Madras High Court
Mr.V.Krishnamoorthy vs Hasan Mohamed Jinnah on 8 December, 2008
Author: K. Mohan Ram
Bench: K. Mohan Ram
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 08/12/2008 *CORAM THE HONOURABLE MR. JUSTICE K. MOHAN RAM +CRL.RC.1488 of 2008 #P.K.Shanmuga Sundaram $State !FOR PETITIONER : Mr.V.Krishnamoorthy ^FOR RESPONDENT : Hasan Mohamed Jinnah :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8.12.2008 CORAM THE HONOURABLE MR. JUSTICE K. MOHAN RAM CRL.R.C.No.1488 of 2008 and M.P.No.1 of 2008 P.K.Shanmuga Sundaram ... Petitioners Vs. State Rep by Inspector of Police, CBCID Metro Unit Chennai. ... Respondent Criminal Revision Petitions filed under Section 397 r/w 401 of Cr.P.C. against the Judgment of the learned XI Metropolitan Magistrate, Saidapet, Chennai in Crl.M.P.No.3944 of 2007 in C.C.No.8875 of 2002 dated 07.08.2008 and set aside the same.
For Petitioners : Mr.V.Krishnamoorthy
For Respondent : Mr. Hasan Mohamed Jinnah
Govt. Advocate (Crl.Side)
O R D E R
Admit.
2.Mr.Hasan Mohamed Jinnah, learned Government Advocate (Crl. Side) takes notice for the respondent.
3.With the consent of the learned counsel appearing on either side, the Criminal Revision Case itself has been taken up for the final disposal.
4.The learned counsel for the petitioner submitted that the petitioner is facing trial in C.C.No.8875 of 2002 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai for the alleged offences under section 419 and 420 IPC; a charge sheet was filed even in the year 2002 and so far thirteen witnesses have been examined and at this stage, the investigating officer, the respondent herein had filed Crl.M.P.No.3944 OF 2007 under section 173(5) of Cr.P.C., seeking permission to file certain documents, the said petition was allowed by the learned Magistrate and being aggrieved by that, the petitioner is before this Court by way of revision.
5.The learned counsel for the petitioner submitted that even according to the respondent, the documents which are now sought to be produced were available even in the year 2002, but by mistake and oversight the same were not produced before the Court and hence has sought for permission to produce those documents. The learned counsel submitted that having waited for all these years, it is not open to the respondent to produce those documents at the fag end of the trial.
6.The learned counsel for the petitioner submitted that section 173(5) Cr.P.C., reads as under:
"173(5) When such report is in respect of a case to which section 170 applies the police officer shall forward to the Magistrate along with the report---
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b)the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses."
The provision under section 173(5) Cr.P.C. is mandatory in nature and as such it is always incumbent on the part of the respondent to produce all the documents which the prosecution proposes to rely upon at the earliest.
7. Countering the said submission, Mr.Hasan Mohamed Jinnah, learned Government Advocate (crl side) submits that only due to mistake and inadvertence the documents which are now sought to be produced could not be produced earlier and if production of such document is permitted no prejudice would be caused to the petitioner. The learned Government Advocate further submitted that the provisions contained in section 173(5) of Cr.P.C., are not mandatory in nature, but only directory.
8.I have considered the said submissions made by the counsel appearing on either side, produced the materials available on record and the order passed by the learned Magistrate.
9.Before considering the aforesaid submissions, it will be useful to refer to the decision rendered in the case of CENTRAL BUREAU OF INVESTIGATION Vs R.S.PAI AND ANOTHER reported in 2002 Supreme Court Cases (Cri.) 950 and in the said decision, after considering the scope of 173(5) of Cr.P.C., the Apex Court in paragraph No.7, has laid down as under:
"From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court. In my view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word shall used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under section 173(4) of the Code of Criminal Procedure, 1989 was considered by this Court in Narayan Rao v. State of A.P. (SCR at p.293) and it was held that the word shall occurring in sub-section (4) of Section 173 and sub-section (3) of Section 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence the impugned order passed by the Special Court cannot be sustained."
10.A careful reading of the aforesaid decision makes it abundantly clear that as per the law laid down in NARAYANAN RAO Vs. STATE OF A.P. reported in AIR 1957 SC 737, the word shall occurring in sub-section (4) of Section 173 and sub-section (3) of Section 207-A is not mandatory but only directory in nature.
11.Having held so, it is further observed that since there is no specific provision, it cannot be held that additional documents cannot be produced subsequently. If some mistake had crept in at the time of the filing of the charge sheet, it is always open to the investigating officer to produce the same with the permission of the trial Court. If the order of the learned Magistrate is considered in the light of the aforesaid dicta laid down by the Apex court, it cannot be said that the order sought to be revised suffers from any infirmity, irregularity or illegality. Therefore this Court is of the opinion that there is no reason to interfere with the same. Accordingly, the above Criminal Revision Case is dismissed.
8.12.2008
Index :yes
Internet :Yes
rpa
To
1.The Inspector of Police,
Inspector of Police,
CBCID Metro Unit,Chennai.
2.The XI Metropolitan Magistrate, Saidapet.
3. The Public Prosecutor, High Court, Madras 104.
K.MOHAN RAM J,
RPA
CRL.R.C.No.1488 of 2008
8.12.2008