STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATION versus M. SUBRAHMANYAM on 7 May 2019

STATE REPRESENTED BY INSPECTOR OF POLICE CENTRALBUREAU OF INVESTIGATION

v.

M. SUBRAHMANYAM

(Criminal Appeal No. 853 of 2019)

MAY 7, 2019

[ARUN MISHRA AND NAVIN SINHA, JJ.]

Code of Criminal Procedure, 1973:

s. 482 – Case under Prevention of Corruption Act –Application u/s. 242 Cr.P.C to bring on record authorisation ofinvestigation, filed after three years of filing of charge-sheet –Dismissed on the ground that no explanation furnished for not filingthe same alongwith the charge-sheet – After five years of dismissalof the application, another application u/s. 173 (2)(5)(a) Cr.P.Cfiled for bringing the authorisation on record – Dismissed on theground of res judicata – Petition u/s 482 seeking to bring theauthorisation on record, dismissed by High Court – On appeal,held: Substantive justice must always prevail over procedural ortechnical justice – Procedural lapse cannot be placed at par withwhat is or may be substantive violation of law – The failure to bringthe authorisation on record was a procedural lapse – Theconsequences of disallowing the procedural lapse was substantivein nature – The High Court in exercise of inherent jurisdiction, inthe interest of justice and to prevent abuse of process of law, oughtto have allowed bringing of authorisation order on record –Prosecution is permitted to bring the authorisation order forinvestigation on record – However, in the facts of the case, possibilityof deliberate omission to bring on record authorisation order, tofavour the accused, cannot be ruled out – CBI directed to holdinquiry to determine the reason for delay in approaching the court.

Allowing the appeal with directions, the Court HELD: 1. The truth and veracity of the authorisation ordernot being in issue, the failure to file it along with the charge-sheet was an omission constituting a procedural lapse only. Therejection of the first application on 11.03.2008 not having beenordered on merits, but for failure to furnish a satisfactory

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Aexplanation for the delay, Section 362 Cr.P.C has no relevanceon facts. Therefore, there was no impediment in the appellantseeking to bring the same on record subsequently under Section173(2)(5)(a) of Cr.P.C. The consequences of disallowing theprocedural lapse were substantive in nature. [Para 7] [291-D-F]

B1.2 The failure to bring the authorisation on record, asobserved, was more a matter of procedure, which is but ahandmaid of justice. Substantive justice must always prevail overprocedural or technical justice. To hold that failure to explaindelay in a procedural matter would operate as res judicata will bea travesty of justice considering that the present is a matterCrelating to corruption in public life by holder of a public post.The rights of an accused are undoubtedly important, but so is therule of law and societal interest in ensuring that an alleged offenderbe 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 makeDthe rule of law and societal interest in prevention of crime,subservient to the same cannot be considered as dispensation ofjustice. A balance therefore has to be struck. A procedural lapsecannot be placed at par with what is or may be substantive violationof the law. [Para 9] [292-A-C]

E1.3 The High Court was exercising inherent jurisdiction inthe interest of justice and to prevent the abuse of the process oflaw. In the facts and circumstances of the case, the High Courtought to have exercised its inherent powers to allow the bringingof the authorisation order on record rather than to have adopteda narrow and pedantic approach to its own jurisdiction given theFprovisions of Section 173(2)(5)(a) Cr.P.C. Therefore, theprosecution is permitted to bring the order of authorisation forinvestigation on record. [Paras 11 and 12] [292-F-G]

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Bihar State Electricity Board v. Bhowra KankaneeCollieries Ltd., 1984 Supp SCC 597 ; Sakshi v. UnionGof India (2004) 5 SCC 518 : [2004] 2 Suppl. SCR 723– relied on.

Central Bureau of Investigation v. R.S. Pai and another,(2002) 5 SCC 82 : [2002] 2 SCR 889 – referred to.

2. The charge-sheet was submitted on 05.04.2005. Noexplanation has been furnished as to why the prosecutionexhibited such laxity in seeking to bring the authorisation orderon record nearly three years later on 07.01.2008. If that werenot enough, after rejection of the same on 11.03.2008, theprosecution again remained silent till it filed the fresh applicationunder Section 173(2)(5)(a) as late as on 21.06.2013, with noexplanation furnished for the same. Considering the matter fromthe administrative perspective, a lapse on the first occasion maybe an inadvertent error but the repeat of the same lapse raisesserious doubts and issues whether it was inadvertent ordeliberate. The present was a case relating to corruption in publiclife by a public servant owing allegiance to the Constitution. Thepossibility, in the facts of the present case, cannot be entirelyruled out of a deliberate omission, to favour the accused.Therefore it is directed that a senior officer of the Central Bureauof Investigation, shall hold an inquiry and determine thecircumstances under which the initial lapse took place, and thereason for delay in approaching the court. The inquiry shall alsoencompass the passage of nearly 5 years after rejection of thesame, and the belated attempt in 2013 only. Responsibility mustbe fixed in the report and adequate disciplinary action be initiatedand concluded against the concerned persons in accordance withlaw. [Paras 13 and 14] [293-F-H; 294-A-D]

Case Law Reference

[2002] 2 SCR 8891984 Supp SCC 597[2004] 2 Suppl. SCR 723

referred torelied onrelied on

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CRIMINAL APPELLATE JURISDICTION : Ciminal Appeal No.853 of 2019.

From the Judgment and Order dated 06.08.2018 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh in Criminal Petition No. 7904 of 2013.

Vikramjit Banerjee, ASG, Ms. Praveena Gautam, Ms. SeemaBengani, Anas Zaidi, Arvind Kumar Sharma, Advs. for the Appellant.

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AP. S. Narasimha, Sr. Adv., M. Srinivas R. Rao, Sarath S. Janaradan,K. Narsimbha Murthy, Rahul T., V. C. Shukla, Sundoora VNL., Abid AliBeeran P, Advs. for the Respondent.

The Judgment of the Court was delivered by NAVIN SINHA, J. 1. Leave granted.B

2. The Inspector of Police, Central Bureau of Investigation,Vishakhapatnam, is aggrieved by order dated 06.08.2018 of the HighCourt, dismissing the application under Section 482, Cr.P.C. by theprosecution to bring on record the order passed by the Superintendent ofPolice, CBI, Visakhapatnam, under Section 17 of the Prevention ofCCorruption Act, 1988 (hereinafter referred to as ‘the Act’), authorisingSri V.K.C. Reddy, the then Deputy Superintendent of Police, CBI,Visakhapatnam, to investigate against the respondent, an Income TaxOfficer, Visakhapatnam, pursuant to an F.I.R. lodged under Sections13(2) read with 13(1)(c) of the Act on allegation for possessing moveableDand immoveable properties disproportionate to the known sources ofincome.

3. Learned counsel for the appellant submits that the order ofauthorisation for investigation could not be filed along with the charge-sheet due to inadvertence. It was subsequently sought to be filed underESection 242 Cr.P.C. by Crl.M.P. No.26 of 2008 much prior to thecommencement of the trial. The application was not rejected on meritsbut on the ground that no satisfactory explanation had been furnishedfor the delay in submission. Crl.M.P. No.560 of 2013 was then filedafresh under Section 173(2)(5)(a), Cr.P.C. to bring the authorisation onrecord. It was erroneously dismissed applying the principles of res judicataFeven though there had been no adjudication on merits earlier. The truthand veracity of the authorisation was not in dispute. The interest ofjustice therefore required that the authorisation should have been allowedto be brought on record. The issue pertained only to a matter of procedure.Section 362 Cr.P.C. was wrongly relied upon by the trail judge. RelianceGwas placed on Central Bureau of Investigation vs. R.S. Pai andanother, (2002) 5 SCC 82.

4. Learned counsel for the respondent contended that the earlierapplication under Section 242 Cr.P.C. having been dismissed,appropriately a revision or appeal ought to have been preferred. Theorder of rejection having attained finality no fresh application for theH

same purpose could have been filed quoting another provision of theCode. Serious prejudice shall be caused to the respondent, affecting thecourse of justice if it were to be permitted at this stage.

5. We have considered the submissions on behalf of the partiesand opine that the appeal deserves to be allowed for reasons enumeratedhereinafter.

6. FIR No.RC 35(A)/2002-CBI/ACB/VSP (CC-03 of 2005) wasregistered against the respondent on 01.11.2002 under the Act. Charge-sheet was filed on 05.04.2005. On 07.01.2008, an application was filedon behalf of the prosecution under Section 242 Cr.P.C. to bring on recordthe authorisation for investigation issued to Shri V.K. Reddy. On11.03.2008 it was dismissed on the ground that no proper explanationhad been furnished for not filing the same along with the charge-sheet.Subsequently, on 21.06.2013, the authorisation was again sought to bebrought on record by the prosecution invoking Section 173(2)(5)(a) ofthe Code giving rise to the impugned orders.

7. The truth and veracity of the authorisation order not being inissue, the failure to file it along with the charge-sheet was an omissionconstituting a procedural lapse only. The rejection of the first applicationon 11.03.2008 not having been ordered on merits, but for failure to furnisha satisfactory explanation for the delay, Section 362 Cr.P.C has norelevance on facts. We are, therefore, of the opinion that there was noimpediment in the appellant seeking to bring the same on recordsubsequently under Section 173(2)(5)(a) of the Code. The consequencesof disallowing the procedural lapse were substantive in nature.

8. In Bihar State Electricity Board vs. Bhowra KankaneeCollieries Ltd., 1984 Supp SCC 597, the Court opined:

“6. Undoubtedly, there is some negligence but when a substantivematter is dismissed on the ground of failure to comply withprocedural directions, there is always some element of negligenceinvolved in it because a vigilant litigant would not miss complyingwith procedural direction….. The question is whether the degreeof negligence is so high as to bang the door of court to a suitorseeking justice. In other words, should an investigation of factsfor rendering justice be peremptorily thwarted by some procedurallacuna?”

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A9. 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 technicaljustice. To hold that failure to explain delay in a procedural matter wouldoperate as res judicata will be a travesty of justice considering that thepresent is a matter relating to corruption in public life by holder of aBpublic post. The rights of an accused are undoubtedly important, but sois the rule of law and societal interest in ensuring that an alleged offenderbe subjected to the laws of the land in the larger public interest. To putthe rights of an accused at a higher pedestal and to make the rule of lawand societal interest in prevention of crime, subservient to the sameCcannot be considered as dispensation of justice. A balance thereforehas to be struck. A procedural lapse cannot be placed at par with whatis or may be substantive violation of the law.

10. In Sakshi vs. Union of India, (2004) 5 SCC 518, the Courtobserved:

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“31.…. There is major difference between substantive provisionsdefining crimes and providing punishment for the same andprocedural enactment laying down the procedure of trial of suchoffences. Rules of procedure are handmaiden of justice and aremeant to advance and not to obstruct the cause of justice. It is,Etherefore, permissible for the court to expand or enlarge themeanings of such provisions in order to elicit the truth and dojustice with the parties.”

11. The High Court was exercising inherent jurisdiction in theinterest of justice and to prevent the abuse of the process of law. In theFfacts and circumstances of the case, the High Court ought to haveexercised its inherent powers to allow the bringing of the authorisationorder on record rather than to have adopted a narrow and pedanticapproach to its own jurisdiction given the provisions of Section173(2)(5)(a), Cr.P.C., as observed in R.S. Pai (supra):G“7. From the aforesaid sub-sections, it is apparent that normally,the investigating officer is required to produce all the relevantdocuments at the time of submitting the charge-sheet. At the sametime, as there is no specific prohibition, it cannot be held that theadditional documents cannot be produced subsequently. If somemistake is committed in not producing the relevant documents atH

the time of submitting the report or the charge-sheet, it is alwaysopen to the investigating officer to produce the same with thepermission of the court. In our view, considering the preliminarystage of prosecution and the context in which the police officer isrequired to forward to the Magistrate all the documents or therelevant extracts thereof on which the prosecution proposes torely, the word “shall” used in sub-section (5) cannot be interpretedas mandatory, but as directory. Normally, the documents gatheredduring the investigation upon which the prosecution wants to relyare required to be forwarded to the Magistrate, but if there issome omission, it would not mean that the remaining documentscannot be produced subsequently. Analogous provision underSection 173(4) of the Code of Criminal Procedure, 1898 wasconsidered by this Court in Narayan Rao v. State of A.P. and itwas held that the word “shall” occurring in sub-section (4) ofSection 173 and sub-section (3) of Section 207-A is not mandatorybut only directory. Further, the scheme of sub-section (8) of Section173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is notprecluded. If further investigation is not precluded then there isno question of not permitting the prosecution to produce additionaldocuments which were gathered prior to or subsequent to theinvestigation. In such cases, there cannot be any prejudice to theaccused. Hence, the impugned order passed by the Special Courtcannot be sustained.”

12. The appeal will, therefore, have to be allowed and theprosecution is permitted to bring the order of authorisation for investigationon 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 furnishedas to why the prosecution exhibited such laxity in seeking to bring theauthorisation order on record nearly three years later on 07.01.2008. Ifthat were not enough, after rejection of the same on 11.03.2008, theprosecution again remained silent till it filed the fresh application underSection 173(2)(5)(a) as late as on 21.06.2013, with no explanationfurnished for the same. We have no hesitation in observing thatconsidering the matter from the administrative perspective, a lapse onthe first occasion may be an inadvertent error but the repeat of the same AB

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Alapse raises serious doubts and issues whether it was inadvertent ordeliberate. The present was a case relating to corruption in public lifeby a public servant owing allegiance to the Constitution. The charge-sheet was filed in 2005. The trial has successfully been thwarted at avery nascent stage for long years. The possibility, in the facts of thepresent case, cannot be entirely ruled out of a deliberate omission, toBfavour an accused.

14. We therefore direct that a senior officer of the Central Bureauof Investigation, Visakhapatnam shall hold an inquiry and determine thecircumstances under which the initial lapse took place, and the reasonfor delay in approaching the court. The inquiry shall also encompass theCpassage of nearly 5 years after rejection of the same, and the belatedattempt in 2013 only. Responsibility must be fixed in the report andadequate disciplinary action be initiated and concluded against theconcerned persons in accordance with law. Compliance report shall befiled before this Court along with conclusions of the inquiry and actionDtaken, within a period of three months from today.

Kalpana K. Tripathy

Appeal allowed with directions.

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