Sanjeev Kumar vs Central Bureau of Investigation <BR> Subhash Kataria Vs CBI Sector 30, Chandigarh

Mehinder Singh Sullar, J.—As identical points of law and facts are involved, therefore, I propose to dispose of both the indicated petitions,

arising out of the same impugned order dated 21.4.2012 and same criminal case, by virtue of this common judgment, in order to avoid the

repetition. The epitome of the facts and material, which needs a necessary mention for the limited purpose of deciding the core controversy,

involved in the instant petitions and emanating from the record, is that a criminal case was registered against the petitioners accused, vide FIR No.

RCCHG-2008-A0030 dated 7.11.2008 (Annexure P1), on accusation of having committed the offences punishable under Sections 120-B IPC

and 7 of the Prevention of Corruption Act, 1988 by the Central Bureau of Investigation (for brevity ""the CBI"").

After the completion of investigation, the CBI submitted the challan/final police report against the petitioners-accused, in terms of section 173

Cr.P.C. in CBI Court at Chandigarh. The CBI relied upon a CD tape, containing the conversation between the accused, complainant and others.

As the copy of CD with complete conversation was not supplied to the accused, therefore, the petitioners moved application (Annexure P3) to

direct the prosecution to supply the complete transcript conversation of the voice recorded in the CD. The Special Judge directed the CBI to

supply the transcript conversation of the pointed voice, by way of order dated 1.10.2010 (Annexure P4). The prosecution did not supply the

complete CD, despite specific directions contained in the orders dated 1.10.2010 (Annexure P4), 8.12.2010 (Annexure P5) and 21.1.2011

(Annexure P6).

Finding no alternative, then, the petitioners moved another application for supplying the complete transcript conversation of the CD. The trial

Judge again directed the prosecution to supply to the accused a complete transcript conversation of CD handed over by the Investigating Officer,

vide detailed order dated 24.1.2011 (Annexure P-7).

Subsequently, position remained the same, which necessitated the petitioners-accused to move another application (Annexure P15) for direction

to CBI to remove/rectify the discrepancies/omissions in the CD. The CBI filed the reply (Annexure P16) to the application.

However, the Special Judge dismissed the application (Annexure P-15), by means of impugned order dated 21.4.2012 (Annexure P-17).

The petitioners-accused did not feel satisfied and preferred the present petitions to challenge the impugned order (Annexure P17), invoking the

provisions of section 482 Cr.P.C.

Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts

over the entire matter, to my mind, the instant petitions deserve to be partly accepted in this context.

As is evident from the record, that the prosecution has relied upon the indicated transcript version of CD, but its copy was not supplied to me

accused, despite repeated directions. Ultimately, in the wake of the application, the trial Judge directed the prosecution to supply to all the accused

the complete transcript version of the CD in question, by virtue of order (Annexure P7), which, in substance, is as under (paras 14 & 15):-

It is very interesting to note that along with the report u/s 173 Cr.P.C. the prosecution has attached the list of the articles relied upon by the

prosecution, which are to be produced during the course of trial and in that list, the CD in dispute i.e. the CD handed over by the complainant is

mentioned at Sr. No. 6. This CD is also (the) relied upon document of the prosecution. There is no mention in the list of documents or in the list of

the articles that which portion of the CD is (the) relied upon portion and which portion is not relevant for this case. No note has been appended

with the report u/s 173 Cr.P.C. as required u/s 173 (6) Cr.P.C. that any part of the CD is not relevant to the subject matter of these proceedings.

Once, the entire CD is the relied upon article by the prosecution, I found substance in the contentions of the learned defence counsel that the CD

cannot be cut into pieces/portions and the complete CD is one article, which is relied upon by the prosecution, no exception u/s 173(6) Cr.P.C.

has been claimed by the prosecution to withheld any portion of the said CD from the accused on any ground so, the prosecution is required to

supply the complete transcript of the CD to all the accused.

Thus, keeping in view my above discussion, the present application is hereby allowed. The prosecution is directed to supply to all the accused

the complete transcription of the CD handed over by complainant Arvind Kumar Pandey to the Investigating Officer.

Strange enough, the Special Judge again dismissed the application (Annexure P15) for rectification/removing the discrepancies/omissions in the

CD, by way of impugned order (Annexure P17), the operative part of which is as under:-

From the perusal of the record in the light of the aforesaid rival contentions, it is crystal clear that through order dated 24.01.2011, the prosecution

was directed to supply to all the accused complete transcription of the CD handed over by complainant Arvind Kumar Pandey to the Investigating

Officer. Through order dated 16.08.2011, Investigating Officer was directed to provide complete transcription. After hearing the CD, through

order dated 01.12.2011, Investigating Officer was directed to prepare complete transcription of conversation/voices, time and place etc. In

pursuance to above orders, the investigating officer has submitted complete transcription. The accused have further pointed out certain omissions

and prayed for rectification. The Investigating Officer has shown his inability to do the same. In spite of specific directions, the Investigating Officer

is not willing to remove the omissions despite being pointed out by the accused. So, accused will be at liberty to submit their part of the transcript,

as they already have copy of complete conversation. It is well settled principle of law that the rules of procedure are handmaid of justice. The rules

of procedure cannot be used to subvert the ends of justice. In view of the above material facts and well settled principle of law, application dated

06.04.2012 for rectification of omissions in transcript is dismissed.

As is clear from the impugned order that the main ground, which appears to have been weighed with the Special Judge to negate the prayer of

the petitioners, was that the Investigating Officer has shown his inability to rectify the omissions/discrepancies pointed out by the accused.

Here, to me, the trial Judge slipped into a deep legal error in this respect. Section 173(2) Cr.P.C. postulates that as soon as, the investigation 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. Sub-section (5) of this section further posits that when such report is in respect of a case to which section

170 applies, the police officer shall forward to the Magistrate along with such report of all documents or relevant extracts thereof and the

statements recorded during the course of investigation u/s 161, on which, the prosecution proposes to rely and if the police officer is of the opinion

that any part of any such statement is not relevant to the subject matter of the proceeding or that its disclosure to the accused is not essential in the

interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate

to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. Copies of such documents and

statements/material referred to in sub-section (S) have to be supplied to the accused.

Sequelly, section 207 Cr.P.C. mandates that in any case where the proceeding has been instituted on a police report, the Magistrate shall

without delay furnish to the accused, free of costs, copies of the police report, the first information report, confessions, statements, if any, recorded

u/s 164 Cr.P.C. and any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of

section 173, provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (i) and considering the reasons

given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper,

shall be furnished to the accused.

Likewise, according to sections 226 & 227 Cr.P.C., when the accused appears or is brought before the court in pursuance of a commitment

of the case u/s 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he

proposes to prove the guilt of the accused and if, upon consideration of the record of the case and the documents submitted therewith, and after

hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding

against the accused, he shall discharge the accused and record his reasons for so doing. Otherwise, he will frame the charge, as envisaged u/s 228

Cr.P.C.

A conjoint and meaningful reading of these provisions would reveal that the accused is entitled to all the documents/material, which the

prosecution proposes to rely against him. It is the very valuable statutory right of the accused to claim the copies of complete set of material, which

prosecution proposes to rely against him in order to effectively build up his defence. The prosecution cannot withheld or deprive the accused from

the access of such material on a false pretext that the Investigating Officer has shown his inability to do the same. In spite of specific directions, he

is not willing to remove the omissions despite being pointed out by the accused and that it will strengthen the defence of the accused. If such

untenable excuses of the prosecution are accepted, then, the very concept of fair trial in criminal cases would pale into insignificance. Moreover, it

is now well settled proposition of law only that material can legally be relied upon by the prosecution the complete copies of which, were duly

supplied to the accused and not otherwise.

What cannot possibly be disputed here that initially, the Special Judge has directed the prosecution to provide the complete transcript version

contained in the CD to the accused, by means of order (Annexure P7), but it took a somersault in reviewing its earlier order and declined the

prayer of the petitioners-accused, vide impugned order (Annexure P17), which is not legally permissible. Therefore, to my mind, the trial Judge has

committed a grave legal error & material procedural irregularity and the impugned order cannot legally be sustained in the obtaining circumstances

of the case.

In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the

course of trial of the main case, the instant petitions are partly accepted. Consequently, the impugned order (Annexure P17) is hereby set aside.

The prosecution is directed to supply the complete transcript version of the indicated CD to the accused in pursuance of the initial order (Annexure

P7) of the Special Judge. Needless to mention that if the prosecution fails to supply the complete transcript version contained in the CD, then, the

Special Judge would naturally rely upon that portion of the transcription of the CD, the copy of which was actually supplied to the accused and not

otherwise.