@JUDGMENTTAG-ORDER
K.N. Phaneendra, J.@mdashThe present petition is filed seeking to set aside the order dated 23.12.2013 passed by the III Addl. Sessions and Special Judge for CBI cases at Dharwad in Special (CBI) CC No. 1/2013 in allowing the application filed by the prosecution u/s 173(5)(8) read with Section 311 of Cr.P.C. The brief factual matrix that emanate from the record which led to filing of this Petition are: The CBI, ACB, Bangalore, has filed a charge-sheet against the petitioner (A1) and others for the offence punishable u/s 120-B read with Sections 420, 471, 409, 477-A, 201 of Indian Penal Code, 1860 and also u/S. 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. After due investigation, the Investigation Officer filed a charge-sheet and after committal, the case has been taken up by the End Addl. Sessions and Special Judge for CBI cases at Dharwad.
2. The allegations made against the petitioner and others are that, the petitioner while working as a Clerk in Varada Grameena Bank during the years 1995 to 1998, he was also placed in charge of the Varada Grameena Bank Extension Counter, Gotehalli, Karwar Taluka, he entered into a Criminal conspiracy with other accused persons, presented false documents as genuine and created false accounts and cheated me Bank. He fraudulently diverted the bank''s funds from the heads of interest, deposits to his own accounts, to the account of A2 to A4, also to the account of his wife and knocked off Rs. 34,60,643/- with active collusion with other accused. During the course of investigation, it appears, the Investigating Officer has seized/collected some withdrawal slips, credit slips, pay-in-slips and etc.. The signatures on those documents were denied by A1. It is an undisputed fact that during the course of investigation, these documents were not sent for handwriting expert in order to ascertain the signature on these documents were that of Al? It is the further allegation against A1 that he used to issue such withdrawal slips, credit slips and pay-in-slips on behalf of the customers who are un-educated or semi-educated. After framing the charges, the trial Court has completed the trial and also heard the arguments for some time, at the time of arguments, it was brought to the notice of the Court by the learned Counsel for the accused that the Investigation Officer has not taken pains to send these disputed credit slips/withdrawal slips/pay-in-slips to the experts in order to get confirmation of the disputed signature of A1. Having awakened by the said arguments of the learned Counsel, it appears, the learned Special Public Prosecutor for CBI filed an application u/S. 311 of Cr.P.C. seeking the indulgence of the Court to secure the experts evidence who has actually examined these three documents in a Civil case in OS No. 20/2001 on the file of the Civil Judge (Sr. Dn.), Karwar. The learned Trial Judge, dismissed the said application filed u/S. 311 of Cr.P.C. and refused to summon the hand-writing or finger print expert, to examine me said document filed in OS No. 20/2001 on the ground that the said documents as well as the report of the expert were not placed before the Court by the prosecution. It is further seen that in order to cure this defect, one more application was filed u/S. 173(5) and (8) read with Section 311 of Cr.P.C. seeking the indulgence of the court to secure the said document as well as the report of the expert and also to summon the said expert before the court for the purpose of giving evidence. So far as the second application filed under the above said provisions, is concerned it was seriously contested by A1. The learned Special Judge for CBI, after giving thorough anxious consideration, so far as the contention raised by the accused, has allowed the said application and permitted the prosecution to lead further evidence by means of summoning the handwriting expert and also to lead evidence with regard to the hand-writing expert''s report on the above said disputed documents.
3. It is an undisputed fact that when OS No. 20/2001 is pending before the Civil Court, it appears the Civil Court has summoned some of the documents from the CBI Court for the purpose of adjudication of the suit. The documents which are marked before the CBI Court as Ex. R25, P.47 and P.54 were sent to the Civil Court. It appears, the Civil Court at the instance of the plaintiff in the said case after hearing the parties referred the said documents to the handwriting expert and thereafter, the handwriting expert has furnished his report. When the records were sent back to the CBI Court whether by oversight or by any inadvertence these documents along with the report of the handwriting experts were sent to the CBI Court. At that juncture, it appears, the learned PP attached to the CBI court has looked into these documents and tried to place that report and examine the handwriting expert as that report is favourable to the prosecution. The learned Special Judge allowed the application.
4. The learned Counsel for the petitioner/accused strenuously contends that the documents were neither secured during the course of investigation nor the Investigating Officer has made any efforts to secure those documents particularly the report of the Handwriting expert. After coming to know that these documents were sent to the Hand-writing expert by the Civil Court, in order to cover up the lapses of investigation, it appears through the Public Prosecutor of CBI Court, he made an application u/S. 173(5) & (8) of Cr.P.C. to take advantage of the said documents and to use those materials as additional evidence. This conduct of the prosecuting agency should not be encouraged because the act of the Investigating Officer or the public prosecutor does not fall under the provisions of Section 173(5X8) of Cr.P.C.
5. Per contra, the learned Counsel for the respondent - State strenuously contends that though there may be some procedural irregularities, Section 173(5) of Cr.P.C. may not contemplate the production of those documents which are not the subject-matter of the case. Nevertheless, these documents can be made use of for the purpose of proving the case of the prosecution u/S. 173(8) of Cr.P.C. Further, he contended that the documents Ex. P25, P47 and P54 were the documents secured during the course of investigation and those documents were sent to the Civil Court and during the course of civil proceedings, these documents were contested. To ascertain the veracity, the Court referred the documents to the hand-writing expert. Therefore, it amounts the documents originally available to the prosecution and thereafter, those documents are subjected to the examination by the hand-writing expert in the Civil suit. Therefore, whether the handwriting expert has examined those documents during the course of investigation or subsequently, it makes no difference. They can be produced before the Criminal Court for the purpose of proving the case against the accused. Therefore, the court has got ample powers under the above said provisions read with Section 311 of Cr.P.C. in order to give justice, can summon any documents, can examine any witness at any time before pronouncing the judgment. Therefore, he contended that the present petition is devoid of merit and the order passed by the learned Special Judge has to be up held.
6. The trial Court in fact in order to come to the conclusion that the petition has to be allowed, relied upon the provision u/S. 311 of Cr.P.C. and also a decision reported in
7. Apart from the observations made by the learned Counsel in the above said decision, this Court has to see whether on facts and on perusal of Section 173(5) or (8) of Cr.P.C., whether the trial Court has committed any error in arriving at its conclusion that the application filed by the petitioner (prosecuting agency) deserves to be allowed.
8. In the above circumstances, it is just and necessary for this court to go through the materials available on record. The above said factual aspects in fact are not disputed. The contention that, Section 173(5) or 173(8) of Cr.P.C. are not applicable and those documents cannot be treated as documents secured by the Investigation Officer during the course of investigating or during the subsequent investigation so as to file additional charge-sheet before the Court. For this, it is just and necessary to look into the above said provisions which reads as under:
"Section 173(5) of Cr.P.C: 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."
Section 173(8) of Cr.P.C. reads as under:
"(8) 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 me 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)."
So far as clauses (a) and (b) of S. 173(5) of Cr.P.C. are concerned, learned Counsel successfully convinced me that those documents particularly handwriting expert''s report neither collected during the course of investigation nor collected subsequent to the filing of the charge-sheet. Actually, it was secured by the Civil Court and not by the Investigating Officer. It is admitted that the documents such as handwriting expert''s report has neither collected earlier nor collected during the course of investigation. It was secured by the Investigation Officer subsequent to the filing of the charge-sheet.
9. Sub-Section (8) of section 173 of Cr.P.C. deals with further investigation by the Investigating Officer. He can investigate the case even after filing of the charge-sheet and he can submit subsequent report by forwarding the same to the Magistrate. The Officer in charge of the Police Station who 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). This provision of course empowers the investigating officer to collect any material pertaining to the case subsequent to the filing of the charge-sheet and produce the same with a report that he secured them after filing of the charge-sheet which should be accompanied by the report to the jurisdictional Magistrate i.e. to the Special Judge so far as this case is concerned.
10. The learned Counsel for the petitioner vehemently argued that no report is submitted by the Investigation Officer along with the handwriting experts'' report. As rightly contended, the Investigating Officer has not filed any report as such there is a procedural irregularity but the documents i.e. the report is now before the Court. In my opinion, the irregularity in procedure in bringing the report to the knowledge of the Court will not in any way deprive the court to exercise its powers to look into that document for proper adjudication of the case. Therefore, the court has to see apart from the provisions u/s 173(5) and (8) of Cr.P.C. whether for the purpose of proper adjudication of the rights of the parties, the court can suo motu entertain those documents and consider whether the documents are necessary for proper adjudication of the case. These facts have also to be looked into, considering that the Investigating Officer has not secured any documents or reports under sections 173(5) and 175(8) of Cr.P.C. itself. In the circumstances, if it is brought to the notice of the court that some of the documents are absolutely necessary for proper adjudication of the rights of the parties. Even, it will not debar the court from exercising Sec. 311 of Cr.P.C. to secure any document or any evidence for the purpose of administering proper and real justice in the given case.
11. It is in this background, the learned Counsel for the respondent has drawn my attention to the hall mark decision of the Hon''ble Supreme Court in the case of Rajaram Prasad Yadav v. State of Bihar and another in SLP (CRI) No. 2400 of 2011. The Hon''ble Supreme Court in fact has set down some guidelines explaining the powers of the Court u/S. 311 of Cr.P.C. at paragraph 23, which is extracted hereunder:
"23. From a conspectus consideration of the above decisions, while dealing with an application u/s 311 Cr.P.C. read with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
(a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in u/s 311 is noted by the Court for a just decision of a case?
(b) The exercise of the widest discretionary power u/s 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
(c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexamine any such person.
(d) The exercise of power u/s 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
(e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
(f) The wide discretionary power should be exercised judiciously and not arbitrarily.
(g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
(h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
(i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
(j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
(k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
(l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
(m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
(n) The power u/s 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
12. Learned Counsel for the petitioner strenuously contend that when the Investigating Officer has not secured hand-writing experts report (produced before the civil Court) in order to produce the same before the special court and it was secured through PP, those documents are attempted to be produced before the court, in order to fill up the investigation lapses, if such documents are ordered to be produced and evidence is allowed to be led, it would definitely prejudice the case of the accused. Therefore, when the rights of the accused are prejudiced, then such document should not be allowed to be marked or relied upon by prosecution.
13. In the above decision, in fact these aspects are also meticulously considered by the Hon''ble Supreme Court particularly at item No. (d), the Supreme Court has guided the courts stating that Section 311 should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. At item No. (e), it is further stated that exercise of such power cannot be dubbed as filling in lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. It is further stated in item No. (h) that the object of section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. If the court is of the opinion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. Therefore, the court should be more conscious of the position that after all the trial is basically based on principles of natural justice, the Courts should afford opportunity to both parties in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the party getting an opportunity rather than protecting the other party against possible prejudice at the cost of the denial of the opportunity. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
14. In another important ruling of the Hon''ble Supreme Court reported in
"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 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 u/s 173(4) of the Cr.P.C., 1898 was considered by this Court in
(Emphasis supplied)
15. Yet another ruling of the Supreme Court, in my opinion, deserves to be referred to. In a decision reported in
The Apex Court has observed that-
"When defective investigation comes to light during the course of trial, it may be cured by further investigation of the circumstances so permitted. It would ordinarily be desirable that police should inform the court and seek formal permission to make further investigation. When fresh facts come to light instead of being silent over the matter, keeping in view, only the need for an early trial since as an effective trial for real and actual offences formed during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts."
16. On meaningful understanding of the above said decisions, it is clear that sub-section (8) of Section 173 of Cr.P.C. empowers the prosecution to produce the document as additional documents during the course of trial, even after filing of the charge-sheet is filed. In such cases, the court has to take care that no prejudice is caused to the accused in producing those documents or marking of those documents. If any procedural irregularity occurred the court can ignore the same in order to advance justice if it does not adversely affect or prejudice the adversary.
17. Now, coming to the point as to what prejudice that is going to be caused to the accused, the learned Counsel has not brought to my notice as to what is the nature of prejudice that is going to be caused to the accused in this case. Nowhere in the petition it is explained how would the production of the hand writing experts report and examination of the expert prejudice the accused. In this backdrop, the court has to first understand as to what is the meaning of ''prejudice'' and how the principles of prejudice are to be applied. The question is whether any error in the prosecution case has caused prejudice to the accused or post charge-sheet evidence or documents occasioned a failure of justice.
Dictionary meaning ''Prejudice defined as-
"a harm or injury that results or may result from some action or judgment resulting in causing or infringing any valuable right of either of the parties to the proceedings."
18. In this particular case, the key to the problem lies in the fact that, words whether by means of allowing such an application, the trial Court has committed any illegality or incurable irregularity or whether injustice is occasioned in producing the report of the handwriting expert or it is only a procedural irregularity. Justice must be administered fairly and it is the fundamental principle of the Criminal Jurisprudence. If any act of the prosecution causes serious illegality or incurable irregularity in turn amounts to prejudice, such prejudice if considered should go to the root of the case of the accused or to the case of the prosecution. Therefore, in the absence of any substantial injustice and in the complete absence of anything that outrages the right of any party by taking out, what is due under principles of natural justice in criminal cases, then it cannot be said any prejudice is caused. If the Court adheres to the principles of natural justice and if it is completely observed, then it will not amount to violation of any rights of the accused or it will not amount to any prejudice to the rights of the accused person. If after adhering to the principles of natural justice also if the court is of the opinion such an illegality or irregularity cannot be cured then such an act of the prosecution would amount to prejudicial to the rights of the accused. In this manner, the court has to see whether there is any prejudice that is caused to the petitioner.
19. In my opinion, no prejudice is caused to the accused though some procedural irregularity is there while producing the documents u/S. 173(5) & (8) of Cr.P.C. Though the documents sought to be produced, evidence sought to be adduced not in a straight jacket manner produced u/S. 173(5) & (8) of Cr.P.C. nevertheless, while exercising power u/S. 311 of Cr.P.C. irrespective of the irregular procedure followed by the Investigation Officer if the court is of the opinion that those documents are necessary for proper adjudication of the rights of the parties, then exercising the powers u/S. 311 of Cr.P.C. itself, empowers the court to pass appropriate order depending on the facts and circumstances of that particular case even such additional evidence has not been brought on record though by irregular procedure.
20. The accused person has not stated that these documents which are marked as Ex. P25, P47 and P54 were not at all produced by the Investigating Officer during the course of trial. These are the three important documents which have to play a dominant role in the proceedings. Of course, there may be serious lapses on the part of the Investigating Officer in not sending these documents to the Handwriting expert for the purpose of getting the report during the course of investigation. But, the parties who are contesting the criminal case, are also the rival parties in the civil case, i.e. to say the complainant in this case has exercised the right, invoked the jurisdiction of the civil court and got the documents referred to the handwriting expert and got the report. Therefore, if no opportunity is given to the prosecution, it would curtail the valuable rights of the complainant in establishing his case before the Criminal Court. If it is so, it would definitely amount to violation of natural justice so far as complaint is concerned.
21. Administration of justice requires strictly adhering to the principles of natural justice, by way of providing fullest opportunity to both parties to the proceedings. Therefore, fair trial in fact is the main object of procedural laws and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. It should be borne in mind that fair trial entails not only the interest of the accused, the victim but the society also therefore, fair trial includes the grant of fair and proper opportunities to the persons concerned with reference to the societal impact and the same must be ensured as this is a constitutional, as well as a human right. Thus, Court should see under no circumstances, a party''s right to fair trial is jeopardized. Adducing evidence in support of their case by either of the parties is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure have been designed to ensure justice is to be scrupulously administered and the courts must be zealous in guarding the same and that there is no breach of the same. In the above said circumstances, I am of the opinion that in order to provide an opportunity to the prosecution, the application has been allowed, and I find no fault with the said order in this regard.
22. The learned Counsel for the petitioner also brought to my notice that during the course of evidence, he has elicited from the mouth of the Investigation Officer some admissions. If this particular document is allowed to be produced and marked in the evidence, it will take away such admissions. In my opinion, it can''t be taken away because once on facts any admission is given, it remains as an admission throughout. Admittedly, the report of the hand-writing expert is secured subsequent to the filing of the charge sheet and being filed before the court. The Investigating Officer has admitted that he never sent the disputed documents to the Handwriting expert for opinion, this lapse on the part of the investigation is an error remains as it is and has to be considered by the trial Court at the time of appreciating the evidence on record. It also to be worth remembering that if the lapse or omission is committed by the investigating agency or because of negligence, the prosecution evidence is required to be examined dehors such omissions, to find out whether the said evidence is reliable or not. The court has to adopt an active and analytical role. The Contaminated conduct if any of officials should not stand in the way of courts getting at the truth by having recourse to sections 173, 311, 391 Cr.P.C. and section 165 of the Evidence Act, 1872.
23. The learned Counsel for the petitioner also expressed his anxiety so far as the handwriting expert''s report is concerned, he argued that if the said document is allowed to be produced by the prosecution and evidence is led, it would prejudice the accused. The apprehension of the counsel is also not legally tenable; it is well founded principle of law that expert''s evidence is only an opinion evidence apart from relying on the experts'' evidence the court has to come to its own independent conclusion on the appreciation of all other relevant evidence or record. The Court has got ample power to reject the report and evidence of an expert if it otherwise comes to the conclusion on the basis of other materials on record, or the report of hand-writing expert is proved to be not trustworthy for acceptance. While analysing the material on record, the Court has to consider how these documents have been secured by the prosecution and how it was produced before the Court. Whether such documents could be relied upon by the Court or not. Further, added to that, if the document is produced before the Court and expert is examined before the Court, sufficient and ample opportunity would be there to the accused to challenge that evidence. Therefore, when fair trial is afforded to the complainant and to the accused, there can''t be any in order to demolish the subsequent events taken place and the documents produced before the court by the prosecution. Therefore, in my opinion, when the valuable rights of the complainant and the accused are safeguarded by trial Court by providing opportunity to both parties, it becomes premature to consider whether the documents are going to be proved or on the basis of such evidence, the accused is going to be acquitted or convicted. That should not be the motto or reason to allow the application. But, as a matter of affording opportunity to both the parties and in order to up held the rights of the parties and in order to uphold the principles of natural justice, application deserves to be allowed. Therefore, I do not find any strong reason to interfere with the order passed by the trial Court.
24-A. Therefore, I proceed to pass the following order:
The petition filed u/S. 432 Cr.P.C. is hereby dismissed. The learned Counsel for the petitioner submits that he wants to prefer an SLP against the order of this Court and prays for extension of stay order granted by this Court. Hence, the stay order granted by this court is extended for a period of two months.
