1. Heard Sri Nandit Srivastava, learned counsel for the petitioners and Sri Bireshwar Nath, learned counsel for the Central Bureau of Investigation as well as perused the documents available on record.
2. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the accused-petitioners for setting aside the impugned order dated 20.10.2004 passed by the learned Special Judge, Ayurved Scam Matters, Lucknow in Criminal Case No. 11 of 1999 (State Vs. K.C. Bhasin & another), under Sections 120-B and 420 IPC, P.S. CBI, Lucknow whereby the learned Special Judge has disposed of the application B-152 moved by the petitioners with the observation that the copies of relevant documents as required under Section 207 of the Code has already been furnished to the accused, therefore, there is no need to furnish any paper to the petitioners any more.
3. The relevant facts giving rise to the present petition in nutshell are as under:-
Pursuant to the order passed by the High Court, Sri Yash Vardhan Sinha, the then Dy. Secretary, Medical Education, Govt. of U.P., Lucknow lodged a written report at Police Station Hazratganj on 3rd November, 1995 relating to the famous Ayurveda Scam matter involving misappropriation of Rs. 3, 55, 64, 000/- (Rupees three crore fifty five lakh sixty four thousand) allotted to the Director of Ayurveda and Unani Services as well as Regional Ayurveda and Unani Services. On the written report of Sri Sinha, the police of Police Station Hazratganj registered a case against Dr. Shiv Raj Singh, Dy. Secretary, Ayurvedic and Unani Services, 32, Sarojini Naidu Marg, Lucknow, under Sections 409, 418, 420, 467, 468, 471, 120-B IPC and 7/13 Prevention of Corruption Act, 1988 for investigation. Initially, the case was being investigated by the Civil Police but later on the investigation was entrusted to the CBI. The Investigating Officer of CBI submitted first charge-sheet against some of the accused on 25.2.2007 but later on the Investigating Officer submitted supplementary charge-sheet (Annexure No. 3) against the accused-petitioners in the Court of learned Special Judge, Ayurved Scam Matters, Lucknow who on the basis of charge-sheet submitted by the Investigating Officer took cognizance of the offence and summoned the accused. During pendency of the case, the accused moved an application B-152 for directing the CBI to furnish the copies of relevant documents as contemplated under Section 207 of the Code. The CBI opposed the application by filing objection B-155. The objection of the CBI was that the copies of necessary documents on which the prosecution was relying upon had already been furnished to the accused as per requirement of Section 207 of the Code. The learned Special Judge, after hearing the learned counsel for the parties, found that the prosecution had already furnished the copies of all the documents to the accused on which it was relying upon and to be adduced in evidence during the trial, therefore, the CBI could not be directed to furnish copies of all those documents which were not to be tendered in evidence during the trial by the prosecution. The learned Special Judge accordingly disposed of the application filed by the accused and objection filed by the CBI by the impugned order which has given rise to the present petition.
4. The submission of the learned counsel for the petitioners is that in this case admittedly the first charge-sheet had been submitted by the Investigating Officer on 25.2.2007 thereafter supplementary charge-sheets were submitted by the Investigating Officer against other accused. The impugned supplementary charge-sheet has been submitted by the Investigating Officer against the accused. Although the learned Special Judge has taken separate cognizance on every charge-sheet submitted by the Investigating Officer while the matter relates to the same scam but the supplementary charge-sheet filed by the Investigating Officer against the accused-petitioners will not be treated as separate charge-sheet; rather it will be treated as part of the original charge-sheet in view of the provisions under Section 173 (2) of the Code. The Investigation against the accused-petitioners is in continuance of the initial investigation, therefore, the accused in view of the provisions under Section 207 of the Code is entitled for copies of the statements of all the witnesses and the documents filed by the Investigating Officer along with every charge-sheet. Admittedly, in this case the copy of the statements of entire prosecution witnesses and the documents filed by the Investigating Officer in each case has not been furnished to the accused, therefore, the requirement of Section 207 of the Code has not been complied with. The learned Special Judge did not consider this fact while passing the impugned order. The impugned order is, therefore, bad in the eye of law and the same is liable to be quashed and the application filed by the accused-petitioners deserves to be allowed.
5. The learned counsel for the petitioners in support of his argument has placed reliance upon cases State of U.P. Vs. Kapil Deo Shukla reported in 1972 CRI L. J. 1214 (V 78 C 317) and State of Uttar Pradesh Vs. Lakshmi Brahman and Another reported in 1983 Supreme Court Cases (Cri) 489 decided by Hon'ble Apex Court, M/s Viniyoga International, New Delhi and another Vs. The State reported in 1985 CRI, L. J. 761 decided by Division Bench of Delhi High Court and Shyam Lal Vs. State of U.P. reported in [2004 (50) ACC 700] decided by this Court.
6. The learned counsel for the CBI opposed the petition and argued that the impugned charge-sheet filed by the CBI has a list of witnesses to be examined by the prosecution and a list of documents which are to be tendered in evidence against the accused at the trial. The prosecution has furnished the copies of statements of all the witnesses mentioned in the list and copies of all the documents mentioned in the two lists attached with the impugned charge-sheet except the documents at Serial No. D-58 and D-89. As regards documents referred at Serial No. D-58, 12 bills of Acid Lab are referred. Out of 12 bills the copies of 5 bills have already been furnished to the accused, the rest bills could not be located. As regards documents referred at Serial No. D-89 of the list, it has been specifically stated in para 5 of the counter affidavit that the same is not readily available. Except 7 bills and the documents referred in D-89 have already been furnished by CBI to the accused whenever these documents will be available to the CBI, and will be tendered in evidence against the accused, the copies of the all these documents will be furnished to the accused before they are tendered in evidence.
7. The learned counsel submits that not only the copies of statements of witnesses and the documents mentioned in two separate lists annexed with the impugned charge-sheet have been furnished to the accused; rather the statement of 55 witnesses and copies of 15 documents relating to earlier charge-sheets have also been furnished to the accused. In this way, the CBI in compliance of the provisions under Section 207 of the Code has furnished the copies of statements of witnesses and documents to the accused. The learned Special Judge has rightly disposed of the application moved by the petitioners by the impugned order which does not suffer from any illegality or impropriety as such it does not call for any interference.
8. I have given active consideration to the submissions advanced by the learned counsel for the petitioners and the learned counsel for the Central Bureau of Investigation.
9. At this stage, it will be relevant to refer the provision contained under Section 207 of the Code which provides for supplying the copies of the police report and other documents to the accused mentioned therein. Section 207 of the reads as under:
"Section 207 of the Code: - Supply to the accused of copy of police report and other documents:
In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.
(i) The police report;
(ii) The first information report recorded under section 154:
(iii) The statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from 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.
(iv) The confessions and statements, if any, recorded under section 164;
(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is Voluminous, he shall, instead of furnishing the accused with a copy thereof', direct that he will only be allowed to inspect it either personally or through pleader in court."
10. Section 173 of the Code lays down the provision for filing the police report by the Investigating Officer after completion of the investigation of the case which is being extracted below:
"Section 173 of the Code: - Report of police officer on completion of investigation:
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) 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;
(b) The nature of the information;
(c) The names of the persons who appear to be acquainted with the circumstances of the case;
(d) Whether any offence appears to have been committed and, if so, by whom;
(e) Whether the accused has been arrested;
(f) Whether he has been released on his bond and, if so, whether with or without sureties;
(g) Whether he has been forwarded in custody under section 170.
(ii) 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 whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) 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 under section 161 of all the persons whom the prosecution proposes to examine as its witness.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the sub-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).
(8) Notwithstanding 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-section (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)."
11. In this case, the charge-sheet filed by the Investigating Officer satisfies the requirement of Section 173 (2) of the Code.
12. Section 207 (iii) of the Code provides that the copies of the statement of witnesses recorded by the Investigating Officer under Section 161 of the Code shall be furnished to the accused whom the prosecution proposes to examine at trial. In this case, the prosecution has furnished a of list of witnesses along with charge-sheet who are to be examined by the prosecution at the trial which is Annexure No. 5. Admittedly, the copies of the prosecution witnesses whom the prosecution wants to examine have already been furnished to the accused.
13. As regards, the documents, Section 207 (v) lays down the provision for providing the copies of documents to be furnished to the accused. In this case, the prosecution has submitted a list of documents (Annexure No. 4) which the prosecution wants to tender in evidence against the accused at the trial. Admittedly, the copies of all the documents referred in the list except some of the documents referred at Serial No. D-58 and D-89 have been furnished by the CBI to the accused.
14. As regards, documents referred at Serial No. D-58, it has been specifically stated in Para 5 of the counter affidavit filed by the CBI that out of 12 bills referred at Serial No. D-58, 5 bills are available, the copies of which have already been furnished to the accused, rest of bills could not be located.
15. As regards, documents referred at Serial No. D-89, it has been stated in the counter affidavit that the documents are not readily available. If these documents are not available to the prosecution at present, the prosecution cannot be compelled to furnish the copies of those documents. If, the prosecution tenders those documents in evidence at the trial, the copies of those documents will be furnished by the prosecution to the accused before they are tendered in evidence.
16. The learned Special Judge after hearing to the learned counsel for the parties and going though the materials available on record has disposed of the application B-152 and objection of CBI B-155 with the observation made therein. I am of the opinion that the prosecution in pith and substance has complied with the provisions as contemplated under Section 207 of the Code.
17. The impugned order in my opinion does not suffer from any illegality as such it does not call for any interference.
18. The petition is devoid of any merit and is liable to be dismissed.
19. Accordingly, the petition is dismissed.
Order Date :- 30.11.2010 Santosh/-