
(ii) Complaint or Statement of complainant ;
(iii) Charge sheet with memo of evidence;
(iv) Statement of witnesses recorded under Section 161 of the Code. Where the police have not recorded the statement of a particular witness, the same shall be specifically mentioned in the Memo of Evidence ;19/26
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(v) Accident Register Copy with opinion of the doctor;
(vi) Post-mortem Certificate;
(vii) Viscera Report:
(viii) Biology Report;
(ix) Serology Report;
(x) Chemistry Report;
(xi) Observation Mahazar;
(xii) Seizure Mahazar;
(xiii) Police Form 91 (for Tamil Nadu) and Police Form 95 (for Puducherry) for seizure of properties;
(xiv) Rough sketch;
(xv) Photographs if the photographer has been cited as witness.
Such photographs shall bear the certification under Section 65-B of the Evidence Act;
(xvi) Confession statement of the accused recorded by the police;
(xvii) Statement of the accused under Section 164 of the Code recorded by the Court, if any;
(xviii) Proceedings of the Test Identification Parade, if any;
(xix) Statement of witnesses under Section 164 of the Code recorded by the Court, if any;
(xx) Requisition given by the Inspector of Police for sending of 20/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 properties for Chemical Analysis;
(xxi) Office copy of the covering letter of Committal Court for sending the properties to laboratory as per the request of the police;
(xxii) Requisition given by the Inspector of Police to conduct post-mortem on the body of the deceased;
(xxiii) Inquest report with questionnaires;
(xxiv) Material objects as per seizure mahazar, if any;
(xxv) Alteration report, if any;
(xxvi) Death intimation received from the hospital;
(xxvii) Dying declaration of the injured / deceased, if any;
(xxviii) Sexual offence certificate;
(xxix) DNA Test report; and (xxx) Community Certificate.
[(xxxi) List of statements of witnesses recorded and list of documents and materials seized, relied upon and not relied upon by the prosecution.] (Added by ROC No. 48768-A/2017/F1 of High Court of Madras (SRO C-11/2022, dated 23-03-2022) w.e.f. 23-03-2022.
P.S.:
(i) Final Report should not be returned on the ground that item nos. (vii) to (x) and (xxix) above have not been filed. Such report can be brought on record subsequently either under 21/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 Section 293 or 294 of the Code.
(ii) If such report reaches the Magistrate after the committal proceedings, the same shall be sent immediately to the Sessions Court after furnishing a copy to the Investigating Officer, free of cost.
(8) On requisition by the investigating agency, if any expert opinion is sought by the Court, the communication from the Court to the expert, shall specify that a copy of the report be sent to investigating agency concerned. As and when the opinion of the expert is received directly by the Court, a photocopy of the same shall be furnished to the investigating agency, free of cost, if a copy of it has not been given to the investigating agency.
(9) System generated final report filed by the police manually or electronically shall be accepted by the Court.
(10) In the final report and complaint, the e-mail id and mobile number of the complainant, witnesses and accused, if available, shall be furnished.
26. Cognizance of the offence (................) 26A. Furnishing of list and right of inspection.-
(1) The Court shall furnish a copy of the list referred to in clause (xxxi) of sub-rule (7) of rule 25 to the accused while furnishing copies under Section 207 of the code.
(2) After the appearance of the accused before the Court in the case, the accused or his advocate may inspect the original records 22/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 of the case with the permission of the Court in the presence of a responsible officer nominated by the Court during Court hours.
17. In this Case, during the course of cross examination of PW31 and PW32, categoric admissions have been made by the witnesses that they have prepared the draft final reports absolving the petitioner. This Court called for and perused those documents and though those documents are not relied upon by the prosecution, they are not confidential documents. As per Rule 26-A (1) of the Criminal Rules of Practice, the respondent is mandated to furnish a copy of the list as referred to in clause (xxxi) of sub-rule (7) of rule 25 to the accused while furnishing copies under Section 207 of the code.
18. In the opinion of this Court, production of the draft final reports are necessary or desirable for the purposes of trial. Further, since, now the petitioner has recalled the witnesses PW1/Sanctioning Authority, PW31 and PW32, he has a chance of cross examining the PW1/Sanctioning Authority with regard to grant of sanction sans the draft final reports dated 27.10.2015 and 07.03.2016. Thereby, the order passed by the Special Court for Cases under the Prevention of Corruption Act at Chennai in Crl.M.P.No.753 of 2023 in 23/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 C.C.No.6 of 2016 dated 19.09.2023 is set aside and the respondent is directed to produce the draft final reports dated 27.10.2015 and 07.03.2016 before the trial Court on the next hearing date.
19. With the above observations, the Criminal Original Petition stands ordered. Consequently, connected miscellaneous petition is also closed.
20.11.2023 Index : Yes / No Speaking / Non-speaking Neutral Citation : Yes / No ham Note : Issue order copy on 21.11.2023 24/26 https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 To
1. The Special Judge for the Cases under Prevention of Corruption Act, Chennai.
2. The Inspector of Police, Vigilance and Anti-Corruption, Head Quarters, Chennai – 600 028.
3. The Public Prosecutor, High Court of Madras.
25/26https://www.mhc.tn.gov.in/judis Crl.O.P.No.25160 of 2023 A.D.JAGADISH CHANDIRA, J.
ham Crl.O.P.No.25160 of 2023 and Crl.M.P.No.17443 of 2023 20.11.2023 26/26 https://www.mhc.tn.gov.in/judis