Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 548

SUPREME COURT OF INDIA
ARUN MISHRA, NAVIN SINHA, JJ.
STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATION – APPELLANT(S)
VERSUS
M. SUBRAHMANYAM – RESPONDENT(S)
Criminal Appeal No(s). 853 of 2019 (Arising Out of SLP(Crl.) No(s). 2133 of 2019)
Decided on : 07-05-2019

Advocates Appeared:
For the State :Mr. Arvind Kumar Sharma, Advocate
For the Respondent:Mr. M. Srinivas R. Rao, Advocate, Mr. Abid Ali Beeran P, Advocate and Mr. Sarath S. Janardanan, Advocate.

IMPORTANT POINTS
(1) lapse on first occasion may be an inadvertent error but repeat of same lapse raises serious doubts and issues whether it was inadvertent or deliberate.
(2) Substantive justice must always prevail over procedural or technical justice.
(3) Procedural lapse cannot be placed at par with what is or may be substantive violation of law.

Headnote:(A) Criminal Procedure Code, 1973 Sections 173(2) and 482 Prevention of Corruption Act, 1988 Sections 13(2) read with 13(1)(c) and Section 17 Possession of moveable and immoveable properties disproportionate to known sources of income Dismissal of application seeking to bring authorisation on record on ground of delay Truth and veracity of authorisation order not being in issue, failure to file it along with charge-sheet was an omission constituting a procedural lapse only Rejection of first application not having been ordered on merits, but for failure to furnish a satisfactory explanation for delay, Section 362 Cr.P.C has no relevance on facts There was no impediment in appellant seeking to bring the same on record subsequently under Section 173(2)(5)(a) of Code Consequences of disallowing procedural lapse were substantive in nature High Court was exercising inherent jurisdiction in interest of justice and to prevent abuse of process of law High Court ought to have exercised its inherent powers to allow bringing of authorisation order on record rather than to have adopted a narrow and pedantic approach to its own jurisdiction given provisions of Section 173(2)(5)(a), Cr.P.C. Considering the matter from administrative perspective, a lapse on first occasion may be an inadvertent error but repeat of same lapse raises serious doubts and issues whether it was inadvertent or deliberate Prosecution is permitted to bring order of authorisation for investigation on record A senior officer of Central Bureau of Investigation, Visakhapatnam shall hold inquiry and determine circumstances under which initial lapse took place and reason for delay in approaching court. (Paras 7, 11, 12, 13 and 14)
       (B) Administration of Justice Substantive Justice Substantive justice must always prevail over procedural or technical justice To hold that failure to explain delay in a procedural matter would operate as res judicata will be a travesty of justice considering that present is a matter relating to corruption in public life by holder of a public post Rights of accused are important, but so is rule of law and societal interest in ensuring that alleged offender be subjected to laws of land in larger public interest To put rights of an accused at a higher pedestal and to make rule of law and societal interest in prevention of crime, subservient to same cannot be considered as dispensation of justice Balance has to be struck Procedural lapse cannot be placed at par with what is or may be substantive violation of law. (Para 9)
       Facts of Case:
       Inspector of Police, Central Bureau of Investigation, Vishakhapatnam, is aggrieved by order dated 06.08.2018 of High Court, dismissing application under Section 482, Cr.P.C. by prosecution to bring on record order passed by Superintendent of Police, CBI, Visakhapatnam, under Section 17 of Prevention of Corruption Act, 1988 authorising then Deputy Superintendent of Police, CBI, Visakhapatnam, to investigate against respondent, an Income Tax Officer, Visakhapatnam, pursuant to an F.I.R. lodged under Sections 13(2) read with 13(1)(c) of the Act on allegation for possessing moveable and immoveable properties disproportionate to known sources of income.
       Findings of Court:
       Considering the matter from administrative perspective, lapse on first occasion may be an inadvertent error but repeat of same lapse raises serious doubts and issues whether it was inadvertent or deliberate. Present was a case relating to corruption in public life by a public servant owing allegiance to Constitution.
       Result : Appeal allowed.

JUDGMENT

Navin Sinha, J.

Leave granted.

2. The Inspector of Police, Central Bureau of Investigation, Vishakhapatnam, is aggrieved by order dated 06.08.2018 of the High Court, dismissing the application under Section 482, Cr.P.C. by the prosecution to bring on record the order passed by the Superintendent of Police, CBI, Visakhapatnam, under Section 17 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act'), authorising Sri V.K.C. Reddy, the then Deputy Superintendent of Police, CBI, Visakhapatnam, to investigate against the respondent, an Income Tax Officer, Visakhapatnam, pursuant to an F.I.R. lodged under Sections 13(2) read with 13(1)(c) of the Act on allegation for possessing moveable and immoveable properties disproportionate to the known sources of income.

3. Learned counsel for the appellant submits that the order of authorisation for investigation could not be filed along with the charge-sheet due to inadvertence. It was subsequently sought to be filed under Section 242 Cr.P.C. by Crl.M.P. No.26 of 2008 much prior to the commencement of the trial. The application was not rejected on merits but on the ground that no satisfactory explanation had been furnished for the delay in submission. Crl.M.P. No. 560 of 2013 was then filed afresh under Section 173(2) (5)(a), Cr.P.C. to bring the authorisation on record. It was erroneously dismissed applying the principles of res judicata even though there had been no adjudication on merits earlier. The truth and veracity of the authorisation was not in dispute. The interest of justice therefore required that the authorisation should have been allowed to 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. Reliance was placed on Central Bureau of Investigation vs. R.S. Pai and another, (2002) 5 SCC 82.

4. Learned counsel for the respondent contended that the earlier application under Section 242 Cr.P.C. having been dismissed, appropriately a revision or appeal ought to have been preferred. The order of rejection having attained finality no fresh application for the same purpose could have been filed quoting another provision of the Code. Serious prejudice shall be caused to the respondent, affecting the course of justice if it were to be permitted at this stage.

5. We have considered the submissions on behalf of the parties and opine that the appeal deserves to be allowed for reasons enumerated hereinafter.

6. FIR No. RC 35(A)/2002-CBI/ACB/VSP (CC-03 of 2005) was registered 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 filed on behalf of the prosecution under Section 242 Cr.P.C. to bring on record the authorisation for investigation issued to Shri V.K. Reddy. On 11.03.2008 it was dismissed on the ground that no proper explanation had been furnished for not filing the same along with the charge-sheet. Subsequently, on 21.06.2013, the authorisation was again sought to be brought on record by the prosecution invoking Section 173(2)(5) (a) of the Code giving rise to the impugned orders.

7. The truth and veracity of the authorisation order not being in issue, the failure to file it along with the charge-sheet was an omission constituting a procedural lapse only. The rejection of the first application on 11.03.2008 not having been ordered on merits, but for failure to furnish a satisfactory explanation for the delay, Section 362 Cr.P.C has no relevance on facts. We are, therefore, of the opinion that there was no impediment in the appellant seeking to bring the same on record subsequently under Section 173(2) (5) (a) of the Code. The consequences of disallowing the procedural lapse were substantive in nature.

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

"6. Undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground o

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2019 Supreme(SC) 548

SUPREME COURT OF INDIAARUN MISHRA, NAVIN SINHA, JJ.STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATION – APPELLANT(S) VERSUSM. SUBRAHMANYAM – RESPONDENT(S)Criminal Appeal No(s). 853 of 2019 (Arising Out of SLP(Crl.) No(s). 2133 of 2019)Decided on : 07-05-2019

Cases Referred (3)

SUPREME COURT OF INDIA
ARUN MISHRA, NAVIN SINHA, JJ.
STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATION – APPELLANT(S)
VERSUS
M. SUBRAHMANYAM – RESPONDENT(S)
Criminal Appeal No(s). 853 of 2019 (Arising Out of SLP(Crl.) No(s). 2133 of 2019)
Decided on : 07-05-2019