Central Bureau of Investigation (CBI) vs R.S. Pai and Another

Shah, J.—Short Question is-whether prosecution can produce additionaldocuments which are gathered during investigation, after submittingcharge-sheet u/s 173 of the Code of Criminal Procedure 1973

The Special Court (Trial of Offences Relating to Transactionsin Securities) at Bombay by judgment and order dated 26th July, 2000,rejected Miscellaneous Application No. 338 of 2000 in Special CaseNo. 3 of 1997 filed by the Central Bureau of Investigation (CBI) forproduction of additional documents in a case where application fordischarging the respondents was filed. Aggrieved by the saidjudgment, the CBI has preferred this appeal.

The prosecution story in brief is that-during the period2.4.1992 to 20.5.1992, the FIM Division, Bombay of Syndicate Bankreceived funds aggregating to Rs. 132.23 crores for PortfolioManagement from Oil Industries Development Board, New Delhi. Itwas alleged that R. Sundaresan, the then Divisional Manager of theBank and other bank officials conspired during the above said periodat Bombay along with Directors and office bearers of M/s. FairGrowth Investments Ltd. and M/s. Fair Growth Financial Services Ltd.and by dishonestly and fraudulently abusing their position as a publicservant caused wrongful gain to private parties and corresponding lossto the Syndicate Bank. It is also alleged that an amount of Rs. 90.58crores was invested for the purpose of shares/debentures from M/s.Fair Growth Financial Services Ltd. and others without specificauthorization from the Head Office of the Bank and without adheringto the guidelines of Reserve Bank of India (RBI) and the SEBI. On2.6.1993, on the written complaint of the Chief Vigilance Officer ofthe Bank, case No. RC 1(BSC)/93-Mum. was registered u/s 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 against R. SundaresanDivisional Manager of Syndicate Bank and K.R.N. Shenoy, ManagingDirector of M/s. Fair Growth Investments Lts. After investigation,charge-sheet was filed by the CBI in the Special Court in Special CaseNo. 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 2000before the Special Court. Pending hearing those applications,appellant sought production of additional documents, which weregathered during investigation but were not produced before the Court.The application was rejected. Hence, this appeal.

Mr. P.P. Malhotra, learned senior counsel for the appellantsubmitted that the order passed by the Special Judge is on the face ofit illegal and contrary to the provisions of Section 173(5) of the Codeof Criminal Procedure. It is his contention that normally theInvestigating Officer is required to produce all the relevant documentsat the time of submitting report, but the Investigating Officercommitted mistake is not producing certain documents as in hisopinion those documents were not relevant. Thereafter, it was foundthat those documents were relevant so as to connect the accused withthe crime. It is submitted that arguments for framing of the chargewere not finally heard and, therefore, there was no justifiable reasonto reject the application for production of additional documents.

As against this, Mr. P.V. Adhyaru, learned senior counsel forrespondent No. 2 submitted that u/s 173(5) Cr.P.C., theInvestigating Officer has to produce all the documents at the time ofsubmitting the report. Therefore, the order passed by the SpecialCourt cannot be said, in any way, to be illegal or erroneous.

For appreciating the rival contentions, we would first refer tothe relevant part of Section 173 of the Cr.P.C., which read as under:-

"173 Report of police officer on completion ofinvestigation. -(1) Every investigation under thisChapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer incharge of the police station shall forward to a Magistrateempowered to take cognizance of the offence on a policereport, a report in the form prescribed by the StateGovernment, stating-

(a) the names of the parties:

(b) the nature of the information:

(c) the names of the persons who appear to beacquainted with the circumstances of thecase;

(d) whether any offence appears to have beencommitted and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bondand, if so, whether with or without sureties:

(g) whether he has been forwarded in custodyunder Section 170.

(ii) The officer shall also communicate, in suchmanner as may be prescribed by the State government,the action taken by him to the person, if any, by whomthe information relating to the commission of the offencewas first given.

(3) .....

(4) .....

(5) When such report is in respect of a case towhich Section 170 applies the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof onwhich the prosecution proposes to rely otherthan those already sent to the Magistrateduring investigation:

(b) the statements recorded u/s 161of all the persons whom the prosecutionproposes to examine as its witnesses.

(6) .....

(7) .....

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offenceafter a report under Sub-section (2) has been forwarded tothe Magistrate and, where upon such investigation, theofficer in charge of the police station obtains furtherevidence, oral or documentary, he shall forward to theMagistrate a further report or reports regarding suchevidence in the form prescribed; and the provisions ofSub-sections 920 to (6) shall, as far as may be, apply inrelation to such report or reports as they apply in relationto a report forwarded under Sub-section 92)."

From the aforesaid sub-sections, it is apparent that normally,the investigating Officer is required to produce all the relevantdocuments at the time of submitting the charge-sheet. At the sametime, as there is no specific prohibition, it cannot be held that theadditional documents cannot be produced subsequently. If somemistake is committed in not producing the relevant documents at thetime of submitting the report or charge-sheet, it is always open to theInvestigating Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecutionand the context in which Police Officer is required to forward to theMagistrate all the documents or the relevant extracts thereof on whichprosecution proposes to rely, the word 'shall' used in Sub-section (5)cannot be interpreted as mandatory, but as directory. Normally, thedocuments gathered during the investigation upon which theprosecution wants to rely are required to be forwarded to theMagistrate, but if there is some omission, it would not mean that theremaining documents cannot be produced subsequently. Analogousprovision u/s 173(4) of the Code of Criminal Procedure,1898 was considered by this Court in Narayan Rao Vs. The State of Andhra Pradesh, and it was held that theword 'shall' occurring in Sub-section 4 of Section 173 and Sub-section3 of Section 207A is not mandatory but only directory. Further, thescheme of Sub-section (8) of Section 173 also makes it abundantlyclear that even after the charge-sheet is submitted, furtherinvestigation, if called for, is not precluded. If further investigation isnot precluded then there is no question of not permitting theprosecution to produce additional documents which were gatheredprior to or subsequent to investigation. In such cases, there can not beany prejudice to the accused. Hence, the impugned order passed bythe Special Court cannot be sustained.

In the result, the appeal is allowed and the impugned judgmentand order passed by the Special Court is set aside. The applicationfiled by the appellant for production of additional documents isallowed. The Special Court to proceed with the matter in accordancewith law.