Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 853 OF 2019
(arising out of SLP (Crl.) No(s). 2133 of 2019)
STATE REPRESENTED BY INSPECTOR OF POLICE
CENTRAL BUREAU OF INVESTIGATION ...APPELLANT(S)
VERSUS
M. SUBRAHMANYAM ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The Inspector of Police, Central Bureau of Investigation,
Vishakhapatnam, is aggrieved by order dated 06.08.2018 of the
High Court, dismissing the application under Section 482, Cr.P.C.
by the prosecution to bring on record the order passed by the
Superintendent of Police, CBI, Visakhapatnam, under Section 17 of
Signature Not Verified
the Prevention of Corruption Act, 1988 (hereinafter referred to as
Digitally signed by
NARENDRA PRASAD
Date: 2019.05.07
17:40:01 IST
Reason:
‘the Act’), authorising Sri V.K.C. Reddy, the then Deputy
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Superintendent of Police, CBI, Visakhapatnam, to investigate
against the respondent, an Income Tax Officer, Visakhapatnam,
pursuant to an F.I.R. lodged under Sections 13(2) read with 13(1)(c)
of the Act on allegation for possessing moveable and immoveable
properties disproportionate to the known sources of income.
3. Learned counsel for the appellant submits that the order of
authorisation for investigation could not be filed along with the
chargesheet due to inadvertence. It was subsequently sought to be
filed under Section 242 Cr.P.C. by Crl.M.P. No.26 of 2008 much
prior to the commencement of the trial. The application was not
rejected on merits but on the ground that no satisfactory
explanation had been furnished for the delay in submission.
Crl.M.P. No.560 of 2013 was then filed afresh under Section 173(2)
(5)(a), Cr.P.C. to bring the authorisation on record. It was
erroneously dismissed applying the principles of res judicata even
though there had been no adjudication on merits earlier. The truth
and veracity of the authorisation was not in dispute. The interest of
justice therefore required that the authorisation should have been
allowed to be brought on record. The issue pertained only to a
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matter of procedure. Section 362 Cr.P.C. was wrongly relied upon
by the trail judge. Reliance was placed on Central Bureau of
, (2002) 5 SCC 82.
Investigation vs. R.S. Pai and another
4. Learned counsel for the respondent contended that the earlier
application under Section 242 Cr.P.C. having been dismissed,
appropriately a revision or appeal ought to have been preferred.
The order of rejection having attained finality no fresh application
for the same purpose could have been filed quoting another
provision of the Code. Serious prejudice shall be caused to the
respondent, affecting the course of justice if it were to be permitted
at this stage.
5. We have considered the submissions on behalf of the parties
and opine that the appeal deserves to be allowed for reasons
enumerated hereinafter.
6. FIR No.RC 35(A)/2002CBI/ACB/VSP (CC03 of 2005) was
registered against the respondent on 01.11.2002 under the Act.
Chargesheet was filed on 05.04.2005. On 07.01.2008, an
application was filed on behalf of the prosecution under Section 242
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Cr.P.C. to bring on record the authorisation for investigation issued
to Shri V.K. Reddy. On 11.03.2008 it was dismissed on the ground
that no proper explanation had been furnished for not filing the
same along with the chargesheet. Subsequently, on 21.06.2013,
the authorisation was again sought to be brought on record by the
prosecution invoking Section 173(2)(5)(a) of the Code giving rise to
the impugned orders.
7. The truth and veracity of the authorisation order not being in
issue, the failure to file it along with the chargesheet was an
omission constituting a procedural lapse only. The rejection of the
first application on 11.03.2008 not having been ordered on merits,
but for failure to furnish a satisfactory explanation for the delay,
Section 362 Cr.P.C has no relevance on facts. We are, therefore, of
the opinion that there was no impediment in the appellant seeking
to bring the same on record subsequently under Section 173(2)(5)(a)
of the Code. The consequences of disallowing the procedural lapse
were substantive in nature.
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8. In Bihar State Electricity Board vs. Bhowra Kankanee
1984 Supp SCC 597, the Court opined:
Collieries Ltd.,
“6. Undoubtedly, there is some negligence but when a
substantive matter is dismissed on the ground of failure
to comply with procedural directions, there is always
some element of negligence involved in it because a
vigilant litigant would not miss complying with
procedural direction….. The question is whether the
degree of negligence is so high as to bang the door of
court to a suitor seeking justice. In other words, should
an investigation of facts for rendering justice be
peremptorily thwarted by some procedural lacuna?”
9. The failure to bring the authorisation on record, as observed,
was more a matter of procedure, which is but a handmaid of
justice. Substantive justice must always prevail over procedural or
technical justice. To hold that failure to explain delay in a
procedural matter would operate as res judicata will be a travesty of
justice considering that the present is a matter relating to
corruption in public life by holder of a public post. The rights of an
accused are undoubtedly important, but so is the rule of law and
societal interest in ensuring that an alleged offender be subjected to
the laws of the land in the larger public interest. To put the rights
of an accused at a higher pedestal and to make the rule of law and
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societal interest in prevention of crime, subservient to the same
cannot be considered as dispensation of justice. A balance
therefore has to be struck A procedural lapse cannot be placed at
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par with what is or may be substantive violation of the law.
10. In Sakshi vs. Union of India, (2004) 5 SCC 518, the Court
observed:
“31.…. There is major difference between substantive
provisions defining crimes and providing punishment
for the same and procedural enactment laying down the
procedure of trial of such offences. Rules of procedure
are handmaiden of justice and are meant to advance
and not to obstruct the cause of justice. It is, therefore,
permissible for the court to expand or enlarge the
meanings of such provisions in order to elicit the truth
and do justice with the parties.”
11. The High Court was exercising inherent jurisdiction in the
interest of justice and to prevent the abuse of the process of law. In
the facts and circumstances of the case, the High Court ought to
have exercised its inherent powers to allow the bringing of the
authorisation order on record rather than to have adopted a narrow
and pedantic approach to its own jurisdiction given the provisions
of Section 173(2)(5)(a), Cr.P.C., as observed in R.S. Pai (supra):
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“7. From the aforesaid subsections, it is apparent
that normally, the investigating officer is required to
produce all the relevant documents at the time of
submitting the chargesheet. 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 chargesheet, it is
always open to the investigating officer to produce
the same with the permission of the court. In our
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 subsection (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 under Section 173(4) of the
Code of Criminal Procedure, 1898 was considered by
this Court in Narayan Rao v. State of A.P. and it was
held that the word “shall” occurring in subsection
(4) of Section 173 and subsection (3) of Section 207
A is not mandatory but only directory. Further, the
scheme of subsection (8) of Section 173 also makes
it abundantly clear that even after the chargesheet
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
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prejudice to the accused. Hence, the impugned order
passed by the Special Court cannot be sustained.”
12. The appeal will, therefore, have to be allowed and the
prosecution is permitted to bring the order of authorisation for
investigation on record, which we do hereby order.
13. But the matter shall not end there. As noticed, the charge
sheet was submitted on 05.04.2005. No explanation has been
furnished as to why the prosecution exhibited such laxity in seeking
to bring the authorisation order on record nearly three years later
on 07.01.2008. If that were not enough, after rejection of the same
on 11.03.2008, the prosecution again remained silent till it filed the
fresh application under Section 173(2)(5)(a) as late as on
21.06.2013, with no explanation furnished for the same. We have
no hesitation in observing that considering the matter from the
administrative perspective, a lapse on the first occasion may be an
inadvertent error but the repeat of the same lapse raises serious
doubts and issues whether it was inadvertent or deliberate. The
present was a case relating to corruption in public life by a public
servant owing allegiance to the Constitution. The chargesheet was
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filed in 2005. The trial has successfully been thwarted at a very
nascent stage for long years. The possibility, in the facts of the
present case, cannot be entirely ruled out of a deliberate omission,
to favour an accused.
14. We therefore direct that a senior officer of the Central Bureau
of Investigation, Visakhapatnam shall hold an inquiry and
determine the circumstances under which the initial lapse took
place, and the reason for delay in approaching the court. The
inquiry shall also encompass the passage of nearly 5 years after
rejection of the same, and the belated attempt in 2013 only.
Responsibility must be fixed in the report and adequate disciplinary
action be initiated and concluded against the concerned persons in
accordance with law. Compliance report shall be filed before this
Court along with conclusions of the inquiry and action taken,
within a period of three months from today.
.……………………….J.
(Arun Mishra)
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………………………..J.
(Navin Sinha)
New Delhi,
May 07, 2019.
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