Jogendra Singh vs C.B.I.

M.N. Bhandari, J.—By this petition, a challenge is made to the order dated 10.12.2013. The application submitted by the prosecution was accepted. A revision petition against the said order by the petitioner was dismissed.

Learned counsel for petitioner submits that after registration of case, investigation was made by the CBI followed by charge sheet. After framing of charges, prosecution led evidence and by the time of submission of application, 22 witnesses had been examined. An application thereupon was submitted by the prosecution to allow them to produce certain documents without specifying and giving details of those documents and reasons for non-production at the appropriate stage. The application aforesaid was allowed affecting right of the petitioner. He has already disclosed his defence while cross-examining 22 witnesses, hence, it will affect his right of defence. The permission to take documents on record at a later stage can be permitted but not a stage when 22 witnesses have already been examined. In the light of the aforesaid, application submitted by the CBI was allowed casually.

A revision petition thereupon was also dismissed. Therein, the order passed by trial court was found to be interlocutory in nature, yet holding revision petition to be not maintainable, it was decided on merit. The document and the material were produced, though it was not kept in proper seal. It can have repercussions adverse to the petitioner, thus impugned order be set aside with acceptance of the petition. A reference of judgment of this court in the case of Kanhaiya Lal v. State, reported in RCC Sept. 1987 is given. Therein, recalling of the witnesses was not accepted after hearing the case and keeping it for pronouncement of the judgment. In Para 2 of the said judgment, it was held that evidence should not be allowed to fill up the lacuna. Another judgment referred by learned counsel for petitioner is in the case of Mohanlal Shamji Soni Vs. Union of India and another, . Therein, application under Section 311 Cr.P.C. was accepted. The Apex Court held that an application can be accepted at any stage but it should not be with a view to permit new evidence or to fill up the lacuna left by the prosecution. In the light of judgments (supra), order be quashed.

Per contra, learned counsel for non-petitioner submits that application discloses the reasons as to why evidence could not be produced earlier. During the course of investigation, articles were sealed in the presence of two witnesses. A list was prepared but out of it, only item No. 2 of the list was submitted along with charge sheet leaving other articles. It was due to bona fide mistake. The witnesses to prove that material has yet to be examined by the prosecution, thus even if 22 witnesses have been examined, it is not going to affect defence of the petitioner. The witnesses concerned to the material would be examined now. The petitioner would be having opportunity to cross-examine them thoroughly. He further submits that application is not for acceptance of new evidence, rather it is part of investigation and was sealed in the presence of two persons. The doubt has been raised about condition of the evidence, though material has already been produced before the court below and is lying intact.

I have considered the rival submissions made by the parties and perused the record.

It is not in dispute that after framing of charges, 22 witnesses have been examined. At that stage, the non-petitioner filed an application under Sections 242, 242(3) and 173(8) Cr.P.C. The application aforesaid was allowed considering that due to bona fide mistake, material collected during the course of investigation could not be produced. It was after dealing with the objection of the petitioner regarding evidence of 22 witnesses prior to production of material. The court found that 2 relevant witnesses are yet to be examined. The petitioner would be having opportunity to cross-examine those witnesses in reference to material. It is not that evidence was not collected during the course of investigation and now sought to be placed. The court below has considered the issue aforesaid and finding justification in making application for acceptance of the evidence, application was allowed. The revisional court considered and decided the case on its merit though in the last para, the order passed by the trial court was found to be interlocutory in nature but then dismissal of the revision petition is on merit. Therein, all the aspects raised by the counsel for petitioner were considered and decided. Thus two courts below have decided the issue adverse to the petitioner.

The question comes as to whether evidence can be produced by the prosecution at any stage. The issue aforesaid has been considered by the Apex Court in the case of Central Bureau of Investigation (CBI) Vs. R.S. Pai and Another, . Therein, omission to forward all documents along with charge sheet and thereupon application for production of documents was allowed as there exist no bar to accept such application. It is, however, true that application was filed prior to framing of charges. The Hon''ble Apex Court found that sub-section (5) of Section 173 Cr.P.C. is not mandatory but directory in nature. The word "shall" used in sub-section (5) was given interpretation by the court. In view of the above, it becomes clear that the document can be produced by the prosecution even at the stage later than filing of the charge sheet. The question now remains as to whether it can be produced after recording statement of 22 witnesses. The perusal of the application and the order impugned herein shows that during the course of investigation, certain articles were seized by the CBI in the presence of two witnesses, who had verified seizure of those articles. Those two witnesses are yet to be examined and the articles were collected during the course of investigation but could not be placed along with the charge sheet due to bona fide mistake. It is not that all of sudden new material has been brought by the CBI. The omission is accepted as a ground to justify production of document in the case of R.S. Pai (supra). If the articles so produced by the CBI would not have been in reference to two witnesses to be produced now, the application could have been dismissed. It is in view of the fact that the petitioner would not get an opportunity to cross-examine the witnesses in reference to those articles. However, the fact of the case is that two witnesses relevant to the articles are yet to be examined. In the background aforesaid, the petitioner would be at liberty to ask all the questions to those witnesses and no prejudice would be caused to the petitioner, if he has already cross-examined 22 witnesses. Taking the case in totality, the impugned orders were passed.

So far as judgment of this court in the case of Kanhaiya Lal (supra) is concerned, application under Section 311 Cr.P.C. was filed at the stage when arguments were heard and concluded. The case was posted for judgment. Taking into consideration the aforesaid, application was dismissed though it is already observed that such an application should not be allowed to fill up the lacuna but on the facts, the judgment aforesaid does not apply and otherwise in the light of the case in R.S. Pai (supra), omission can be a ground to accept the application. The other judgment is in the case of Mohanlal Shamji Soni (supra). Therein, application was under Section 540 Cr.P.C. It was found that power to summon any person as witness or to call for examination can be exercised at any stage of proceedings, if examination is essential and for just decision. The ratio propounded in the aforesaid judgment is to allow the evidence, if it is necessary and to bring truth on record. The case in hand is covered by it. If facts of this case are considered from the aforesaid angle, application needs to be allowed on the ratio propounded by the Apex Court in the case of Mohanlal Shamji Soni (supra). In view of the above, I do not find any illegality in the impugned orders to allow the application submitted by the CBI.

The petition is accordingly dismissed.