P.K. Shanmuga Sundaram vs State

K. Mohan Ram, J.—Admit.

Mr. Hasan Mohamed Jinnah, learned Government Advocate (Crl. Side) takes notice for the respondent.

With the consent of the learned Counsel appearing on either side, the Criminal Revision Case itself has been taken up for the final disposal.

The learned Counsel for the petitioner submitted that the petitioner is facing trial in C.C. No. 8875 of 2002 on the file of the learned XI

Metropolitan Magistrate, Saidapet, Chennai for the alleged offences u/s 419 and 420 IPC; a charge sheet was filed even in the year 2002 and so

far thirteen witnesses have been examined and at this stage, the investigating officer, the respondent herein had filed Crl.M.P. No. 3944 OF 2007

u/s 173(5) of Cr.P.C., seeking permission to file certain documents, the said petition was allowed by the learned Magistrate and being aggrieved

by that, the petitioner is before this Court by way of revision.

The learned Counsel for the petitioner submitted that even according to the respondent, the documents which are now sought to be produced

were available even in the year 2002, but by mistake and oversight the same were not produced before the Court and hence has sought for

permission to produce those documents. The learned Counsel submitted that having waited for all these years, it is not open to the respondent to

produce those documents at the fag end of the trial.

The learned Counsel for the petitioner submitted that Section 173(5) Cr.P.C., reads as under:

173(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 during

investigation;

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

The provision u/s 173(5) Cr.P.C. is mandatory in nature and as such it is always incumbent on the part of the respondent to produce all the

documents which the prosecution proposes to rely upon at the earliest.

Countering the said submission, Mr. Hasan Mohamed Jinnah, learned Government Advocate (crl side) submits that only due to mistake and

inadvertence the documents which are now sought to be produced could not be produced earlier and if production of such document is permitted

no prejudice would be caused to the petitioner. The learned Government Advocate further submitted that the provisions contained in Section

173(5) of Cr.P.C., are not mandatory in nature, but only directory.

I have considered the said submissions made by the counsel appearing on either side, produced the materials available on record and the order

passed by the learned Magistrate.

Before considering the aforesaid submissions, it will be useful to refer to the decision rendered in the case of Central Bureau of Investigation v.

R.S. Pai and Anr. reported in 2002 Scc (Cri.) 950 and in the said decision, after considering the scope of 173(5) of Cr.P.C., the Apex Court in

paragraph No. 7, has laid down as under:

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 the charge-

sheet, it is always open to the investigating officer to produce the same with the permission of the court. In my view, considering the preliminary

stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts

thereof on which the 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

u/s 173(4) of the Code of Criminal Procedure, 1989 was considered by this Court in Narayan Rao v. State of A.P. (SCR at p.293) and it was

held that the word ""shall"" occurring in Sub-section (4) of Section 173 and Sub-section (3) of Section 207-A 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 the investigation. In such cases, there cannot be any prejudice to the

accused. Hence the impugned order passed by the Special Court cannot be sustained.

A careful reading of the aforesaid decision makes it abundantly clear that as per the law laid down in Narayan Rao Vs. The State of Andhra

Pradesh, , the word ""shall"" occurring in Sub-section (4) of Section 173 and Sub-section (3) of Section 207-A is not mandatory but only directory

in nature.

Having held so, it is further observed that since there is no specific provision, it cannot be held that additional documents cannot be produced

subsequently. If some mistake had crept in at the time of the filing of the charge sheet, it is always open to the investigating officer to produce the

same with the permission of the trial Court. If the order of the learned Magistrate is considered in the light of the aforesaid dicta laid down by the

Apex court, it cannot be said that the order sought to be revised suffers from any infirmity, irregularity or illegality. Therefore this Court is of the

opinion that there is no reason to interfere with the same. Accordingly, the above Criminal Revision Case is dismissed.