In re: V.N.S. Viswanathan

Gokulakrishnan, J.—These petitions are filed u/s 482 of the Code of Criminal Procedure for the purpose of setting aside the order dated 9th

August 1976 passed by the XI Metropolitan Magistrate, Saidapet in C.C. No. 5986 of 1975.

By virtue of the above said order dated 9th August 1976, the Magistrate has permitted the prosecution to make certain documents through

P.W. 2.

The facts of the case are:-The Petitioner is an accused in C.C. No. 5986 of 1975 now pending trial before the learned XI Metropolitan

Magistrate, Saidapet, Madras. The Petitioner was arrested on 21st July 1973 on a complaint filed by one T. T. Vasu, Director, M/s. L. D.

Seymour and Company (India) Private Ltd. u/s 408, 420 and 467 I.P.C. The charge sheet was filed before the IX and XVIII Metropolitan

Magistrates, Saidapet in three cases in C.C. Nos. 5986, 5987 and 5988 of 1975 on 9th May 1975. Subsequently, all the three cases got

transferred to the XI Metropolitan Magistrate, Saidapet. After the Respondent herein producing some cheques on 18th November 1975 in

pursuance of the notice issued to the Respondent by the Court, charges were framed against the Petitioner herein u/s 406, 420 and 467 I.P.C. by

the XI Metropolitan Magistrate, Saidapet on 8th January 1976. P.W. 1 T.T. Vasu was examined and his examination was over on 6th July 1976.

When the prosecution witness No. 2 was at the box, the prosecution tried to mark documents 1 to 3 through him. The Petitioner herein objected

to the said marking of those documents stating that these documents were not filed into court at the time of laying the charge sheet, that no copies

of the said document were given to the accused, that these documents were not in the hand-writing of the accused, that they were not seized or

initialed by the Investigating Officer, that copies of those documents were not in the case diary of the Investigating Officer, that P.W. 1 T.T. Vasu

has stated that all the records have been removed and destroyed by the accused, that there were no entries made in the Petty Cash Registers of

L.D. Seymour and Company regarding Ex. P.6 and that these documents were fabricated and false ones created by the prosecution to fill up the

gaps created by the defense. In spite of the objection, the Magistrate, by his order dated 9th August 1976, has permitted the prosecution to file

additional documents Nos. 1 to 3 mentioned in the memo filed by the prosecution as exhibits through P.W.2 V. Gopalan after the copies of those

documents were furnished to the Petitioner herein in advance.

The documents sought to be marked are:-(i) The confession statement of the accused dated 20th July 1973 about which P.W. 2 has referred to

in his complaint to the police, Ex. P-5 dated 20th July, 1973; (ii) The cash book relating to 21st March, 1972 of M/s. T.T. Krishnamachari and

Company, as it is a document to show that the payment purported to have been made by the accused to M/s. T.T. Krishnamachari and Company

on behalf of M/s. L. D. Seymour and Company, (India) Private Limited does not find a place in the record of transactions therein; and (iii) The

bank statement relating to Ex. P-6.

The XI Metropolitan Magistrate, after discussing the documents to be marked and observing that no serious prejudice will he caused to the

accused if the statement relating to Ex. P-6 is permitted to be marked as an exhibit in the case and also observing that in the interest of justice and

just decision of the case the memo filed by the prosecution must be allowed, permitted the prosecution to mark the additional documents as

exhibits through P.W. 2 after the copies of those documents are furnished to the accused in advance.

and Aggrieved by the above said order, the present application has been filed. The Petitioner submits that the document No. 1 filed as if the

same is the confession given by the Petitioner herein is not true, inasmuch as P.W. 1 has not given it to the Investigating Officer until the filing of the

petition to admit additional documents. It is further stated that the alleged confession of the Petitioner must be a fabricated one. The document No.

2 according to the Petitioner herein, is not at all relevant to the case and that these documents were not produced before the Investigating Officer

at the earliest point of time. As regards the bank statement relating to Ex. P-6, the Petitioner states that it was never referred to by P.W. 1, T.T.

Vasu in his evidence. It was not produced before the Investigating Officer at the earliest opportunity; nor seized by the Investigating Officer at the

time of laying the charge sheet. Further, the Petitioner through his counsel submits that admission of these documents, three years after the filing of

the charge sheet will greatly prejudice the Petitioner herein and that the prosecution should not be allowed to go on filing documents even after the

examination of certain witnesses. According to the learned Counsel appearing for the Petitioner, these documents were not seized by the

Investigating Officer nor initialed by him nor were available at the time of filing the charge sheet and as such these documents should not be marked

at this late stage. The learned Counsel for the Petitioner further states that the investigation started before the amendment of the Code of Criminal

Procedure and as such it is mandatory on the part of the prosecution to give all the records on which they are going to rely to the defense before

starting of the case. It is further stated that the prosecution cannot be permitted to plug the holes created by the defense at all times during the trial.

Mr. Sengottian contended that these three petitions, which are to set aside the order dated 9th August 1976, are in effect to revise those orders

and as such the petitions are not maintainable u/s 397(2) Code of Criminal Procedure Section 397(2) Code of Criminal Procedure states ""the

powers of revision conferred by Sub-section(l) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or

other proceeding."" Mr. Sengottian contends that no doubt the present applications are not revision petitions but to circumvent Section 397(2) three

petitions are filed as if u/s 482 Code of Criminal Procedure It has been further contended by Mr. Sengottiui that as per Section 173(8) Code of

Criminal Procedure which reads ""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)."", the prosecution is entitled to put in these three documents sought to be filed. According to Mr.

Sengottian, Section 484 Code of Criminal Procedure which reads:

(1) The Code of Criminal Procedure, 1898, is hereby repealed.

(2) Notwithstanding such repeal:

(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then,

such appeal, application, trial, Inquiry or investigation shall be disposed of, continued, held or made, so the case may be, in accordance with the

provisions of the Code of Criminal Procedure 1898 as in force immediately before such commencement, (hereinafter referred to as the Old Code),

as if this Code had not come into force.

It clearly makes a distinction between every step in the criminal prosecution such as appeal application, trial enquiry or investigation and the old

Code will apply only to that stage of the proceeding which was pending at the time of the coming into force of the New Code. Since the trial

commenced subsequent to the New Code, Mr. Sengottian states that it is the procedure under the New Code that is applicable to the present trial

Inasmuch as the documents are sought to be filed only during the course of the trial, Mr. Sengottian submits that the prosecution has every right to

file such documents u/s 173(8) Code of Criminal Procedure.

Mr. Jeyapal, the learned Counsel appearing for the Petitioner in these applications, submits that only the Old Code of Criminal Procedure

applies to the present case and that if once the investigation was done prior to the New Code, the case upto the stage of appeal must he deemed

to be only under the Old Code. The. learned Counsel further submits that even assuming that the New Code applies for trial as interpreted by Mr.

Senkottian, the investigation having been concluded prior to the -New Code, the further investigation contemplated u/s 173(8) Code of Criminal

Procedure is hit by Section 484 of. the New Code of Criminal Procedure As far as the applicability of Section 482 Code of Criminal Procedure

for the present case in view of the bar u/s 397(2) Code of Criminal Procedure Mr. Chandran Jayapal, the learned Counsel ""for the Petitioner

submits that the present case is not a revision and further he has amended the prayer in all these petitions as one to quash the proceedings by

getting an order in Crl.M.P. Nos. 2350, 2351 and 2352 of 1977 on 27th April 1977 itself.

I will presently deal with the above-said arguments and also the cases cited at the bar. In B. Surappa v. State 1976 M.L J. Cri, 543 a single

Judge of the Karnataka High Court has observed:

dealing with Section 397(2) of the Code.

There may be a case which discloses a patent error on the face of the record leading to abuse of the process of the Court. In such a case in order

to secure the ends of justice, inherent powers even in a case where revision is prohibited may be exercised.

Thus the power of the High Court u/s 482 Code of Criminal Procedure was held to be wider and is not ''.restricted by Section 397(2) Code of

Criminal Procedure But the using of such power must be only in cases which disclose a patent error on the face of the record leading to abuse of

the process of the Court. The Karnataka Judge, after examining the facts of the case involved dm the decision, refused to interfere with the order

of the Court below u/s 482 of the Code holding that there is absolutely no patent error or abuse of the process of the Court in that case. Hence I

am of the view that there is absolutely no difficulty in entertaining a petition u/s 482 Code of Criminal Procedure even in respect of an order passed

in an interlocutory application in appeal, enquiry, trial or other proceedings. But the relief sought for can be granted only when there is an error

apparent on the face of the record leading to abuse of the process of the Court.

Code of Criminal Procedure 482 preserves the inherent powers of the High Court to prevent abuse of the process; of any Court and also to

secure the ends of justice. Such a power has to be used with great caution and only to prevent abuse of the process of any Court, and to secure

the ends of justice.

Further, Section 484(2) Code of Criminal Procedure deals with the applicability of the old Code and the New Code in respect of pending:

proceedings. I am of the view that the Old Code will apply only to such of the stages mentioned in Section 484(2) Code of Criminal Procedure

which was pending at the time of the coming into force of the New Code. As such, the trial commenced subsequent to the coming into force of the

New Code, even though the investigation was done as per the Old Code, the New Code will only apply to such trials. Section 173(8) of the New

Code states ""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, that 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)"". According to the New Code, it is clear that further investigation can be made even after a report under Sub-section (2) has been

forwarded to the Magistrate. As far as the present case is concerned, the filing of these three documents now objected to cannot be considered as

a result of further investigation, u/s 173(8) Code of Criminal Procedure Hence I am of the view that Section 173(8) Code of Criminal Procedure

has not come into play in the present case.

Then we have to consider as to whether these three documents which are sought to be filed by the prosecution as late as this can be permitted.

Even under the Old Code, I do not find any prohibition in the Procedure Code for filing certain documents. No doubt, the accused must be

furnished with all these documents even before the charge is framed. The failure to do so will not affect the filing of such of those documents

provided the accused is not put in disadvantage owing to such filing. In Public Prosecutor v. Pachiappa AIR 1958 Mad 295, Somasundaram, J.,

dealing with the scope of Section 173 of the Old Code of Criminal Procedure and discussing the legality of tendering additional documents,

allowed the revision case by directing the Court below to receive additional documents tendered by the prosecution. In that judgment

Somasundaram, J., has observed:

But the learned Magistrate has gone one step further and held that the prosecution cannot even file these documents, as they were not tendered in

the first instance. In this the learned Magistrate has erred. It is true that it is the duty of the prosecution to furnish in the first instance itself under the

provisions of Section 173 all the documents on which they rely. But, in the course of the trial, if the prosecution think it necessary to file additional

documents or statements of witnesses on whom they propose to rely, the section does not prevent them from filing them. They arc entitled to file

such documents, the only obligation being that they must be given in advance to the accused, so that he may be enabled to make use of the

documents to his best advantage.

Mr. Justice Natarajan in (R. Partha-sarathy, now Deputy Accountant General, Maharashtra State, Bombay v. State represented by the

Special Police Establishment, Madras land others Crl. M.P. 471 of 1976, order dated 18th October 1976) dealt with the legality of filing certain

documents at the time of the trial by the prosecution. In that case, it was argued that Sub-section (5) of Section 173 read with Section 207 Code

of Criminal Procedure has mandatory force and there, fore, any non-compliance with the requirement of the Sub-section will vitiate the

proceedings. Justice Natarajan observed that the purport of the directions contained in Section 173 read with Section 207 Code of Criminal

Procedure has to be looked into and then the measure of its compliance evaluated. The learned Judge further stated that the statements of

unimportant witnesses or documents, which do not form the foundation of the prosecution case, but which are filed only to make the record of

evidence complete or to bring out the nuances of the prosecution story can be filed and copies thereof furnished at a later stage of the case. The

learned Judge also referred to Public Prosecutor v. Parasuraman Prabhu 1957 M.W.N Cri 158, wherein Somasundaram, J., who spoke for the

Bench, has stated that belated furnishing of copies of Statements of witnesses would not go to the root of the matter and the interests of the

accused could be adequately safeguarded if in such cases the Magistrate gives an opportunity to the accused to cross-examine the witnesses who

had already been examined. After citing the above decision, Justice Natarajan, on the facts of the case he dealt with, observed:

Thus, what has to be observed, when a question of supply of statements of witnesses or copies of documents in accordance''s with Sections

173(5) and 207 arises, is whether the accused had been handicapped in any manner in formulating and projecting his defense and whether the

delayed supply of documents etc., had resulted in prejudice to the accused. Judged by that standard, it is seen that in the case on had, the further

documents were filed in Court and copies thereof given, to the accused even when P. Ws.l and 2 were in the witness-box. The cross-examination

'' of P.W.I has admittedly not yet begun. As such, the accused can always, cross-examine him with reference the the copies of the documents

supplied to him before the framing of charges as well those supplied when P.W.l was in the witness-box. SO far as P.W.2 is concerned, even

though his cross-examination is over, it is always open to the Petitioner to move the trial Magistrate to recall P.W 2 and make him available for

fresh cross-examination, if he is able to satisfy the Magistrate that P,W.2''s recall is necessary. I am, therefore, unable to agree with the Petitioner''s

counsel that the filing of documents as well as furnishing of copies thereof ;by the prosecution after charges had been framed in the case has vitiated

the proceedings and therefore, the charges framed are liable to be quashed.

The above said observations extracted will squarely apply to the facts of the present-case on hand also.

Mr. Chandran Jeyapal, the learned Counsel wanted to rely upon the decision rendered in T. Bashyam v. State by the Drugs Inspector 1975

L.W.(Cri.) 53. Mr. Justice Ratnavel Pandian dealing with a case in which the Court below permitted the recall of D.W.I by the prosecution in

order to further cross-examine him when the case was posted for judgment, observed:

In the instant case, the documents now sought to be filed have been, as already pointed out, in the"" possession of the prosecution. As mentioned

supra, the observations of the lower Court culled out above and underlined, give an impression that the Magistrate was satisfied that certain

amount of evidence regarding the price of Flagyl had been let in by the prosecution. But, the learned Magistrate, in allowing the petition and thus

enabling the prosecution to further cross-examine the defense witness, D.W. 1 already examined, for the purpose of taking corroborative evidence

in my view, cannot be said to have acted for a just decision of the case especially after the case had been posted for judgment, There was ample

opportunity for the prosecution to file this document even at the earliest opportunity. If this kind of petitions are allowed at each and every stage,

viz., either to take corroborative evidence or to let in rebutting evidence, there may not be an end to these matters and the proceedings would be

protracted which ultimately may prejudice the accused in a Criminal trial. Such kind of permission to either party under the guise of Section 540

will amount to enabling them to fill up the lacuna.

Thus observing, the learned Judge allowed the revision petition and quashed the order of the lower Court. I do not think the facts and the

circumstances in the present case are akin to the case dealt with by Mr. Justice Ratnavel Pandian. The trial is not over in this case. Some more

witnesses have to be examined.. The Court felt that the filing of additional documents is necessary to complete the record. Hence I am of the view

that the decision rendered by Justice Ratnavel Pandian is not applicable to the facts of this case.

No doubt, in this case, the prosecution has taken much time to get through the case. The complaint against the accused was as early as 19th

July 1973 and the charge sheet was laid only on 9th May 1975. The documents were not furnished uptil 18th November, 1975. Only on 8th

January, 1976 charges were framed and the evidence of P.W. 1 was closed on 7th June, 1976. P.W.2 was examined on 6th July, 1976. Only on

that day, the petition to receive additional documents was filed. Thus it is seen, from the dates cited above, that there is inordinate delay on the part

of the prosecution to furnish the documents and also to proceed with the case against the Petitioner herein. Nevertheless, I am able to see that the

charges framed are not based upon the documents which are sought to be filed as at present. The substratum of the case is not being built up by

the present documents except the prosecution wanting to complete the record which will add strength in the prosecution case as such. The first

document which is in the nature of a confessional statement of the accused, was referred to by P.W.2 in Ex. P-5 itself. The second document,

which is the cash book relating to 21st March 1972 of Messrs. T.T. Krishnamachari and Co., to show that the payment purported to have been

made by the accused to Messrs. T.T. Krishnamachari and Co., on behalf of Messrs. L. D. Seymour and Co., (India) Private Ltd., does not find a

place in the record of transaction therein, can be construed only as an additional document to complete the record. The third document is the bank

statement relating to Ex. P-6 which has already been filed. Mr. Chandran Jeyapal, no doubt, pointed out the evidence of P.W. 1 to show that all

the records have been removed and destroyed by the accused. On this basis, Mr. Chandran Jayapal stated that the documents sought to be filed

are fabricated documents, created by the prosecution to fill up the gaps. It is always open to the accused to recall P.W. 1 after satisfying the

Magistrate concerned and put to him the documents sought to be filed. All the defense he wants to take can as well be agitated in cross-examining

P.W.I or P.W.2 which right is available even to-day to the accused concerned.

Thus from the foregoing discussion, it is clear that even though there is delay on the part of the prosecution in producing these documents, I am

of the view that there is absolutely no prejudice caused as such to the accused concerned. The filing of these documents cannot be construed as

filling up the gaps created by the defense, nor can it be construed as building up the substratum of the prosecution case as such. The reasoning

given by the court below in allowing the prosecution to file these three documents is correct and I am in complete agreement with the same. In

these circumstances, Crl.M.P. Nos. 5239, 7827 and 7829 of 1976 are dismissed.