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Wednesday, August 21, 2013

Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109 of the Indian Penal Code.- Non- filing of original complaint not fatal when not relied upon it = whether the prosecution is bound to produce the original complaint/application filed by an unknown person, based on which an inquiry was initiated by the Anti Corruption Bureau.= the prosecution has categorically taken the stand that they do not propose to rely upon the information passed on to the Anti Corruption Bureau leading to an open inquiry against the accused persons. We fail to see how the accused persons are prejudiced by non-disclosure of the name of the person who sent the complaint as well as the original copy of the complaint received by the Anti Corruption Bureau. Situations are many where certain persons do not want to disclose the identity as well as the information/complaint passed on them to the Anti Corruption Bureau. If the names of the persons, as well as the copy of the complaint sent by them are disclosed, that may cause embarrassment to them and sometimes threat to their life. This complaint only triggered an enquiry. Ultimately, the first information was lodged on the basis of an open inquiry bearing VER No.31/1987 and it is based on that inquiry the first information report dated 13.10.1992 was registered. After completion of the investigation and after getting the sanction to prosecute accused No.1, charge-sheet was filed. PW1 also did not depose anything about the receipt of complaint/application in his examination-in-chief but receipt of the complaint/application and its contents having been relied upon by the defence during cross-examination of PW1. 11. We also emphasize that in the instant case the prosecution has relied upon the material which was collected during the investigation. It is not a case where some materials/documents were collected by the investigating agency during the investigations which are in favour of the prosecution and the prosecution is suppressing those documents. We are of the opinion that non-supply of the complaint or contents thereof do not, at all, violate the principle of fair trial. The said complaint has no relevancy in the context of this prosecution and in no manner, it would prejudice the petitioner. 12. Above being the factual and legal position, we find no reason to interfere with the order of the Bombay High Court and dismiss this special leave petition.

                            published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40662                           
       REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL APPEALLATE JURISDICTION


              SPECIAL LEAVE PETITION (CRIMINAL) NO.5897 OF 2013



Manjeet Singh Khera                                           …. Petitioner

                                   Versus

State of Maharashtra                                ….Respondent


                                  O R D E R



K.S. Radhakrishnan, J.



1.    We are,  in  this  case,  concerned  with  the  question  whether  the
prosecution is bound to produce the original complaint/application filed  by
an unknown person, based on which an  inquiry  was  initiated  by  the  Anti
Corruption Bureau.

2.    The petitioner (first  accused)  along  with  three  others  moved  an
application before the Special  Sessions  Court  of  Greater  Bombay  for  a
direction to the prosecution/Anti Corruption Bureau to produce the  original
complaint/application filed  by  an  unknown  person,  leading  the  accused
person to be charge-sheeted for  offences  under  Section  13(2)  read  with
13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109  of
the Indian Penal Code.

3.    The petitioner submitted that on the basis of that complaint  an  open
enquiry No.31/198 was conducted and following that  Special  Case  No.39  of
1999 was registered against the accused person.  It  was  brought  out  that
one complaint/application was received by the  Anti  Corruption  Bureau  and
copy of that application was forwarded to  the  Home  Department.   PW1  had
deposed that he could not disclose the name of the person who had sent  that
complaint.  It was mentioned therein that the first accused was having  huge
movable and immovable property at Bombay, Aurangabad and Nagpur.  The  first
accused wanted a copy of the original complaint to be  produced  before  the
court as well as the name of the person who had sent that complaint.

4.    The prosecution  resisted  the  application  preferred  by  the  first
accused contending that the  prosecution  would  not  be  relying  upon  the
complaint/application sought to be produced.  On the  other  hand,  discreet
enquiry was  conducted  based  on  that  application  and  after  collecting
sufficient materials, the prosecution lodged first  information  report  and
thereafter investigation was carried out.  Further it was pointed  out  that
prosecution cannot examine the person who  gave  the  complaint/application,
otherwise no person would  pass  on  any  secret  information  to  the  Anti
Corruption Bureau.

5.    The Special Judge, Prevention of Anti Corruption, found  no  basis  in
the application calling upon for the production of  the  original  complaint
as well as the name of the complainant,  who  had  sent  the  complaint  and
rejected  the  application  vide  his  order  dated  29.01.2011,  which  was
confirmed by the High Court on 25.02.2013, against which this special  leave
petition has been preferred.

6.    Shri Amol  Chitale,  learned  counsel  appearing  for  the  petitioner
submitted that the petitioner is not interested in getting the name  of  the
person who made the complaint, but  wanted  to  know  the  contents  of  the
complaint, which cannot be said to be secret information.   Learned  counsel
also submitted that prosecution cannot exercise privilege of  non-disclosure
of the information they have received,  which  lead  to  the  investigation.
Learned counsel placed reliance on  the  decision  of  this  Court  in  V.K.
Sasikala v. State Represented by Superintendent of Police (2012) 9  SCC  771
and submitted that when accused applies for inspection of documents  in  the
custody of the court, even at the advanced stage of the trial, the court  is
duty bound to supply those documents and the same reasoning  will  apply  in
the case of prosecution as well.

7.     Since the entire emphasis of the counsel for  the  petitioner  is  on
V.K.Sasikala case (supra), before embarking on the discussion on  the  issue
involved,  we  would  first  like  to  discuss  the  ratio  of  V.K.Sasikala
case(supra).   In  that  case,   the   appellant   -accused   had   demanded
copies/inspection of those  documents  which  were  not  relied  on  by  the
prosecution but at the same time, these  documents  formed  part  of  police
report and were in the custody of the Court.   Demand  was  made  after  the
prosecution had led the evidence and at the stage  of  Section  313  Cr.P.C.
questioning.  In this backdrop, the question  that  fell  for  determination
was as to whether the accused would be entitled to the documents which  were
part of police report under Section 173(5) of the Code of  Civil  Procedure,
and were in the custody of the Court.  The Court  explained  the  provisions
governing the process of investigation of a criminal charge, the  duties  of
the investigating agency and the role of the courts  after  the  process  of
investigation is over and its legal expositor was narrated in the  following
manner:

            “13.Without dilating on the said aspect of the matter  what  has
      to be taken note of  now  are  the  provisions  of  the  Code  with  a
      situation/stage after completion of the investigation of  a  case.  In
      this regard the provisions  of  Section  173(5)  may  be  specifically
      noted. The said provision makes  it  incumbent  on  the  investigating
      agency   to   forward/transmit   to   the    court    concerned    all
      documents/statement, etc. on which the prosecution proposes  to  reply
      in the course of the trial.  Section 173(5), however,  is  subject  to
      the provisions  of  Section  173(5)  which  confers  a  power  on  the
      investigating officer to request the court concerned  to  exclude  any
      part of the statement or documents forwarded under Section 173(5) from
      the copies to be granted to the accused.

            14.The court having jurisdiction to deal  with  the  matter,  on
      receipt of the report and the  accompanying  documents  under  Section
      173, is next required to  decide  as  to  whether  cognizance  of  the
      offence alleged is  to  be  taken  in  which  event  summons  for  the
      appearance of the accused before the court is to be issued.   On  such
      appearance, under Section 207 Cr.P.C, the court concerned is  required
      to furnish to the accused copies of the following documents:

            1. The police report;

            2.The first information report recorded under Section 154;

            3.The statements recorded under sub-section (3) of  Section  161
      of  all persons whom  the  prosecution  proposes  to  examine  as  its
      witnesses, excluding therefrom any part in regard to which  a  request
      for such exclusion has been made by  the  police  officer  under  sub-
      section(6) of Section 173.

            4. The confessions and statements, if any recorded under Section
      164;

            5. Any other document or relevant extract thereof  forwarded  to
      the Magistrate with the police report under sub-section (5) of Section
      173.

            15. While the first proviso to Section 207 empowers the court to
      exclude from the copies to be furnished to the accused  such  portions
      as may be covered by Section 173(6), the second proviso to Section 207
      empowers the court to provide to the  accused  an  inspection  of  the
      documents instead of copies thereof, if, in the opinion of  the  court
      it is not practicable to furnish to the  accused  the  copies  of  the
      documents because of the voluminous content thereof. We would like  to
      emphasise, at this  stage,  that  while  referring  to  the  aforesaid
      provisions of the Code,  we  have  deliberately  used  the  expression
      “court” instead  of  the  expression  “Magistrate”  as  under  various
      special enactments the requirement of commitment of a case to a higher
      court (Court of Session) by the Magistrate as mandated by the Code has
      been dispensed with and the Special Courts constituted under a special
      statute have been empowered to receive the report of the investigation
      along with the relevant  documents  directly  from  the  investigating
      agency and thereafter  to  take  cognizance  of  the  offence,  if  so
      required.”



8.    The Court also noticed that seizure of large number  of  documents  in
the course of investigation of a criminal case is a common  feature.   After
completion of the process of investigation  and  before  submission  of  the
report to the Court under Section 173 Cr.P.C, a fair amount  of  application
of mind on the part of the investigating agency is inbuilt in  the  process.
These documents would fall  in  two  categories:  one,  which  supports  the
prosecution case and other which supports the accused.  At this stage,  duty
is cast on the investigating officer to evaluate the two sets  of  documents
and materials collected and, if required, to exonerate the accused  at  that
stage itself.  However, many times it  so  happens  that  the  investigating
officer ignores the part of seized documents which favour  the  accused  and
forwards to the Court only those documents which supports  the  prosecution.
If such a situation is pointed out by the accused and those documents  which
were supporting the accused and have not been forwarded and are not  on  the
record of the Court, whether the prosecution  would  have  to  supply  those
documents when the accused person demands them?  The Court  did  not  answer
this question specifically stating that the said question did not  arise  in
the said case.  In that case, the documents  were  forwarded  to  the  Court
under Section 173(5) Cr.P.C. but were not relied  upon  by  the  prosecution
and the accused wanted copies/inspection of  those  documents.   This  Court
held that it was incumbent upon the trial court  to  supply  the  copies  of
these documents to the accused as that entitlement  was  a  facet  of  just,
fair and transparent  investigation/trial  and  constituted  an  inalienable
attribute  of  the  process  of  a  fair  trial  which  Article  21  of  the
Constitution guarantees to every accused.  We would like  to  reproduce  the
following portion of the said judgment discussing this aspect:

      “21.The issue that has  emerged  before  us  is,  therefore,  somewhat
         larger than what has been projected by the State and what has been
         dealt with by the High Court. The question arising would no longer
         be one of compliance or  non-compliance  with  the  provisions  of
         Section 207 Cr.P.C. and would travel beyond the  confines  of  the
         strict language of the provisions of Cr.P.C. and  touch  upon  the
         larger  doctrine  of  a  free  and  fair  trial  that   has   been
         painstakingly built up by the courts on a purposive interpretation
         of Article 21 of the Constitution. It is not the stage  of  making
         of the request; the efflux of time that has occurred or the  prior
         conduct of the accused that is material. What is  of  significance
         is if in  a  given  situation  the  accused  comes  to  the  court
         contending  that  some  papers  forwarded  to  the  court  by  the
         investigating agency have not been exhibited by the prosecution as
         the same favours the accused the court must concede a right to the
         accused to have an access to the said documents,  if  so  claimed.
         This, according to us, is the core issue in the case which must be
         answered affirmatively. In  this  regard,  we  would  like  to  be
         specific in saying that we find it difficult  to  agree  with  the
         view taken by the High Court that the  accused  must  be  made  to
         await the conclusion of the trial to test the  plea  of  prejudice
         that he may have raised. Such a  plea  must  be  answered  at  the
         earliest and certainly before the conclusion of  the  trial,  even
         though it may be raised by the accused belatedly. This is how  the
         scales of  justice  in  our  criminal  jurisprudence  have  to  be
         balanced.

      23.1.   xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”



9.    Keeping in mind the principle of  law  and  ratio  laid  down  in  the
aforesaid case, we now proceed to deal with the  case  at  hand.   As  noted
above, the petitioner wants a copy of the complaint which  was  received  by
the Anti-Corruption Bureau.  What is to be borne in mind is that this was  a
complaint given by some person to  the  Anti-Corruption  Bureau  which  only
triggered the  investigation.   Thus,  this  complaint  simply  provided  an
information to the Anti-Corruption Bureau and is not the foundation  of  the
case or even the FIR.  In fact,  Anti-Corruption  Bureau,  thereafter,  held
its  own  independent  investigation  into  the  matter  and  collected  the
material which was forwarded to  the  Home  Department  and  on  that  basis
challan was filed  in  the  Court  pointing  out  that  sufficient  material
emerged on the record as a result  of  the  said  investigation  to  proceed
against the petitioner for offences under the provisions  of  Prevention  of
Corruption Act read with Section 109 of the IPC.  In the final report  under
Section 173(5) Cr.P.C., this complaint was never  forwarded.   Thus,  it  is
not a part of police report and is  not  in  custody  of  the  trial  court,
unlike the situation in V.K.Sasikala case (supra).  No  reliance  is  placed
on the documents by the prosecution either.   It  is  not  even  a  document
which would support the case of the petitioner in  any  manner.   Hence  the
judgment of V.K.Sasikala (supra) would have no application  to  the  instant
case.


10.    We  state  at  the  cost  of  repetition  that  the  prosecution  has
categorically taken the stand that they do not  propose  to  rely  upon  the
information passed on to the Anti  Corruption  Bureau  leading  to  an  open
inquiry against the accused  persons.   We  fail  to  see  how  the  accused
persons are prejudiced by non-disclosure of the name of the person who  sent
the complaint as well as the original copy of the complaint received by  the
Anti Corruption Bureau.  Situations are many where certain  persons  do  not
want to disclose the identity as well as  the  information/complaint  passed
on them to the Anti Corruption Bureau.  If the  names  of  the  persons,  as
well as the copy of the complaint sent  by  them  are  disclosed,  that  may
cause embarrassment to them  and  sometimes  threat  to  their  life.   This
complaint only triggered an enquiry.  Ultimately, the first information  was
lodged on the basis of an open inquiry bearing  VER  No.31/1987  and  it  is
based on that inquiry the first  information  report  dated  13.10.1992  was
registered.  After completion of the investigation  and  after  getting  the
sanction to prosecute accused No.1, charge-sheet was filed.   PW1  also  did
not depose anything  about  the  receipt  of  complaint/application  in  his
examination-in-chief  but  receipt  of  the  complaint/application  and  its
contents having been relied upon by the defence during cross-examination  of
PW1.

11.   We also emphasize that in the instant case the prosecution has  relied
upon the material which was collected during the investigation.  It  is  not
a case where some materials/documents were collected  by  the  investigating
agency during the investigations which are in favour of the prosecution  and
the prosecution is suppressing those documents.  We are of the opinion  that
non-supply of the complaint or contents thereof do not, at all, violate  the
principle of fair trial.   The  said  complaint  has  no  relevancy  in  the
context of this prosecution  and  in  no  manner,  it  would  prejudice  the
petitioner.


 12.  Above being the factual and legal  position,  we  find  no  reason  to
interfere with the order of the Bombay High Court and dismiss  this  special
leave petition.



                                        ………………………………..J.
                                        (K.S. Radhakrishnan)



                                        ……………………………..J.
                                        (A.K. Sikri)

New Delhi
August 21, 2013

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