Telangana High Court
M/S. Emaar Hills Township Private ... vs The State Of Telangana And Another on 25 February, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.9949 of 2021
ORDER:
This petition is filed by the petitioner-A1 under Section 482 Cr.P.C. to quash the proceedings in Crl.M.P. No.1976 of 2021 in S.C. No.1 of 2019 dated 08.12.2021 passed by the Principal Special Judge for CBI Cases, Hyderabad, contending that the same was in violation of the law laid down by the Hon'ble Apex Court in "Re:To Issue Certain Guidelines Regarding Inadequacies and Deficiencies In Criminal Trials Vs. State of Andhra Pradesh and others".
2. Heard the learned counsel for the petitioner and Ms. Anjali Agarwal, learned Special Standing Counsel for Enforcement Directorate.
3. The learned counsel for the petitioner-A1 submitted that charge sheet was filed against the petitioner-A2 in S.C. No.1 of 2019 for the offence under Section 3 and 4 of the Prevention of Money Laundering Act (for short 'PML Act'). The predicate Dr.GRR,J 2 Crlp.No.9949 of 2021 offence was with respect to CBI case registered as CC No.6 of 2012 on the file of Principal Special Judge for CBI Cases, Hyderabad, registered for the offences under Sections 420, 409 and 477 read with 120-B IPC. In the CBI case, charges had not been framed and discharge applications were filed by the petitioner and other accused and the same were pending. The petitioner filed an application under Section 207 Cr.P.C. to direct the prosecution i.e. the 2nd respondent to furnish the list of un-relied documents by the prosecution such as statements or objects/documents, seized during the course of investigation done by the 2nd respondent. The 2nd respondent filed a counter opposing the petition on the ground that it was false and frivolous in nature. However, there was no whisper about the un-relied documents and the 2nd respondent had not specifically stated anything with respect to the un-relied documents.
4. Learned counsel for the petitioner further submitted that the learned Special Judge failed to follow the law laid down by the Hon'ble Apex Court in "Re:To Issue Certain Guidelines Regarding Inadequacies and Deficiencies In Criminal Trials Vs. State of Dr.GRR,J 3 Crlp.No.9949 of 2021 Andhra Pradesh and others". He could not have dismissed the petition on the ground that the guidelines were not yet framed by the concerned High Court. The learned Judge ought not to have dismissed the petition on the ground that the petition filed was a delaying tactic. After the initial arguments of framing of charges by the prosecution on 08.01.2020, due to the pandemic all the courts were working virtually, hence, the framing of charges could not have taken place and the said delay could not be attributed to the petitioner. On a perusal of the counter, specifically with respect to para-7, it was abundantly clear that the prosecution relied on various sources other than the predicate agency hence, there might be some other documents which were un-relied by the prosecution. The learned Judge erred in coming to a conclusion that all the material relied by the prosecution was filed along with the final report, whereas the 2nd respondent had not stated anything in their counter regarding the same. The learned Judge failed to follow the law laid down by the Hon'ble Supreme Court in V.K. Sasikala v. State, Represented by Superintendent of Police1. The impugned order was in violation of Articles 14, 21 and 141 of the 1 (2012) 9 SCC 771 Dr.GRR,J 4 Crlp.No.9949 of 2021 Constitution of India and prayed to quash the proceedings in Crl.M.P. No.3031 of 2021 in S.C. No.1 of 2019 dated 21.12.2021.
5. The 2nd respondent filed counter contending that the petitioner filed the petition mechanically without specifying the documents which were un-relied by the prosecution. Section 207 Cr.P.C. would not contemplate that the documents which were un- relied by the prosecution also to be furnished to the accused. As admitted by the petitioners all the document which were relied by the prosecution were duly furnished to the petitioner and all the accused. If any documents relied by the Investigating Officer were not filed during the course of trial, the prosecution would invoke appropriate provisions of Cr.P.C. by filing them in the Court by giving notice of the same to the petitioner. It was further contended that the 2nd respondent did not conduct any search on the premises of the accused and all the documents available with the Enforcement Directorate had been either provided by the accused themselves or gathered by the Enforcement Directorate during the course of investigation from various sources including the predicate offence agency i.e. CBI. If the contention of the Dr.GRR,J 5 Crlp.No.9949 of 2021 petitioner was accepted it would result in an absurd situation where the investigating agency would be serving the interest of the accused. The petitioner could approach the predicate offence agency i.e. CBI who conducted the search and seized the documents. The petition was devoid of merit and liable to be dismissed. The learned Special Judge was correct in dismissing the application of the petitioner as the petitioner had not even mentioned the list of documents which he was under assumption that the 2nd respondent was holding the same as not relied upon and prayed to dismiss the petition.
6. Perused the record. The record would disclose that the 2nd respondent filed the complaint before the Principal Special Judge for CBI Cases, Hyderabad under Section 200 Cr.P.C. read with Section 45 (1), 3, 4 and 8(5) of the PML Act against A1 to A13. The Court had taken cognizance of the offence under Section 4 read with 3 of the PML Act against A1 to A5, A7 to A13. On appearance of the accused before the Court on 12.07.2019, the documents relied on by the Enforcement Directorate were furnished to the petitioner as contemplated under Section 207 Dr.GRR,J 6 Crlp.No.9949 of 2021 Cr.P.C. The Special Public Prosecutor advanced his arguments on hearing on charges on 08.01.2020 as per the order of the learned Special Judge for CBI Cases, Hyderabad in Crl.M.P.No.1976 of 2021. The order would further disclose that when the court insisted the learned counsel to advance their arguments on charges, petitioner-A1 filed the application under Section 207 Cr.P.C. to furnish the un-relied documents vide Crl.M.P. No.1976 of 2021 and the said petition was dismissed on 08.12.2021. The learned Judge observed that the application was filed only to protract the proceedings to the maximum extent possible. On merits, he observed that the respondent did not make any search nor seized any document from any of the accused and the search and seizure were made by CBI in the predicate offence and as the respondent filed all the documents relied by them and no guidelines were framed by the Union of India till date as per the judgment of the Hon'ble Apex Court relied by the learned counsel for the petitioner, considered that the said decision was not applicable to the case on hand and dismissed the petition.
Dr.GRR,J 7 Crlp.No.9949 of 2021
7. The supply of documents to the accused persons is covered by the provisions under Sections 207 and 208 Cr.P.C. Though Section 173 Cr.P.C. was not having any direct bearing on the issue of supply of documents to the accused, it says that on completion of investigation, the officer in-charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report and as per Section 173(5) Cr.P.C. along with the report shall forward- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation, (b) the statements - recorded under Section 161 Cr.P.C. of all the persons whom the prosecution proposes to examine as its witnesses. As per Section 173 (6) Cr.P.C., if the police officer is of the opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interest 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 granted to the accused and Dr.GRR,J 8 Crlp.No.9949 of 2021 stating his reasons for making such request and as per Section 173 (7) Cr.P.C. 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).
8. Section 207 Cr.P.C. is pertaining to supply of copy of police report and other documents to the accused. It reads 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 therefrom 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:
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:
Dr.GRR,J 9 Crlp.No.9949 of 2021 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."
9. Section 208 Cr.P.C. is pertaining to supply of copies of statements and documents to accused in cases instituted otherwise than on a police report. The said Section is not relevant to the facts of the case at present.
10. On perusal of Section 207 Cr.P.C., while the first proviso empowers the court to exclude from the copies to be furnished to the accused, such portion as covered by Section 173 (6) Cr.P,.C., the second proviso empowers the court to direct the accused to inspect the documents which in the opinion of the court are not practicable to furnish to the accused, because of the voluminous record thereof. The Hon'ble Apex Court in V.K. Sasikala case (1 supra) held that:
"14. Seizure of a large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C., a fair amount of application of mind on the part of the investigating agency is inbuilt in the Code. Such application of mind is both with regard to the specific offence(s) that the Investigating Officer may consider to have been committed by the accused and also the identity and particulars of the specific Dr.GRR,J 10 Crlp.No.9949 of 2021 documents and records, seized in the course of investigation, which supports the conclusion of the Investigating Officer with regard to the offence(s) allegedly committed. Though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173 (5) in every situation where some of the seized papers and documents do not support the prosecution case and, on the contrary, supports the accused, a duty is cast on the Investigating Officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, it is not impossible to visualize a situation whether the Investigating Officer ignores the part of the seized documents which favour the accused and forwards to the Court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the Court would it not be the duty of the Court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution? What would happen in a situation where such documents are not forwarded by the Investigating Officer to the Court is a question that does not arise in the present case. What has arisen before us is a situation where evidently the unmarked and unexhibited documents of the case that are being demanded by the accused had been forwarded to the Court under Section 173 (5) but are not being relied upon by the prosecution. Though the prosecution has tried to cast some cloud on the issue as to whether the unmarked and unexhibited documents are a part of the report under Section 173 Cr.P.C., it is not denied by the prosecution that the said unmarked and unexhibited documents are presently in the custody of the Court. Besides, the accused in her application before the learned Trial court(IA 711/2012) had furnished specific details of the said documents and had correlated the same with reference to specific seizure lists prepared by the investigating agency. In such circumstances, it can be safely assumed that what has been happened in the present case is that along with the report of investigation a large number of documents have been forwarded to the Court out of which the prosecution has relied only on a part thereof leaving the remainder unmarked and unexhibited.
15. In a recent pronouncement in Siddharth Vashisht @ Manu Sharma V. State (NCT of Delhi) ((2010) 6 SCC 1) to which one of us (Sathasivam, J) was a party, the role of a public prosecutor and his duties of disclosure have received a wide Dr.GRR,J 11 Crlp.No.9949 of 2021 and in-depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens' rights under Articles 19 and 21 and also the active role of the court in a criminal trial have been exhaustively dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure.
16. The declaration of the law in Sidhartha Vashisht (supra) may have touched upon the outer fringe of the issues arising in the present case. However, the positive advancement that has been achieved cannot, in our view, be allowed to take a roundabout turn and the march has only to be carried forward. If the claim of the appellant is viewed in context and perspective outlined above, according to us, a perception of possible prejudice, if the documents or at least an inspection thereof is denied, looms large. The absence of any claim on the part of the accused to the said documents at any earlier point of time cannot have the effect of foreclosing such a right of the accused. Absence of such a claim, till the time when raised, can be understood and explained in several reasonable and acceptable ways. Suffice it would be to say that individual notion of prejudice, difficulty or handicap in putting forward a defence would vary from person to person and there can be no uniform yardstick to measure such perceptions. If the present appellant has perceived certain difficulties in answering or explaining some part of the evidence brought by the prosecution on the basis of specific documents and seeks to ascertain if the allegedly incriminating documents can be better explained by reference to some other documents which are in the court's custody, an opportunity must be given to the accused to satisfy herself in this regard. It is not for the prosecution or for the Court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop and if the same is founded on a Dr.GRR,J 12 Crlp.No.9949 of 2021 reasonable basis it is the duty of the Court as well as the prosecution to ensure that the accused should not be made to labour under any such perception and the same must be put to rest at the earliest. Such a view, according to us, is an inalienable attribute of the process of a fair trial that Article 21 guarantees to every accused.
17. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non- compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of the Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the Court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to in the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our Criminal Jurisprudence have to be balanced."
11. Subsequent to the above judgment, the Hon'ble Apex Court in Suo Moto Writ (Crl.) No.(s) 1/2014 in Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. The State of Andhra Pradesh and Ors., Dr.GRR,J 13 Crlp.No.9949 of 2021 arising out of Crl.A.400 of 2006 and connected matters delivered on 20.04.2021, while noticing certain deficiencies occurring in the courts while conducting criminal trials and the practice adopted by trial courts in disposal of criminal cases held that:
"11. The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr.P.C. for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified.
[Rule 4(i)]."
12. The Draft Criminal Rules on Practice, 2021, Rule 4(i) was modified as under:
"4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CR.PC:
i. Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.P.C and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O) in accordance with Sections 207 and 208, Cr.P.C.
Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material Dr.GRR,J 14 Crlp.No.9949 of 2021 objects and exhibits that are not relied upon by the Investigating Officer."
13. Placing reliance upon these guidelines issued by the Hon'ble Apex Court, the petitioner-A2 filed the present petition to direct the respondent-prosecution to supply all the documents and statements collected by it during the course of investigation. He had not specified as to what were the documents which need to be supplied to him. As per the counter filed by the 2nd respondent, the Enforcement Directorate did not conduct any search on the premises of the accused and all the documents available with the Enforcement Directorate had been provided by the accused themselves or gathered by the Enforcement Directorate during the course of investigation from various sources including the predicate offence agency i.e. CBI. On these wordings, the learned counsel for the petitioner was taking objection stating that the respondent was relying upon the documents collected by them from various sources including from the predicate offence agency i.e. CBI and they were not supplied to the petitioner. Learned Standing Counsel for the 2nd respondent submitted that all the documents which were relied by the prosecution were duly furnished to the Dr.GRR,J 15 Crlp.No.9949 of 2021 petitioner and to all the other accused and if the petitioner intended to have access to all the documents that were seized from the premises of the accused, he could approach the predicate offence agency i.e. CBI who conducted search and seized the documents and relied upon the judgment of the High Court of Delhi in CBI v. M/s. INX Media Private Limited and Others [CRL.M.C. 1338/2021 and CRL.M.A. 7654/2021 decided on 10-11-2021], wherein it was held that:
"18. In the decision reported as (2012) 9 SCC 771 V.K.Sasikala vs. State Hon'ble Supreme Court noted a common feature that seizure of a large number of documents takes place in the course of investigation in a criminal case and that after completion of the process of investigation and before submission of the report under Section 173 Cr.P.C., the investigating officer is bound to apply its mind to the two sets of documents i.e. the one which support the prosecution case and the other which support the accused, however it is not impossible to visualise a situation where the documents favouring the accused are not forwarded to the Court, even though the prayer in the said case was in relation to the documents forwarded to the Court but not relied by the prosecution.
19. Further, Clause 12.32 of the CBI (Crime) Manual 2020 also lays down the procedure of inspection of documents kept in the Malkhana on Court order. Thus Clause 12.32 of the CBI (Crime) Manual 2020 recognizes the right of the accused to carry out inspection as per the procedure laid down in the Manual of the CBI."
Dr.GRR,J 16 Crlp.No.9949 of 2021
14. Learned Standing Counsel further contended that the CBI manual provides the procedure for inspection of documents kept in the Malkhana but no such provision was available under PML Act. Section 21 of the PML Act deals with retention of records, but no records were seized by the Enforcement Directorate. Section 21 of the PML Act is also extracted to avoid any confusion in this regard.
"21. Retention of records.--
(1) Where any records have been seized under section 17 or section 18 or frozen under sub-section (1A) off section 17 and the Investigating Officer or any other officer authorised by the Director in this behalf has reason to believe that any of such records are required to be retained for any inquiry under this Act, such records may if seized, be retained or if frozen, may continue to remain frozen, for a period of not exceeding one hundred and eighty days from the day on which such records were seized or frozen, as the case may be.
(2) The person, from whom records were seized or frozen, shall be entitled to obtain copies of records.
(3) On the expiry of the period specified under sub-section (1), the records shall be returned to the person from whom such records were seized or whose records were ordered to be frozen unless the Adjudicating Authority permits retention of such records beyond the said period.
(4) The Adjudicating Authority, before authorising the retention or continuation of freezing of such records beyond the period mentioned in sub-section (1), shall satisfy himself that the records are required for the purposes of adjudication under section 8.
(5) After passing of an order of confiscation [or release under sub-section (5) or sub-section (6) or sub-section (7) of section 8 Dr.GRR,J 17 Crlp.No.9949 of 2021 or section 58B or sub-section (2A) of section 60] the Adjudicating Authority shall direct the release of the records to the person from whom such records were seized.
(6) Where an order releasing the records has been made by the Court [Adjudicating Authority under sub-section (5) of section 21], the Director or any other officer authorized by him in this behalf may withhold the release of any such record for a period of ninety days from the date of [receipt of] such order. if he is of the opinion that such record is relevant for the appeal proceedings under this Act.]".
The above provision is not relevant to the present issue on hand.
15. In V.K. Sasikala case (1 supra), the accused in her application before the trial Court furnished specific details of the documents which were unmarked and un-exhibited which were in the custody of the court required by her with specific reference to the seizure list prepared by the investigating agency while filing a petition to supply the copies of the said documents. But, in the present case, the petitioner without specifying any documents which he required was contending in a vague manner and seeking a direction to the 2nd respondent to supply all the documents and statements collected by it during the course of investigation, though the 2nd respondent was contending that they had supplied all the documents available with them. The petition being vague without Dr.GRR,J 18 Crlp.No.9949 of 2021 any details of the documents sought by the petitioner, which were seized by the predicate offence agency or the 2nd respondent, is rightly rejected by the learned Principal Sessions Judge for CBI Cases, Hyderabad vide the impugned order. Hence, this Court does not find any illegality or perversity in the order of the learned Principal Sessions Judge which seeks interference by this Court considering it as an abuse of process of law.
16. In the result, the Criminal Petition is dismissed. Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J February 25, 2022 KTL