Bureau of Investigation Vs. R.S. Pai & Anr  Insc 178 (3 April 2002)
Shah, Brijesh Kumar & D.M. Dharmadhikari Shah, J.
question iswhether prosecution can produce additional documents which are
gathered during investigation, after submitting charge-sheet under Section 173
of the Code of Criminal Procedure, 1973? The Special Court (Trial of Offences Relating to Transactions in Securities)
at Bombay by judgment and order dated 26th July, 2000, rejected Miscellaneous Application
No.338 of 2000 in Special Case No.3 of 1997 filed by the Central Bureau of
Investigation (CBI) for production of additional documents in a case where
application for discharging the respondents was filed. Aggrieved by the said
judgment, the CBI has preferred this appeal.
prosecution story in brief is thatduring the period 2.4.1992 to 20.5.1992, the
FIM Division, Mumbai of Syndicate Bank received funds aggregating to Rs.132.23 crores
for Portfolio Management from Oil Industries Development Board, New Delhi. It was alleged that R. Sundaresan,
the then Divisional Manager of the Bank and other bank officials conspired
during the above said period at Mumbai along with Directors and office bearers
of M/s Fair Growth Investments Ltd. and M/s Fair Growth Financial Services Ltd
and by dishonestly and fraudulently abusing their position as a public servant
caused wrongful gain to private parties and corresponding loss to the Syndicate
Bank. It is also alleged that an amount of Rs.90.58 crores was invested for the
purpose of shares/debentures from M/s Fair Growth Financial Services Ltd. and
others without specific authorization from the Head Office of the Bank and
without adhering to the guidelines of Reserve Bank of India (RBI) and the SEBI.
On 2.6.1993, on the written complaint of the Chief Vigilance Officer of the
Bank, case No. RC 1(BSC)/93-Mum. was registered under Section 120-B read with
Section 420 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of
Corruption Act, 1988 against R. Sundaresan Divisional Manager of Syndicate Bank
and K.R.N. Shenoy, Managing Director of M/s Fair Growth Investments Ltd. After
investigation, charge-sheet was filed by the CBI in the Special Court in Special Case No.3/97 at Bombay against respondent nos.1 and 2. On
27.1.2000, respondent nos.1 and 2 filed discharge application bearing Misc. Application
No.51 of 2000 and Misc. Application No.168 of 2000 before the Special Court. Pending hearing those
applications, appellant sought production of additional documents, which were
gathered during investigation but were not produced before the Court.
application was rejected. Hence, this appeal.
P.P. Malhotra, learned senior counsel for the appellant submitted that the
order passed by the Special Judge is on the face of it illegal and contrary to
the provisions of Section 173 (5) of the Code of Criminal Procedure. It is his
contention that normally the Investigating Officer is required to produce all
the relevant documents at the time of submitting report, but the Investigating
Officer committed mistake in not producing certain documents as in his opinion
those documents were not relevant. Thereafter, it was found that those
documents were relevant so as to connect the accused with the crime. It is
submitted that arguments for framing of the charge were not finally heard and,
therefore, there was no justifiable reason to reject the application for
production of additional documents.
against this, Mr. P. V. Adhyaru, learned senior counsel for respondent no.2
submitted that under Section 173 (5) Cr.P.C., the Investigating Officer has to
produce all the documents at the time of submitting the report. Therefore, the
order passed by the Special
Court cannot be said,
in any way, to be illegal or erroneous.
appreciating the rival contentions, we would first refer to the relevant part
of Section 173 of the Cr.P.C., which read as under:- "173 Report of police
officer on completion of investigation.(1) Every investigation under this
Chapter shall be completed without unnecessary delay.
As soon as it 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 by the State Government, stating (a)
the names of the parties;
nature of the information;
names of the persons who appear to be acquainted with the circumstances of the
any offence appears to have been committed and, if so, by whom;
the accused has been arrested;
he has been released on his bond and, if so, whether with or without sureties;
he has been forwarded in custody under Section 170.
The officer shall also communicate, in such manner as may be prescribed by the
State government, the action taken by him to the person, if any, by whom the
information relating to the commission of the offence was first given.
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;
statements recorded under Section 161 of all the persons whom the prosecution
proposes to examine as its witnesses.
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 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 charge-sheet, 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
Police Officer is required to forward to the Magistrate all the documents or
the relevant extracts thereof on which 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 under Section 173(4) of
the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao
v. The State of Andhra Pradesh [(1958) SCR 283 at 293] and it was held that the
word 'shall' occurring in sub-section 4 of Section 173 and sub-section 3 of
Section 207A 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 investigation. In such cases, there can not
be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained.
result, the appeal is allowed and the impugned judgment and order passed by the
Special Court is set aside. The application filed
by the appellant for production of additional documents is allowed. The Special Court to proceed with the matter in
accordance with law.