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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Siemens Enterprise Communications Pvt Ltd Now Known As Progility Technologies Pvt. Ltd. — Appellant
Versus
Central Bureau Of Investigation — Respondent
Criminal Miscellaneous (Main) No. 165 of 2018
Decided on : 30-08-2019
Criminal Procedure Code - Production of Seized Documents - Prevention of Corruption Act, 1988, Indian Penal Code - 13(2), 13(1)(d), 420, 471, 120-B - 227, 228 - 42-S/4 of 2014 - The court directed the trial court to consider the applications of the petitioner/accused afresh in the light of observations made herein above, in consonance with pronouncements of the Apex Court referred supra and to take a decision as to whether the documents withheld by the CBI referred by accused are of such a nature that consideration thereof along with the documents presented with the challan would completely demolish the prosecution case, rendering the entire charge-sheet a false document and if so, to pass an appropriate order after taking into consideration of these documents and in case his findings are contrary thereto, he shall not consider these documents and shall proceed further only on the basis of material placed before him along with the charge sheet.
Fact of the Case:
The petitioner filed applications to direct the prosecution and Investigating Officer to produce documents seized/recovered during investigation, but not relied upon in the final report under Section 173 of Cr.P.C., in a case registered by Central Bureau of Investigation, Shimla, under Sections 13(2), 13(1)(d) of Prevention of Corruption Act, 1988 and 420, 471 read with Section 120-B of Indian Penal Code. The trial court rejected the applications, stating that the documents requested to be produced have been permitted to be returned by CBI to the concerned persons or Departments.
Finding of the Court:
The court directed the trial court to consider the applications of the petitioner/accused afresh in the light of observations made herein above, in consonance with pronouncements of the Apex Court referred supra and to take a decision as to whether the documents withheld by the CBI referred by accused are of such a nature that consideration thereof along with the documents presented with the challan would completely demolish the prosecution case, rendering the entire charge-sheet a false document and if so, to pass an appropriate order after taking into consideration of these documents and in case his findings are contrary thereto, he shall not consider these documents and shall proceed further only on the basis of material placed before him along with the charge sheet.
Issues: The main issue was the rejection of the applications by the trial court for directing the prosecution and Investigating Officer to produce documents seized/recovered during investigation, but not relied upon in the final report under Section 173 of Cr.P.C.
Ratio Decidendi: The court held that the trial court should consider the applications of the petitioner/accused afresh in the light of observations made herein above, in consonance with pronouncements of the Apex Court referred supra and to take a decision as to whether the documents withheld by the CBI referred by accused are of such a nature that consideration thereof along with the documents presented with the challan would completely demolish the prosecution case, rendering the entire charge-sheet a false document and if so, to pass an appropriate order after taking into consideration of these documents and in case his findings are contrary thereto, he shall not consider these documents and shall proceed further only on the basis of material placed before him along with the charge sheet.
Final Decision: The petition is allowed in the aforesaid terms, so also the pending application(s), if any.
JUDGMENT :
Vivek Singh Thakur, J.
Present petition has been preferred by the petitioner against dismissal of applications bearing Cr.M.P. Nos. 347-S/4 and 348-S/4 of 2018, whereby prayer for directing the prosecution and Investigating Officer, at the stage of consideration of charge under Section 227 and 228 Cr.P.C., to produce documents seized/recovered during investigation, but not relied upon in the final report under Section 173 of Cr.P.C., in case FIR No. RC0962012A0004, dated 23.2.2012, registered by Central Bureau of Investigation, Shimla, under Sections 13(2), 13(1)(d) of Prevention of Corruption Act, 1988 and 420, 471 read with Section 120-B of Indian Penal Code, has been rejected by learned Special Judge (CBI) Shimla.
2. The reason, assigned by the trial Court for rejection of the applications, is that as per order dated 28.3.2014 passed by the said Court in an application Cr.M.P. No. 42-S/4 of 2014, preferred by CBI, the documents requested to be produced by the applicant have been permitted to be returned by CBI to the concerned persons or Departments, however, in rejection order liberty has been given to the applicant/accused to procure those documents from the concerned Departments or from the Malkhana of CBI.
3. Case of petitioner is that, Investigating Officer, during investigation, had requisitioned, seized, recovered and otherwise had come into possession of many documents from various quarters, including from the accused persons, to ascertain the facts and truth into the allegations of any financial irregularity and consequential loss to the State exchequer and criminality/culpability in the matter, if any, and one of such seizure memo was prepared by the Investigating Officer on 24.2.2012, whereby documents including various supply orders placed from time to time by various formations of Army, Government Departments and Government Organizations and also various private Companies at various places across the country during 2008-2009 to the petitioner-Company for supply of similar Exchanges, as were supplied to Boarder Road Organizations (BRO), Shimla for Deepak Project, were taken in possession and from the said documents, it was clear that similar Exchanges were supplied to various quarters throughout country during the same year either at the same or at the higher prices/rates than the prices at which similar Exchanges were supplied to BRO Shimla for Deepak Project in the said year and among these documents there was a report by Court of Enquiry, ordered by the Ministry of Road Transport and Highways, Border Road Development Board, Sena Bhawan, New Delhi on 19.4.2011, with the approval of Ministry of Defence and recommendations dated 19.9.2011, wherein on the basis of evidence collected, it was categorically concluded that there was no financial irregularities or loss to the Government due to purchase of the said Exchanges from the petitioner Company and these documents are of unimpeachable character and are sufficient to contradict and demolish the allegations of FIR without taking any external help of any other evidence, falsifying the claim put forth by the Investigating Officer in the challan/report submitted under Section 173 Cr.P.C.
4. It is further contended on behalf of petitioner Company that Investigating Officer/Agency is supposed to act fairly as fair trial is the cardinal principle of jurisprudence and a trial should be for search of truth, but not to frame the accused, in all eventualities, and further that dismissal of applications is contrary to the pronouncements of Apex Court in Satish Mehra Vs. Delhi Administration and another, (1996) 9 SCC 766; Om Parkash Sharma Vs. CBI, Delhi, (2000) 5 SCC 679; State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338; Rukmani Narvekar Vs. Vijaya Satardekar and others, (2008) 14 SCC 1 and Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others, (2015) 3 SCC 123.
5. It is further contended that the order dated 28.3.2014, whereby the trial Court had permitte
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