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CASE NO.:

Appeal (crl.) 1045 of 2000

PETITIONER:

CENTRAL BUREAU OF INVESTIGATION

Vs.

RESPONDENT:

R.S. PAI AND ANOTHER

DATE OF JUDGMENT: 03/04/2002

BENCH:

M.B. Shah, Brijesh Kumar & D.M. Dharmadhikari

JUDGMENT:

Shah, J.

Short question iswhether prosecution can produce additional

documents which are gathered during investigation, after submitting

charge-sheet under Section 173 of the Code of Criminal Procedure,

1973?

The Special Court (Trial of Offences Relating to Transactions

in Securities) at Bombay by judgment and order dated 26th July, 2000,

rejected Miscellaneous Application No.338 of 2000 in Special Case

No.3 of 1997 filed by the Central Bureau of Investigation (CBI) for

production of additional documents in a case where application for

discharging the respondents was filed. Aggrieved by the said

judgment, the CBI has preferred this appeal.

The prosecution story in brief is thatduring the period

2.4.1992 to 20.5.1992, the FIM Division, Mumbai of Syndicate Bank

received funds aggregating to Rs.132.23 crores for Portfolio

Management from Oil Industries Development Board, New Delhi. It

was alleged that R. Sundaresan, the then Divisional Manager of the

Bank and other bank officials conspired during the above said period

at Mumbai along with Directors and office bearers of M/s Fair

Growth Investments Ltd. and M/s Fair Growth Financial Services Ltd

and by dishonestly and fraudulently abusing their position as a public

servant caused wrongful gain to private parties and corresponding loss

to the Syndicate Bank. It is also alleged that an amount of Rs.90.58

crores was invested for the purpose of shares/debentures from M/s

Fair Growth Financial Services Ltd. and others without specific

authorization from the Head Office of the Bank and without adhering

to the guidelines of Reserve Bank of India (RBI) and the SEBI. On

2.6.1993, on the written complaint of the Chief Vigilance Officer of

the Bank, case No. RC 1(BSC)/93-Mum. was registered under Section

120-B read with Section 420 IPC and Section 13(2) read with Section

13(1)(d) of Prevention of Corruption Act, 1988 against R. Sundaresan

Divisional Manager of Syndicate Bank and K.R.N. Shenoy, Managing

Director of M/s Fair Growth Investments Ltd. After investigation,

charge-sheet was filed by the CBI in the Special Court in Special Case

No.3/97 at Bombay against respondent nos.1 and 2. On 27.1.2000,

respondent nos.1 and 2 filed discharge application bearing Misc.

Application No.51 of 2000 and Misc. Application No.168 of 2000

before the Special Court. Pending hearing those applications,

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appellant sought production of additional documents, which were

gathered during investigation but were not produced before the Court.

That application was rejected. Hence, this appeal.

Mr. P.P. Malhotra, learned senior counsel for the appellant

submitted that the order passed by the Special Judge is on the face of

it illegal and contrary to the provisions of Section 173 (5) of the Code

of Criminal Procedure. It is his contention that normally the

Investigating Officer is required to produce all the relevant documents

at the time of submitting report, but the Investigating Officer

committed mistake in not producing certain documents as in his

opinion those documents were not relevant. Thereafter, it was found

that those documents were relevant so as to connect the accused with

the crime. It is submitted that arguments for framing of the charge

were not finally heard and, therefore, there was no justifiable reason

to reject the application for production of additional documents.

As against this, Mr. P. V. Adhyaru, learned senior counsel for

respondent no.2 submitted that under Section 173 (5) Cr.P.C., the

Investigating Officer has to produce all the documents at the time of

submitting the report. Therefore, the order passed by the Special

Court cannot be said, in any way, to be illegal or erroneous.

For appreciating the rival contentions, we would first refer to

the relevant part of Section 173 of the Cr.P.C., which read 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, whether 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) ..

(4) ..

(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

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during investigation;

(b) the statements recorded under Section 161

of all the persons whom the prosecution

proposes to examine as its witnesses.

(6) ..

(7) ..

(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)."

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 charge-sheet, it is always open to the

Investigating Officer to produce the same with the permission of the

Court. In our view, considering the preliminary stage of prosecution

and the context in which Police Officer is required to forward to the

Magistrate all the documents or the relevant extracts thereof on which

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,

1898 was considered by this Court in Narayan Rao v. The State of

Andhra Pradesh [(1958) SCR 283 at 293] and it was held that the

word 'shall' occurring in sub-section 4 of Section 173 and sub-section

3 of Section 207A 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 investigation. In such cases, there can not be

any prejudice to the accused. Hence, the impugned order passed by

the Special Court cannot be sustained.

In the result, the appeal is allowed and the impugned judgment

and order passed by the Special Court is set aside. The application

filed by the appellant for production of additional documents is

allowed. The Special Court to proceed with the matter in accordance

with law.

...J.

(M.B. SHAH)

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J.

(BRIJESH KUMAR)

J.

(D.M. DHARMADHIKARI)

April 3, 2002

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