Madras High Court
State Rep. By The vs A1-Fine Future @ Fine Futures @ Fine on 14 September, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.OP.No.17480 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 17.08.2022
Pronounced on : 14.09.2022
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.OP.No.17480 of 2021 and
Crl.MP.No.9594 of 2021
State rep. by the
Deputy Superintendent of Police,
EOW-II, Coimbatore,
DCB Cr.No.19/2012,
Coimbatore District ..Petitioner
Vs.
1.A1-Fine Future @ Fine Futures @ Fine
Futuress @ Fine Futuresss @ Fine Wayss @
Bestwayss @ Bestwaay @ Aaaimmsure @
Way2success @ Gudwayss @ Goodaaim
Residential and Official Address of A2 & A3
respectively – Represented by A2 to A5
1) No.3, Duraisamy Layout,
Peelamedu, Coimbatore
2) 10/33, PLS Nagar, Phase-II,
R.G.Pudur, Coimbatore
3) Door No.4,5 & 6 Shrinagar Nagar,
Peelamedu, Coimbatore
4) Door No.37, Sri Varaga Moorthy Avenue,
Kumutham Nagar, NRI Garden, Coimbatore
2.A.Senthil Kumar
3.M.Vivek
4.M.Nithiyanandam
5.R.Sathyalakshmi
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Crl.OP.No.17480 of 2021
6.Thenmozhi
7.Sumathi
8.Tamilarasi
9.Venkatarameshkumar
10.Sarathambigai
11.T.Yavana Kathiravan
12.V.Mini
13.Vasanthi
14.Vimala Jeyabalan
15.A.Surendran
16.S.Jayanthi
17.S.Saraswathi
18.Mohan
19.A.D.Marimuthu
20.K.Selvan
21.S.Palanisamy
22.D.Gunasekaran
23.K.Velliangiri
24.R.Lakshmanasamy
25.M.Velusamy
26.A.Shanthamoorthy
27.P.Loganathan
28.V.Ganesan
29.S.Vellingiri
30.V.K.Elango
31.M.Somu
32.R.Karuppuamy
33.S.Sakthivel
34.K.Chinnasamy
35.S.Manokaran
36.M.Jeeva
37.P.Balasubramaniam
38.P.Dhandapani
39.K.Manokaran @ Prabhu
40.P.Manikandan
41.P.Murugesan
42.Sivasubramaniam
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Crl.OP.No.17480 of 2021
43.V.Prakasam
44.S.Muthukumar
45.Selvakumar
46.N.Murugesan
47.S.Vellingiri
48.Rangarajan ..Respondents/A1 to A48
PRAYER:
Criminal Original Petition is filed under Section 482 of Cr.P.C.
praying to set aside the order dated 09.04.2021 made in Crl.MP.No.600
of 2021 in CC.No.15 of 2013 on the file of the Special Judge, Special
Court under TNPID Act, Coimbatore by allowing this criminal original
petition.
For Petitioner : Mr.Hassan Mohammed Jinnah,
State Public Prosecutor
Assisted by
Mr.S.Sathish,
Government Advocate(crl.side)
For Respondents
For R2 : Mr.R.Vivekanandan
for Mr.Ramprakash Rajagopal
For R3,4,6,12,13 : Mr.R.Vivekanandan
For R5 : Mr.A.Parthasarathy
For R7 to 11, 17 : Mr.R.Guruprasad
For R14 & 16 : Mr.R.Ganesh Kumar
For R18 to 20,36 : Mr.A.Mohammed Ismail
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Crl.OP.No.17480 of 2021
ORDER
This criminal original petition has been filed praying to set aside the order dated 09.04.2021 made in Crl.MP.No.600 of 2021 in CC.No.15 of 2013 on the file of the Special Judge, Special Court under TNPID Act, Coimbatore.
2. This criminal original petition has been filed challenging the order passed in Crl.MP.No.600 of 2021 in CC.No.15 of 2013 dated 09.04.2021 on the file of the Special Judge, Special Court under TNPID Act, Coimbatore, thereby dismissed the petition filed under Section 207(v) of Cr.P.C. to give necessary orders for furnishing copies to the accused through in compact disc form and scanned copies in pen drive and also permit the accused persons to peruse the documents on filing the petition.
2.1 The case of the prosecution is that the accused persons circulated advertisements and canvassed the general public that deposits Page 4 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 are invited in their companies and their companies would pay Rs.8,500/- per month as monthly returns for each deposit of Rs.1 lakh for 5 years and that they would return back the deposit amount to the depositors at the end of fifth year. Enticed by these advertisements / false assurances, A18-Mohan canvassed and assured to give high returns to the complainant. He has deposited Rs.1,50,000/- in A1-Financial Establishment through A-18. As assured, he was paid Rs.12,750/- regularly as monthly returns from March 2012 to August 2012. Hence, the complainant deposited another amount of Rs.3,50,000/- on 01.08.2012 in A1 Financial Establishment through Mohan. The assured monthly returns were not paid to the complainant during the months of October and November 2012. Later, A2 and A3 had absconded with the deposit amount and hence, he has made the complaint for recovery of his deposit amount i.e. Rs.5,00,000/-.
2.2 Thereafter, investigation was transferred to the Economic Offences Wing-II, Unit, Coimbatore. FIR was also altered, thereby included the offences under TNPID Act. After completion of Page 5 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 investigation, the preliminary charge sheet was laid as against A1 to A5 on 03.05.2013 for the total default amount of Rs.1,94,64,695/- with regards to 258 complainants/ depositors before the trial court. The same has been taken cognizance in CC.No.15 of 2013. Investigation was conducted and first additional charge sheet was laid against A1 to A45 on 01.02.2014 for the default of deposited amount to the tune of Rs.102,62,52,595/- After completion of further investigation, second additional charge sheet was also laid as against A1 to A5 dated 22.12.2014 for the default of deposited amount of Rs.66,39,15,570/- Accordingly, A2 to A47 canvassed the depositors to make deposits with A1 company. Accordingly, they have collected deposits from the public, thereby cheated the depositors. There are 25,680 statements and 16,256 documents were collected in respect of Rs.189,15,24,230/- of 25,389 depositors. Each copy contains more than 5 lakh pages which costs more than Rs.2,50,000/-. In order to avoid such huge process, the petition was filed before the trial court seeking permission to furnish free copies to the accused by way of digital format.
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3. The learned State Public Prosecutor appearing for the petitioner submitted that a copy of the charge sheet along with annexures to be supplied to a single accused costs about Rs.2,50,000/- and the total cost to furnish the copies to all the accused persons is more than Rs.1,25,00,000/-. An alternate mode is available to the accused to inspect the documents under the proviso of Section 207 of Cr.P.C. when the document is voluminous such as ledger/minute book, etc. Volume of case records are very high and it could not be able to prepare the copies for furnishing to each accused.
3.1 The learned State Public Prosecutor further submitted that there is no ambiguity that supply of copies of documents provided as per Section 207 of Cr.P.C. is fundamental right and that the law guarantees right of fair trial to all the accused. However, in the present case, the total number of pages of the documents to be given to one accused is about 5,00,000 pages and that it adds up to 2,40,00,000/- pages for 48 accused. The cost of providing the copies under Section 207 of Cr.P.C. for one accused is more than Rs.2,50,000/- and it costs more than Page 7 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 Rs.1,25,00,000/- for all 48 accused persons. Clause (i) to (iv) of Section 207 of Cr.P.C. are mandatory provisions. It cannot be said that second proviso is only applicable to Section 207 (v) of Cr.P.C. It mentions that the police officer shall forward to the Magistrate along with the report, the documents and statements as mentioned under sub section (5) of Section 173. It consists 2 sub-clauses a and b. Sub clause (b) includes statements recorded under Section 161 of Cr.P.C. If those statements do not come under Section 207(v) of Cr.P.C., then the legislature should have mentioned only Section 173(5)(a) in Section 207(v) of Cr.P.C. But it has mentioned as Section 173(5) of Cr.P.C. alone, which includes both the sub clauses (a) and (b). Thus, 161 statement comes under Section 207(v) of Cr.P.C. and it is covered by second proviso to Section 207(v) of Cr.P.C. Therefore, when 161 statements are voluminous, the Magistrate 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 the court. Likewise, in the Criminal Rules of Practice, 2019, Rule 25, sub-clause (2) deals with only the general procedure to be followed by the officer in charge of the police station and it does not mention as to what has to be gone when the records are voluminous. If the documents are not Page 8 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 voluminous, then the officer in charge would have to necessarily file as many copies of final report and other documents mentioned in clause No.(ii), (iii) and (v) of Section 207. Whereas in the case on hand, the documents are voluminous and Rule 25(2) of Criminal Rules of Practice, 2019 is silent on this aspect. Law also would have to evolve according to the growing technology.
3.2 He further submitted that there is no dispute that the copies will have to be supplied by the prosecution. However, hard copies of the documents cannot be given to the accused since they are voluminous as per proviso 2 of Section 207 of Cr.P.C. All the documents can be supplied to the accused through pen drive. Proviso to Section 208 says that when the documents in clauses (i) to (iii) are voluminous, the Magistrate shall, instead of furnishing the accused with a copy, shall direct that he will only be allowed to inspect it either personally or through pleader in court. In both cases instituted on police report and otherwise than on police report, an accused in both the cases is an accused and he must be given right to fair trial. In case instituted on Page 9 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 police report, 161 statement to the accused is compulsory and in cases instituted otherwise than on police report, 161 statement to accused if voluminous is not compulsory is not sustainable in law. Therefore, the intention of the legislature is very clear that when the documents are voluminous, the accused can only be allowed to inspect the document. The purpose of supplying documents under Section 207 of Cr.P.C. is to give adequate notice to an accused of the material to be used against him, so that he is not prejudiced during trial. It is to ensure just and fair trial and not to delay it or create a situation of holding of trial impracticable. The right of the accused guaranteed under Article 21 of Constitution is not violated since prosecution is ready to supply the copies of all documents under Section 207. It talks about copy and it does not specify as to whether it is hard copy or soft copy. Therefore, there will not be any violation of right to fair trial under Article 21 of the Constitution. He further submitted that in the growing era of technology where the courts have started following several e-filing procedures, it is the need of the hour that when the documents are voluminous, the court will have to encourage furnishing of copies of the documents to the accused in soft copies under Section 207 of Cr.P.C.
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4. Per contra, the learned counsel for the respondents would submit that seeking permission by the prosecution for furnishing the copies in pen drive or CD form is not permitted under Section 207 of Cr.P.C. and it is unknown to law. Section 207(v) of Cr.P.C. clearly reveals that if any document is voluminous, the court can direct the accused to inspect the same instead of furnishing the said copies of document. Therefore, Section 207(v) of Cr.P.C. has not been given any exemption or permission to the court from furnishing the statements of witnesses under Sections 161 and 164 and other reports relied upon by the prosecution as alleged by them.
5. Heard, Mr.Hassan Mohammed Jinnah, State Public Prosecutor appearing for the petitioner, Mr.R.Vivekanandan, the learned counsel for the second respondent, Mr.R.Vivekanandan, the learned counsel for respondents 3, 4, 6, 12 & 13, Mr.A.Parthasarathy, the learned counsel appearing for the fifth respondent, Mr.R.Guruprasad, the learned counsel appearing for respondents 7 to 11 & 17, Mr.R.Ganesh Kumar, the learned counsel appearing for respondents 14 & 16 and Page 11 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 Mr.A.Mohammed Ismail, the learned counsel appearing for respondents 18 to 20 & 36.
6. The prosecution i.e. the petitioner herein filed petition seeking permission for furnishing scanned copies in pen drive and also permitting the accused persons to peruse the documents on filing the petition. After completion of investigation, the petitioner filed final report. During investigation, the petitioner have recorded 25,680 statements and 16,256 documents were collected in respect of Rs.189,15,24,230/- on 25,389 depositors and each copy contained more than 5,00,000 pages which costs more than Rs.2,50,000/-. In order to avoid such huge process, the petitioner filed petition seeking permission to furnish those copies in the form of CD and pen drive. There are totally 48 accused. Therefore, the total cost would be around Rs.1,25,00,000/-. After filing charge sheet, the same has been taken cognizance in CC.No.15 of 2013 on the file of the Special Judge, Special Court under TNPID Act, Coimbatore.
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7. The only point for consideration in this case is that in compliance with the procedure contemplated under Section 207 of Cr.P.C., whether the accused can be furnished copies in the form of compact disc and scanned copies or in pen drive?
8. Clause (i) to (iv) of Section 207 of Cr.P.C are mandatory provisions. It is relevant to extract provision under Section 207 of Cr.P.C. hereunder:
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 Page 13 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 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
9. Sub clause (v) of Section 207 of Cr.P.C. says that a police officer shall forward to the Magistrate along with the report, documents and statements as mentioned under Sub Section (5) of Section 173 of Cr.P.C. It is relevant to extract the provision under Section 173(5) of Cr.P.C. hereunder:
173(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith 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.
10. Sub clause (b) of Section 173(5) of Cr.P.C. includes the Page 14 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 statements recorded under Section 161 of Cr.P.C. However, the provision under Section 207(iii) says that the statements recorded under sub-section (3) of Section 161 of all the persons whom prosecution proposes to examine as its witnesses should be furnished to the accused. Further, provision under Section (v) of 207 is very clear that any other document means other documents except mentioned in sub section (i) to
(iv) of Section 207. Therefore, it does not mean that the statements recorded under Section 161(3) of Cr.P.C.
11. The learned State Public Prosecutor vehemently contended that the provision under Section 173(5) consists of two sub clauses (a) and (b) and the sub clause (b) includes statements recorded under Section 161 of Cr.P.C. It does not come under Section 207(v). If it is so, the legislature should not have mentioned only Section 173(5)(a) in Section 207 (v) of Cr.P.C. But it has mentioned Section 173(5) alone which includes both the sub clauses (a) and (b). Therefore, the statements recorded under Section 161 comes under Section 207(v) and it is covered by second proviso of Section 207(v) of Cr.P.C. Thus, if statements Page 15 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 recorded under Section 161 of Cr.P.C. are voluminous, the Magistrate, shall instead of furnishing the copies to the accused, direct the accused to inspect those documents either personally or through pleader in court.
12. It cannot be accepted for the reason stated supra. Any other documents means other than statements recorded under Section 161 Cr.P.C and it does not include statement recorded under Section 161 of Cr.P.C. That apart, the statements recorded under Section 161 of Cr.P.C. are the basis for charges. Therefore, those documents should be furnished to the accused as contemplated under Section 207 of Cr.P.C. After completion of investigation, along with the police report, investigation officer is duty bound to forward all the documents to the Magistrate or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. Similar statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses are required to be forwarded to the Magistrate along with the police report. Indeed, it is open to the police officer, if in his opinion, any part of the “statement” is Page 16 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 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 in inexpedient in public interest, to 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 stating his reasons for making such request.
13. The expression used in Section 173(5)(a) of the 1973 Code makes it amply clear that the investigating officer is obliged to forward “all” documents or relevant extracts on which the prosecution proposes to rely against the accused concerned along with the police report to the Magistrate. Therefore, furnishing of documents to the accused under Section 207 of Cr.P.C. is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. 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 gives a right to the accused to receive all documents and statements as well as to move an application for production of any record Page 17 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution to make fair disclosure.
14. The Hon'ble Supreme Court of India held in the case of Thana Singh Vs. Central Bureau of Narcotics reported in (2013) 2 SCC 590 that filing of the charge sheet and supply of other documents must also be provided in electronic form. However, this direction must not be treated as substitute for hard copies of the same which are indispensable for court proceedings. Therefore, the accused is also entitled for charge sheet and supply of other documents in electronic form and it must not be treated as substitute for hard copies.
15. It is also relevant to rely upon the judgment of the Hon'ble Supreme Court of India in the case of P.Gopalkrishnan Alias Dileep Vs. State of Kerala and Another reported in (2020) 9 SCC 161, wherein it is held that it is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the Page 18 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 consequences as expounded in the case of Nelson Motis v. Union of India reported in (1992) 4 SCC 711. On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible. The Hon'ble Supreme Court of India also relied upon the judgment in the case of Manu Sharma Vs. State(NCT of Delhi) reported in (2010) 6 SCC 1 and held as follows:
As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision 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 subsection (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 Page 19 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 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 investigation as per the requirement of Section 170(2) of the Code.
Therefore, duty of the trial court to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 Cr.P.C. is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge.
16. The learned counsel for the respondents submitted that Rule 25(2) of the Criminal Rules of Practice, 2019 and Section 173(6) of Cr.P.C. are pre-cognizance provisions which is to be followed by the investigation agency. It is relevant to extract Rule 25(2) of the Criminal Page 20 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 Rules of Practice, 2019 hereunder:
25(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 also of the other documents mentioned in clauses (ii), (iii) and (v) of 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 Whereas the provision under Section 207 Cr.P.C. is a post-cognizance provision which is to be exercised only by the Magistrate.
17. Therefore, the contention of the learned State Public Prosecutor cannot be accepted and the investigation officer is duty bound to annex all the documents along with final report as contemplated under Page 21 of 24 https://www.mhc.tn.gov.in/judis Crl.OP.No.17480 of 2021 Section 207 of Cr.P.C. Therefore, the court below rightly dismissed the petition filed by the petitioner and this Court finds no infirmity or illegality in the order passed by the court below.
18. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petition is closed.
14.09.2022
Speaking order
Index : Yes
Internet : Yes
lok
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Crl.OP.No.17480 of 2021
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Special Judge,
Special Court under TNPID Act,
Coimbatore
2.Deputy Superintendent of Police,
EOW-II, Coimbatore,
DCB Cr.No.19/2012,
Coimbatore District
3.The Public Prosecutor,
High Court of Madras
Crl.OP.No.17480 of 2021
14.09.2022
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