Himachal Pradesh High Court
Now Known As Progility Technologies ... vs Central Bureau Of Investigation on 30 August, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 165 of 2018 .
Date of decision: 30.8.2019 Siemens Enterprise Communications Ptv. Ltd.
Now known as Progility Technologies Pvt. Ltd. ...Petitioner Versus Central Bureau of Investigation. ...Respondent Coram The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes.
For the Petitioner: Mr.R.K. Trakru and Mr.Harish Sharma, Advocates.
For the Respondent: Mr.Anshul Bansal and Mr.Anshul Attri, Advocates.
Vivek Singh Thakur J.
Present petition has been preferred by the petitioner against dismissal of applications bearing Cr.M.P. Nos. 347-S/4 and 348-S/4 of 2018, whereby prayer for directing the prosecution and Investigating Officer, at the stage of consideration of charge under Section 227 and 228 Cr.P.C., to produce documents seized/recovered during investigation, but not relied upon in the final report under Section 173 of Cr.P.C., in case FIR No. RC0962012A0004, dated 23.2.2012, registered by Central Bureau of Investigation, Shimla, under Sections 13(2), 13(1)(d) of Prevention of Corruption Act, 1988 and 420, 471 read with Section 120-B of Indian Penal Code, has been rejected by learned Special Judge (CBI) Shimla.
2. The reason, assigned by the trial Court for rejection of the applications, is that as per order dated 28.3.2014 passed by the said Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 2 Cr.MMO No. 165 of 2018 Court in an application Cr.M.P. No. 42-S/4 of 2014, preferred by CBI, the documents requested to be produced by the applicant have been permitted to be returned by CBI to the concerned persons or .
Departments, however, in rejection order liberty has been given to the applicant/accused to procure those documents from the concerned Departments or from the Malkhana of CBI.
3. Case of petitioner is that, Investigating Officer, during investigation, had requisitioned, seized, recovered and otherwise had come into possession of many documents from various quarters, including from the accused persons, to ascertain the facts and truth into the allegations of any financial irregularity and consequential loss to the State exchequer and criminality/culpability in the matter, if any, and one of such seizure memo was prepared by the Investigating Officer on 24.2.2012, whereby documents including various supply orders placed from time to time by various formations of Army, Government Departments and Government Organizations and also various private Companies at various places across the country during 2008-2009 to the petitioner-Company for supply of similar Exchanges, as were supplied to Boarder Road Organizations (BRO), Shimla for Deepak Project, were taken in possession and from the said documents, it was clear that similar Exchanges were supplied to various quarters throughout country during the same year either at the same or at the higher prices/rates than the prices at which similar Exchanges were supplied to BRO Shimla for Deepak Project in the said year and among these documents there was a report by Court of Enquiry, ordered by the Ministry of Road Transport and Highways, Border Road Development Board, Sena Bhawan, New Delhi on 19.4.2011, with the approval of ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 3 Cr.MMO No. 165 of 2018 Ministry of Defence and recommendations dated 19.9.2011, wherein on the basis of evidence collected, it was categorically concluded that there was no financial irregularities or loss to the Government due to purchase .
of the said Exchanges from the petitioner Company and these documents are of unimpeachable character and are sufficient to contradict and demolish the allegations of FIR without taking any external help of any other evidence, falsifying the claim put forth by the Investigating Officer in the challan/report submitted under Section 173 Cr.P.C. r
4. It is further contended on behalf of petitioner Company that Investigating Officer/Agency is supposed to act fairly as fair trial is the cardinal principle of jurisprudence and a trial should be for search of truth, but not to frame the accused, in all eventualities, and further that dismissal of applications is contrary to the pronouncements of Apex Court in Satish Mehra Vs. Delhi Administration and another, (1996) 9 SCC 766; Om Parkash Sharma Vs. CBI, Delhi, (2000) 5 SCC 679; State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC, 338; Rukmani Narvekar Vs. Vijaya Satardekar and others, (2008) 14 SCC 1 and Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others, (2015) 3 SCC 123.
5. It is further contended that the order dated 28.3.2014, whereby the trial Court had permitted the CBI to return the documents to the concerned Departments, from whom those were taken in possession, was obtained by the CBI without disclosing the pendency of applications filed on behalf of accused for taking into consideration those documents. It is also case of the petitioner that provisions for hearing to be given to the accused contained in Section 227 of Cr.P.C., means ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 4 Cr.MMO No. 165 of 2018 right of the accused to produce the documents at that stage to show un- reliability and un-tenability of the prosecution case, as otherwise empty hearing to the accused will be nothing but a mere shallow formality.
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6. The petition has been opposed by the CBI by filing detailed reply. It is contended on behalf of CBI that documents sought to be produced or relied upon by the accused/petitioner are not on record and though these documents were taken in possession during investigation, but the same are not relied by the CBI for presentation of challan against the accused persons and the CBI has not suppressed or concealed any material from the Court and all those documents which were taken into possession and recovered or seized during investigation and relied upon for presentation of challan against the accused, have been mentioned in the list of relied upon documents filed with the challan and documents which were not relied upon, but kept in Malkhana were also brought in the notice of Court by filing Cr.M.P. No. 42-S/4 of 2014, wherein complete details of the documents taken in possession or seized during investigation, but not relied upon, has been given and all those documents vide order dated 28.3.2014 were permitted by the Court to be returned to the concerned quarters against proper receipt and after retaining attested copies of those documents. It is further case of CBI that accused had supplied only photocopies of documents, but not the originals thereof.
7. Relying upon State of Orissa Vs. Debendra Nath Padhi (2005)1 SCC 568 and Rukmani Narvekar Vs. Vijaya Satardekar and others, (2008) 14 SCC 1, it is contended that production of these documents at the stage before framing of charges would amount to a mini trial, which is not contemplated under Section 227 of Cr.P.C. and ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 5 Cr.MMO No. 165 of 2018 the trial Court has to consider the record of the case and the documents submitted therewith by the prosecution which does not give right to the accused to file any material or documents at the state of framing of .
charges and such right is available to the accused only at the stage of trial and trial shall commence only after framing of charges and at this stage trial Court is required to consider prima facie case against the accused for the purpose of framing of charges and the accused can be discharged at this stage in case no case is made out on the basis of material placed before it by the prosecution/Investigating Agency.
8. In Sanjaysinh Ramrao Chavan's case, (2015) 3 SCC 123, relied upon by the petitioner, the Apex Court, referring judgments passed in State of Karnataka Vs. L. Muniswamy, (1977) 2 SCC 699 and State of Bihar Vs. P.P. Sharma, 1992 Supp (1) SCC 222, has reiterated that unmerited and undeserved prosecution is an infringement of the guarantee under Article 21 of the Constitution of India and once it is found that there is no material on record to connect an accused with the crime, there is no meaning in prosecuting him and it would be a sheer waste of public time and money to permit such proceedings to continue against such a person. There can be hardly any dispute in regard to principle of criminal jurisprudence re-iterated in this judgment.
9. In Satish Mehra's case (1996) 9 SCC 766, relied upon by the petitioner Company, it was held by the Apex Court that trial Court has power to consider even that material which the accused may produce at the stage of Section 227 of Cr.P.C. In another pronouncement of the Apex Court in Om Parkash Sharma's case (2000) 5 SCC 679, relied upon by the petitioner Company, the Apex Court had reiterated the same observation, but in later judgment passed by three ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 6 Cr.MMO No. 165 of 2018 Judges Bench of the Apex court in Debendra Nath Padhi's case (2005) 1 SCC 568, considering its earlier pronouncements, judgment in Satish Mehra's case was overruled and judgment in Om Parkash Sharma's .
case was distinguished and it was held that no provision in the Cr.P.C. grants, to the accused, any right to file any material or document at the stage of framing of charge and such right is granted only at the stage of trial.
10. In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, in the circumstances of the case, production of documents on application of accused was permitted by the Apex Court before proceedings to frame charge. This judgment has also been considered, explained and distinguished in Debendra Nath Padhi's case.
11. In S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another (2005) 8 SCC 89, relying upon judgment in Debendra Nath Padhi's case, it has been observed that a Magistrate cannot be asked to look into the documents produced by an accused at the stage of framing of charge.
12. In another pronouncement in case Bharat Parikh Vs. Central Bureau of Investigation and another, (2008) 10 SCC 109, referring Debendra Nath Padhi's case, it is held that at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage and at the stage of framing of charge, the submissions on behalf of accused have to be confined to the material produced by the investigating agency and the accused will get an opportunity to prove the documents subsequently, produced by the prosecution on the order of the Court.
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13. Rukmani Narvekar's case (2008) 14 SCC 1 has been relied upon by both the parties. Petitioner Company has referred para 11 of the said judgment, whereas respondent CBI has referred paras 33, 36 .
and 37 thereof. The Apex Court in this case in paras 33, 36 and 37 has reiterated general rule but in para 22 has observed that while it is true that ordinarily defence material cannot be looked into by the Court while framing of charge in view of Debendra Nath Padhi's case, there may be some very rare and exceptional cases where some defence material when shown to the trial Court would convincingly demonstrates that prosecution version is totally absurd or preposterous and in such very rare case, the defence material can be looked into by the Court at the time of framing of charge or taking cognizance and it is further observed that, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of charges. It is further observed that this should be done in very rare cases i.e. where the defence produces such material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.
14. Similarly, in later judgment passed by the Apex Court in Ajay Kumar Parmar Vs. State of Rajasthan, (2012) 12 SCC 406, considering Debendra Nath Padhi's and Rukmani Narvekar's cases, permissibility to consider the defence evidence in rare cases has been approved, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted. (See para 16).
15. In Nitya Dharmananda alias K. Lenin and Another Vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda and ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 8 Cr.MMO No. 165 of 2018 another, (2018) 2 SCC 93, the Apex Court has held that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is .
satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet. However, it is clarified that it does not mean that defence has a right to invoke Section 91 Cr.P.C. dehors the satisfaction of the court, at the stage of framing charge.
16. Considering Debendra Nath Padhi's case, the Apex Court in Vikram Johar Vs. State of U.P. and Another, 2019 SCC Online SC 609, (para 17) has re-iterated that Section 227 was incorporated in the Cr.P.C. with a view to save the accused from prolonged harassment, which is a necessary concomitant of protracted criminal trial and it is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements.
17. In M. Natarajan Vs. State by Inspector of Police, SPE, CBI, ABB, Channai, (2008) 8 SCC 413, the Apex Court has held that when after noticing the observations made in its earlier pronouncements, the Court redefines/explains the width of the observations expressed therein, subsequent judgment must be followed, where the earlier judgment was taken note of. (See para 38).
18. Debendra Nath Padhi's case was decided on 29.11.2004, whereafter considering the said judgment in Rukmani Narvekar's case, decided on 3.10.2008, it has been clarified that in rare cases, it is permissible to the Court to consider the material at the stage of hearing ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 9 Cr.MMO No. 165 of 2018 of charge, which is not relied upon by the prosecution but which convincingly demolishes the whole prosecution version, rendering it totally absurd, preposterous or concocted. These observations in .
Rukmani Narvekar's case have also been referred by the Apex Court in subsequent judgment dated 27.9.2012 passed in Ajay Kumar Parmar's case. In Nitya Dharmananda's case, decided on 7.12.2017, it is observed by the Apex Court that in the given facts and circumstances, the Court can summon or rely upon the material, which has been withheld by the investigator/prosecutor, at the time of framing of charge, even if such material is not part of charge-sheet, but is of sterling quality demolishing the case of prosecution.
19. In Vikram Johar's case, decided on 26.4.2019, the Apex Court, after taking note of Debendra Nath Padhi's case has re-iterated the object of incorporation of Section 227 in Cr.P.C. as provision made to save an accused from prolonged harassment.
20. The Apex Court, in Rajiv Thapar and others Vs. Madan Lal Kapoor (2013) 3 SCC 330, has delineated certain parameters to determine the veracity of a prayer for quashment raised by an accused by invoking power vested in the High Court under Section 482 Cr.P.C. at the stage of issuing process or at the stage of committal or even at the stage of framing of charges. According to this pronouncement, where material relied upon by the accused is sound, reasonable and indubitable i.e. material is of sterling and impeccable quality which is sufficient to reject and overrule the factual assertions contained in the complaint leading to persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false and the said material is of such nature that it cannot be justifiably refuted by the ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 10 Cr.MMO No. 165 of 2018 prosecution and thus clearly depicting that proceedings with the trial would result in an abuse of process of Court, running contrary to purpose of serving the ends of justice; the High Court, exercising power .
under Section 482 Cr.P.C, can proceed to quash the criminal proceedings against the accused, as such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
21. The parameters, considering which the High Court is supposed to exercise the power under Section 482 Cr.P.C. to quash the criminal proceedings, would definitely be available to the trial Court for taking a decision as to whether initiation or continuation of criminal proceedings is justifiable or not. There cannot be a case that on considering certain factors it is permissible to the High Court to quash the proceedings, but impermissible to the trial Court to do so on the basis of the same material at the time of taking cognizance or at the stage of framing of charges. It would not be prudent and justifiable to hold that those, who can afford to approach High Court, would enjoy privilege of quashing of criminal proceedings but not those who cannot afford to reach High court for any reason. Therefore, the parameters culled out in Rajiv Thapar's case, are equally applicable to the criminal proceedings before the trial Court.
22. In view of judgments of the Apex Court pronounced subsequent to the judgment passed in Debendra Nath Padhi's case, it is clear that the Court is not handicapped to consider the relevant material at the stage of framing of charge, which is not relied upon by the ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 11 Cr.MMO No. 165 of 2018 investigator or prosecutor, but is of such quality that consideration thereof would result in to demolition of the case of prosecution, as purported in the charge-sheet.
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23. Undoubtedly, trial Court is not expected to conduct a mini trial at the stage of framing of charge and not to appreciate the evidence as warranted at the stage of conclusion of trial, but only to evaluate the material and documents on record along with the material being referred by the accused, if the said material conforms to the parameters laid down in Rajiv Thapar's case and other pronouncements referred supra and are of such a nature that it would convincingly establish that whole prosecution version is totally absurd, preposterous or concocted, leading to conclusion that ex facie no case is made out, there would be relevance, desirability and necessity to take note of and consider such material. In case, even, after considering the material referred by the accused, prima facie, possibility of commission of offence as alleged in the prosecution case is found in existence, the Magistrate/trial Court has to continue with the criminal proceedings in accordance with law.
24. In public welfare democratic State, not only right of fair trial is available to the accused, but fair investigation is also fundamental right under Article 21 of the Constitution and it must be paramount aim of Investigating Agency. We are not living in imperialist era of Colonial Rule, where the police/investigating agencies were meant to frame the persons at any cost, by placing the selective material, suitable to the prosecution agency or oppressive ruler, on record but withholding the relevant material from the Court and without placing complete and true material before the Court. In independent India, under the Constitutional Rule, it is expected from the Investigating Agency to act impartially and ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 12 Cr.MMO No. 165 of 2018 conduct free and fair investigation so as to place a fair picture of the entire case before the Court with its opinion for relying and rejecting the document/evidence which has come in the light during investigation. In .
case prosecution or Investigating Agency fails to act fairly, the Court is not powerless to rectify the same.
25. In present case, it is not a case where the accused person is asking for or proposing to place on record documents, which are foreign to the investigation conducted by the CBI, but it is asking for taking into consideration the documents, which were taken in possession, recovered, or seized and considered by the investigating agency during the investigation, claiming that those documents are sufficient to demolish the entire prosecution case presented in the chalan, but the trial Court has failed to consider that aspect and has dismissed the applications on the ground that documents which were relied upon by the CBI were permitted to be returned to the concerned Departments/persons from whom those were taken into possession, recovered or seized by the CBI, as those were not relied by the CBI in the charge-sheet/report filed under Section 173 Cr.P.C. The trial Court has failed to take note that the documents, sought to be considered by the trial Court, were taken in possession from none else, but the petitioner and petitioner has not received back those documents, as it is also stand of prosecution that those documents are lying in malkhana of the CBI for want of collection by the petitioner or its representatives from the CBI whereas the Court is not powerless to ensure the production of any material which is contemplated necessary for consideration to arrive at just decision in criminal proceedings pending before it. ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 13 Cr.MMO No. 165 of 2018
26. Considering the pronouncements of the Apex Court, discussed supra, in a case like present nature, where prosecution has chosen to place selected material before the Court and not rely upon .
certain documents, which were taken in possession by the Investigating Officer during investigation, but are being referred by the accused to establish that no case is made out at all, it was incumbent upon the learned Special Judge to consider the plea of accused on this count and after evaluating the material, to accept or reject the plea of accused, by returning findings as to whether despite considering the documents, not relied upon by the prosecution but referred by accused, prima facie there is convincing material to proceed further against the accused. Learned Special Judge has failed to do so.
27. In view of above discussion, impugned order is set aside and trial Court is directed to consider the applications of the petitioner/accused afresh in the light of observation made herein above, in consonance with pronouncements of the Apex Court referred supra and to take a decision as to whether the documents withheld by the CBI referred by accused are of such a nature that consideration thereof along with the documents presented with the challan would completely demolish the prosecution case, rendering the entire charge-sheet a false document and if so, to pass an appropriate order after taking into consideration of these documents and in case his findings are contrary thereto, he shall not consider these documents and shall proceed further only on the basis of material placed before him along with the charge sheet.
28. It is informed by learned counsel for the parties that next date of hearing before the learned Special Judge has been fixed on ::: Downloaded on - 29/09/2019 02:54:41 :::HCHP 14 Cr.MMO No. 165 of 2018 30.10.2019 and the record was also summoned in this Court and therefore, no effective hearing is taking place before the trial Court. In these circumstances, parties are directed to appear before learned .
Special Judge on 9th September, 2019. Copy of judgment along with record be transmitted to the trial Court forthwith.
29. The petition is allowed in the aforesaid terms, so also the pending application(s), if any.
th
30 August, 2019
(Keshav)
r to (Vivek Singh Thakur),
Judge.
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