IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(Cr.) No. 62 of 2016 Arun Kumar Singh,S/o Sri Satyanarayan Singh, R/o village- Cheya, PO.Riwla,PS Arti,Gaya(Bihar) Petitioner versus State of Jharkhand through C.B.I. Respondent. ----- CORAM : THE HON'BLE MR. JUSTICE RAVI NATH VERMA ----- For the Appellants : M/s Rajeev Ranjan,Sr.Advocate,Krishna Murari For the C.B.I : Mr. K.P. Deo ----- Reserved on 22.04.2016 Delivered on:
22. 08/2016 R.N.Verma,J.
Invoking the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India, the petitioner has questioned the legality of the order dated 19.03.2016 passed by Additional Judicial Commissioner-XVII-cum- Special Judge, C.B.I., Ranchi in RC20A)/2009-R, whereby and where under the application field by the petitioner on different dates with prayer to direct the C.B.I to supply all the deficit documents ie. D-2 to D-17 and the statements of P. Ws. 1, 2 and 12, which are not readable, has been rejected.
2. Bereft of unnecessary details, the relevant fact which is necessary for proper adjudication of the dispute between the parties, in short, is that at the instance of Central Bureau of Investigation ( in short “C.B.I.”), an F.I.R. was lodged under sections 120B,420,467,468 and 417 of the Indian Penal Code and also under section 13(2) read with 13(1))D) of the Prevention of Corruption Act with allegation that one Basudeo Tiwary and three Executive Engineers, Road Construction Department, Chaibasa during the period 2006-07 entered into criminal conspiracy with M/s Nav Nirman Builders, Jamshedpur and unknown persons and pursuance thereof, the said firm submitted false/bogus invoices showing procurement of Bitumen for execution of the contractual work awarded in its favour, which caused wrongful gain to the contractor and wrongful loss to the Government of Jharkhand to the tune of Rs.89,68,966/-.
3. After investigation, the C.B.I submitted the charge-sheet under section 120B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act only and other sections in which F.I.R was lodged were dropped. In the charge-sheet this petitioner, who was Assistant Engineer in -2- the Road Construction Division, Seraikela, Kharawan was also shown as an accused. With the charge-sheet, a list of witnesses and a long list of documents were enclosed as memo of evidence, which were collected and forwarded to the Special Judge within the meaning of Section 173(5) of the Code of Criminal Procedure ( in short “the Code”) without there being any exception as contemplated under section 173(6) for which no application was filed by the Investigation Officer before the Court.
4. It appears from the report that on different dates like 08.08.2013, 05.05.2014, 04.08.2014, 14.07.2015, 07.09.2015, 14.09.2015, 16.10.2015 and 05.01.2016 petitions and objections were filed on behalf of the petitioner with prayer to supply those documents, which were the part of the police papers as provided under section 173 of the Code and the C.B.I by filing rejoinder to the above petitions prayed to the court to direct the accused- petitioner to return all those documents for identifying the missing/illegible papers of documents. Accordingly, direction was given and the petitioner returned all those documents but when those documents were supplied to the petitioner, again objection was filed. Where after, the C.B.I also filed rejoinder and took the plea that those deficit documents demanded by the accused- petitioner are of no help to the petitioner as C.B.I will not rely on those documents. The C.B.I also took the plea that certain documents are faintly printed/carbon copy/hand written, so it is difficult to supply photocopies of those documents and by non- supplying,no prejudice will be caused to the petitioner-accused. It was also stated by the C.B.I in its rejoinder that the documents which have not been given to the accused, are the documents upon which C.B.I will not rely, so C.B.I is not bound to supply copies of those documents. It further appears that on 07.09.2015, petitioner submitted a tabular chart (document wise) and prayed to supply those incomplete selective part of the documents. But the C.B.I in its rejoinder stated that accused-petitioner is intentionally delaying the trial of cases since last two years and so the demand of documents not relied on, cannot be supplied to the petitioner.
5. The court below by the impugned order dated 19.03.2016 rejected the prayer of the accused-petitioner for supply of deficit documents, holding that most of the documents claiming by the petitioner has already been supplied to him, but some of the -3- photocopies given to the petitioner are fainted, which appears on perusal of the originals of these documents and since original are really very fainted, so the photocopies are also fainted. The court below further observed that the filing of such petitions are likely to be delaying tactics of defence and it can not be promoted. The defence counsel does inspect such documents in presence of C.B.I. counsel. Hence, this writ petition.
6. Mr. Rajeev Ranjan, learned senior counsel appearing for the petitioner assailing the order impugned as bad in law and in violation of ratio decided in the case “V.K.Sasikala.Vs.State Represented by Superintendent of Police”, as reported in (2012)9 SCC-771, seriously contended that since the documents which have not been given to the petitioner, were part of the police papers submitted by the prosecution before the special court, the denial to supply of those deficit documents on the ground that C.B.I is not going to rely on those documents, is not sustainable in the eye of law and it would amount to denial of a valuable right of fair trial. It was further contended that no any petition under section 173(6) of the Code was filed or endorsement was made at the instance of the C.B.I at the time of filing of the charge-sheet to show that C.B.I will not rely on some of the documents and that conduct of the prosecution in not supplying those documents only indicates that the same do not support the prosecution case but those documents may assist in the defence of the accused.
7. Contrary to the aforesaid submissions, Mr. K.P. Deo, learned counsel appearing for the C.B.I in support of the order impugned contended that when the documents, which have been sought are not being relied on by the prosecution, in no any manner,it creates any right to the petitioner to get the copies of such documents, but even after providing several opportunities to the petitioner for inspection of those documents, they did not inspect the documents. It was further contended that documents relevant for framing of charge has already been furnished to the petitioner under section 207 of the Code at the proper stage of the proceeding and so far the document, which have not been given to the petitioner , the C.B.I is not going to rely and that there was no any occasion for the C.B.I to file any application under section 173(6) of the Code before the Special Judge, C.B.I at the time of filing of the charge-sheet, including the police paper and the contention of the accused-petitioner, that the documents are -4- required to enable to him to procure his defence is wholly untenable.
8. Before I enter into the veils of submissions of the learned counsels, it is pertinent to refer Section 173 of the Code for proper adjudication of the issue involved in this writ application. Section 173 of the Code reads as under :
173. Report of police officer on completion of investigation-(1) Every investigation under this Chapter shall be completed without unnecessary delay. (2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit. (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. (6) If the police officer is of 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 interests 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 stating his reasons for making such request. -5- (7) 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) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2). On bare perusal of the aforesaid provision, it would be clear that a mandatory duty has been cast upon the investigating agency to maintain a case diary of every investigation on day to day basis, as provided under sub-section (2) of the above section . Immediately after completion of investigation, police report has to be forwarded to the concerned court empowered to take cognizance of the offence. Similarly, sub-section (5) of the above Section deals with a situation that all the documents or relevant extracts thereof on which prosecution proposes to rely other than already sent to the Magistrate during investigation and the statements recorded under section 161 of the Code of all the persons whom the prosecution proposes to examine as its witnesses shall also be forwarded to the concerned court. But if the Investigating Officer comes to a conclusion that any part of such document or statement is not relevant to the subject matter of the proceeding or its disclosure to the accused is not essential, he shall indicate that part of the statement and append a note requesting the concerned court to exclude that part from the copies to be granted to the accused disclosing his reasons for making such request. In compliance of sub-section (5) of section 173 of the Code, the Investigating Officer may furnish to the accused the copies of all or any of the documents referred to in sub-section (5) of section 173 of the Code. After submission of the police paper including charge-sheet and all relevant documents, if the court feels to take cognizance of the offence shall issue summons for appearance of the accused and on appearance of the accused, the court concerned is required to furnish to the accused, the copies of police report, F.I.R, statements of witnesses, examined during investigation under section 161 of the Code and any other documents or relevant extracts forwarded to -6- the court with police report under section 207 of the Code. For better appreciation, reference of section 207 of the Code is also necessary, which reads as follows :
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 there from 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: 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. On perusal of the aforesaid provision, it is clear that the first proviso empowers the court not to supply those documents for which a request for exclusion has been made by the Investigating Officer under sub-section (6) of section 173 of the Code. The second proviso empowers the court to direct the accused to make inspection of those documents which are voluminous in nature instead of furnishing the accused with a copy thereof. So it is confined to a situation when the documents are voluminous.
9. Admittedly, after appearance of the accused-petitioner in the court concerned , the court had provided large number of documents submitted by Investigating Officer under section 173 of the Code, but thereafter the accused-petitioner filed different petitions before the Special Judge with prayer to direct the C.B.I to supply copies of the deficit documents (specially the documents -7- D-1 to D-19) along with enclosures thereto as also the statements of some of the witnesses which are not readable.
10. Apparently, large number of documents were seized by the police and since all the documents were enclosed with the police paper it is not only a requirement, rather a mandate has been given to the Court under section 207 of the Code to supply all the documents whether relied on or not relied on by the C.B.I., to the accused-petitioner, if there was no such endorsement as envisaged in sub-section (6) of Section 173 of the Code.
11. In the case “Manu Sharma Vs.State ( NCT of Delhi): (2010)6 SCC-1 similar issue was considered by the Supreme Court and in following paragraphs the ratio was decided as follows :- 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 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. 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 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 -8- 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.
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.”
12. In another judgment “V.K.Sasikala” (Supra) the Hon'ble Supreme Court considering the above said case of “Manu Sharma” (Supra) held in paragraph no.18 as follows :
15. In a recent pronouncement in Manu Sharma V. State (NCT of Delhi) 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 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 -9- 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. The said scheme was duly considered by this Court in different paragraphs of the report. In an unreported judgment of Delhi High Court passed in CRL.MC.79/2014 on 04.12.2014: Ashutosh Verma Vs. C.B.I, the Hon'ble Court after considering several judgments of the Delhi High Court as well as of the Supreme Court, held in paragraph no.27 and 28 as follows :
“27. In case the prosecution is permitted to withhold what might be vital evidence for an accused to establish his case, the unscrupulous investigating agency would be with utmost ease able to keep the court in the dark. Since the charges framed by CBI are of criminal nature, the petitioner under such circumstances has the full right to lay down his defences for the purposes of which all necessary disclosures have to be duly made in accordance with the procedures laid down under Cr. P.C. Accused can ask for the documents that withhold his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Defence has to be build up from day one and not on ad-hoc basis denying the same would seriously prejudice the rights of the accused as enshrined in he Constitution of India.”
28. In view of the dictum in the aforementioned judgments, this court is of the opinion that petitioner cannot be denied an access to the documents in respect of which prayers have been made in the petition merely because CBI does not consider its relevant. If there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of the prosecution and the investigating office ignores these documents and forward only those documents which favour the prosecution, in such a scenario, it would be the duty of investigating officer to make such documents available to the accused.” On perusal of the above judgments, it would appear that in the case of “V.K.Sasikala” (Supra) at the time of recording of statement of the accused-petitioner under section 313 of the Code, a prayer was made on behalf of the accused-petitioner to supply certain documents and the Supreme Court permitted the prosecution to supply those documents, though it was at the fag end of the trial. The Hon'ble Supreme Court in the above judgments has decided the ratio holding that it is the mandate to the court under the provision of section 207 of the Code to supply -10- or furnish copies of the police report and all other documents which are part of police report to the accused without delay and free of cost and other documents or extract thereof which were already submitted to the court during course of investigation and under sub-section (5) of section 173 of the Code. The right of the accused is though limited but is codified . The non-disclosure of certain documents would affect the administration of criminal justice and defence of the accused.
13. In the instant case, prayer to supply the deficit documents has been made by the petitioner before the Special Court at a very early stage of proceeding and even charges have not been framed. Non-supply of deficit documents, as prayed by the defence would certainly curtail the right of the petitioner for fair trial, as enshrined under Article 19 and 21 of the Constitution of India. It is not a case that C.B.I has not filed those required documents with police paper rather the petitioner is demanding certain documents which are part of police paper. The petitioner can not be denied his access to the documents merely because C.B.I has decided not to rely on those document or the C.B.I does not consider those documents relevant. It is immaterial whether those documents shall be relied upon by C.B.I or not, in the interest of fair justice and trial, such documents should also be disclosed to the accused giving him a chance of fair defence. It is the duty of the court to ensure that the accused should not be deprived of just, fair and transparent trial.
14. In view of the discussions made above, the order impugned passed by the Additional Judicial Commissioner-XVII-cum-Special Judge, C.B.I. Ranchi is, hereby, quashed. Consequently, this writ application is allowed with a direction to the court concerned to supply all the deficit documents to the petitioner-accused, which have been prayed by him in different applications, as mentioned in the order impugned to establish his defence. ( R.N. Verma ,J.) Raman/