IN THE HIGH COURT OF SIKKIM / GANGTOK Criminal Revision Pet.IIion No. 9 of 2005 (Wilhcrl.Misc.Applicq!¥n_:o.14of2005) Criminal Revision Pelilion No.10 of 2005 (WIIh Crl.Mlsc.Application No.15 of 2005) Criminal Revision Pelilion No. 11 of 2005 And Criminal Revision Pelilion No.12 of 2005 Central Bureau of lnvestlgalion, Through the Additional Suptd. of Police, Central Bureau of Investigation, Special Police Establishment, Anti Corruption Branch, 234/4, Acharya Jagadish Chandra Bose Road, Nizam Palace ( 14lh & 15lh Floors) Kolkata - 700020. Ve,sus Petitioner 1. Santosh KumarHalder, S/o Ll. A. K. Halder, Working for gain as Asstt.Manager (Depot)/ Chief Labour Inspector, FSD/Fcl, Rangpo, East Sikkim. R/o Nabanagar, Bizpur, 24-Parganas (South ). And 33 Others For the petitioner : FortheRespondenls : 1, 2, 3, 7 & 8 FortheRespondenls : 4, 6, 15 to 26 & 28 to 34. Forthe Respondents : 5, 9 to 14. ..„. Accused|Respondenls Mr. Ranjan Kumar Roy, Special Public Prosec.utor. Mr. A. Moulik, learned Senior Counsel and Mr. N. G. Sherpa, learned Counsel. Mr. N. Rai, learned Counsel and MssJyoti Kharga, learned Counsel. Mr. 8. Sharma, learned Senior Counsel and Mr. T. Namgyal, learned Counseli ® Present .. The Hon'ble Shrl. Jusfice A. P. Subba, Judge. Date o ORD Order .. ER 2_0'hse tembe, Since the facts of the above four (4) Criminal Revision Pet"ons are similar, and identical questions of law arise in them, they were taken up together for hearing and are being disposed of by this common order. Criminal Revision Petition No. I I of 2005 is directed against the order dated May 26, 2005 passed in Criminal Case No.3 of 2000 renumbered as S. T. (CBl) Case No. 3 of 2004, by the learned Special Judge, P. C. Act (East and North), at Gangtok, discharging accused Nos. 8 to 16 named in the supplementary charge sheet and for treating the supplementary charge sheet against accused Nos.I and 3 to 6 as non- est. Criminal Revision Petition No.12 of 2005 is directed against the Order of the same date, i.e., May 26, 2005 passed in Criminal Case No.4 of 2000 renumbered as S.T. (CBl) Case No.4 of 2004 by the same Court, similarly discharging accused Nos.6 to 14 named in the supplementary charge sheet and also for treating the supplementary charge sheet as against accused Nos. 1 to 5 as nor}-esl. The subject matter of challenge in Criminal Revision Petition Nos. 9 of 2005 is the order dated June 3, 2005 passed in the above S. T. (CBl) Case No.3 of 2004, directing closure of prosecution evidence and posting the case for examination of accused persons under Section 313 Criminal Procedure Code and the subject matter of challenge in Criminal Revision Petition No.10 is the order of the ® \ 3 samedate1e.,June,3,2005isST(CBuCaseNo4of2004similarly, • dlrecting closure of prosecullon evidence and posting the case for examjnalionofaccusedpersonsu/S.313Cr.P.C. 3. As per the facls set oul in the above Criminal Revision Petltlons, R C 23-98-KOL was registered by the Delhl Special Police Establjshme" An" Corruption Branch, Kolkata, on recelpt of reljable source`nformationtotheeffectthatoneShriRatanKumarGarg|A-3) whojstheauthorizedFclcarryingContractor,inleaguewithShnScintosh KIlmnrLJ,-'J_I__ , . KumarHaldar,AssislanlManager,FSD(FC)Rangpo been djvertjng consignments of rice, wheat iguri and New Jalpaiguri Depots, to Sjliguri dispatching and delivering the same to Depot, in East Sikkim and sugar from Fcl, markets instead of _ .,.. g ,ilc 5ume lo FCI Depots at Rangpo and Jorthang,i.nSikkimbymakingfalseentriesinthecheckpostsetcOn completionoftheinvestigation,thatwasjnitlatedonthebasisofthe abovesourceinformation,the10submiltedtwochargesheetsunder :eeac:a:js,h':=B.::^°.",4.2,:I::`7/4_68/471/473/477Aom=-an=::i::nu:3a(e2; reodw/.IhSectjonJ3rJ/fd/ofP.C.Act,J988on30.112000-lstcharge sheetbeingagainstI4accusedpersonsandthe2ndchargesheetbeing against 18 accused persons While Crlminal Case No3 of 2004 was registeredagainstoneSanloshKumarHaldarand130lhersonthebasis of the lsI charge sheet. rrirn:r`~l ^- sheet, Criminal Case No.4 of 2000 was registered v_ .,..,,, a .uiue accused Santosh Kumar Haldar and 17 others on the basisofthe2ndchargesheetunderthesamesectlonsoflawSlnceboth thechargesheetsoriginatedfromthesamefjrstinformationreportand theywereinre'ationtothesametransaction,bolhthecaseswerebeing taken up on the same dates. Thus, after the prelimlnary steps were completedmboththecases,hearlngonchargewereconcludedon against the same 4.12.2001 and orders thereto were pronounced on 12.2.2002 in both the ca.ses. By the order passed in S. T. (CBI) Case No.3 of 2004, seven accused persons, namely, Uttam Lal Saha (A-7), Binod Roy (A-8), Pappu Basnett (A-9), Dinanath Prasasd (A-10), Mohan Thapa (A-11), Pushpa Sharma (A-12) and Ajay Kumar Join (A-14) were discharged, there being no prima facie material against them and charges were ordered to be framed against the remaining 7 accused persons. Similarly, by the Order dated same i.e„ 12.2.2002 passed in S. T. (CBl) Case No.4 of 2004, seven ccused persons, namely, Santosh Roy (A-7), Baijnath Mahato (A-8), d. Barka (A-9), Cyril Bara (A-10), Kul Bahadur Chettri (A-12), Anil Poddar (A-13) and Ajay Kumar Join (A-15) were discharged, as there was no sufficient prima facie material against them and charges were ordered to be framed against the remaining 11 accused persons. After the pronouncement of the order on charge, trial in respect of the remaining accused in both the cases proceeded and by November 2003, 14 witnesses in all had been examined. 4. On 1 1.11.2003, which was the date fixed for examination of further prosecution witnesses in both the cases, the prosecution filed an application stating that a supplementary charge sheet against new accused persons in connection with the same case had been filed and prayed for deferring the examination of further PWs. until charges were framed against the newly added accused persons. The prayer made by the prosecution was allowed and cognizance of offences against the newly added accused persons was taken and summonses were directed to be issued in both the cases. Dates were thereafter fixed for appearance c)f the newly added accused persons and supply of the copy of the supplementary charge sheet. On 16.2.2004, on a prayer made by the learned Public Prosecutor, furlher time to supply the copies of the supplemenlary charge sheet was allowed in both the cases. After several adjournment of dates on the ground that the copies of the supplementary charge sheet were not ready, both the cases came up on 26.5.2005 for supply of copy of supplementary charge sheet to the newly added accused persons. However, on this date, none appeared on behalf of the prosecution and on such default, the accused Nos. 8 to 16 mentioned in the supplementary charge sheet in ST (CBl) Case No.3 of 2004 and accused Nos. 6 to 14 mentioned in the supplementary charge sheet in ST (CBl) Case No.4 of 2004 were discharged and the supplementary charge sheet in respect of accused Nos. I , 3 to 6 in S. T. (CBl) Case No.3 of 2004 and supplementary charge sheet in respect of accused No.1 to 5 in S. T. (CBl) Case No.4 of 2000 were ordered to be treated as non-est and 3.6.2005 was fixed in both the cases for further prosecution evidence. However, on the above date as well, none appeared for the prosecution, even though all the accused entered appearance in both the cases. Consequently vide orders dated 3.6.2005 passed on that date the prosecution evidence in both the cases were ordered to be closed and both the cases were posted for recording statement of the accused persons under Section 313 Cr.P.C. for 29.6.2005. 5. Being aggrieved by the above orders relating lo discharge of accused persons and closure of prosecution evidence, the CBl has come up in these Revision Petitions. The orders dated 26.5.2005 regarding discharge of accused persons have been challenged in the Criminal Revision Petition Nos.11 and 12 of 2005, while the orders dated 3.6.2005 regarding closure of prosecution evidence is the subject of challenge in the other two Criminal Revision Petition Nos. 9 and 10 of 2005. lt is pertinent to note that the Criminal Revision Petitions were originally filed against 14 Accused/Respondents. Subsequently, 20 Accused/Respondenls were impleaded. However, out of the total 34 Accused/Respondents, Shri Anil Poddar, accused/respondent No.27 was reported to be dead and, accordingly, the matter proceeded against the 33 remaining Accused/Respondents. 6. The Criminal Revision Petition Nos.11 and 12 were first taken up for hearing on 10.8.2006 and the Criminal Revision Petition Nos. 9 and 10 were then taken up for hearing on 29.8.2006. Mr. Ranjan Kumar Roy, the learned Special Public Prosecutor appearing on behalf of the CBl - Petitioner, Shri A. Moulik, learned Senior Counsel appearing on behalf of the Respondent Nos. I, 2, 3, 7 and 8, Mr. N. Rai, learned Counsel appearing on behalf of Respondent Nos. 4, 6, 15 to 26 and 28 to 34 and Mr. a. Sharma, learned Senior Counsel appearing on behalf of Respondent Nos. 5, 9 to 14 were heard. 7. For the sake of convenience, we may first take up the rival contentions raised by the parties in Criminal Revision Petition Nos. 11 and 12 of 2005. As already noted above, the subject matter of challenge in these Criminal Revisions are the two orders both dated 26.5.2005 passed in S.T. (CBI) Case No.3 of 2004 and S. T. (CBl) Case No.4 of 2004, discharging newly added Accused/Respondents and for treating the supplementary charge sheet as rion-e5/ against some of the accused persons. Reproduced below are the two orders passed in the said ccfses :- S_±_I.(can Case No.3 Qt 2Q94 "26.5.2005 '.26.5.2005 None present for the State/C.B.I. All the 16 accused persons present with their respectlve ld. Counsel. Date ls fixed for supply of coples of supplementary charge sheet whlch had been filed os far back as on 11.11.2003 vide order of even date. It ls a matter of great surprlse that even wilhln a perlod ol one and a half year the C.B.I. has falled to supply copies of lhe supplementary charge sheet to the accused persons. In my oplnlon further grant of time to the C.B.I. for supply of coples of the supplementc]ry charge sheet would be slmply an abuse of the process of the Court. Therefore, accused Nos.8 to 16 cis per the supplementary charge sheet are hereby dlscharged clnd the supplementary charge sheet as agalnst lhe accused Nos.1, 3 to 6 ls non-est. Since the supplementciry charge sheet had been filed al lhe stage of prosecution evldence, the prosecullon/CBl shall produce further evidence. For further evidence. To : 3.6.2005." Sd/- ( Tashl Wangdi) SDI.Judae, P.C.A£± S±(CBI) Case No.4 of 2Q_04 None present for the State/C.B.I. All the 11 accused persons except accused Nos. . and 11 present with lhelr respecllve ld. Counsel. Accused Nos. 9 and 11 have prayed I?r exemption from thelr personal appearance. Same ls considered c]nd allowed. Date ls fixed for supply ol copies of supplemenlary chc)rge sheet whlch had been filed as far back as on 11.11.2003 vide order of even dale. 11 ls a matter of great surprlse that even wllhln a perlod of one clnd a half year the C.B.I. has falled lo supply coples of the supplementary charge sheet to the accused persons. In my oplnlon further grant of time lo the C.B.I. for supply of copies of the supplementary charge sheet would be simply an abuse of the process of the Court. Therefore, accuse Nos. 6 lo 14 as per the supplementary charge sheet ore hereby dlscharged and the supplementary charge sheet c]s c)golnst the accused Nos.1 lo 5 ls non-esl. Since the supplementary charge sheet had been filed at the stage of prosecutlon evidence, the Prosecution/C.B.I. shall produce further evldence. For further evidence. To : 3.6.2005." Sd/- ( Tashl Wc]ngdl) _SI)I.Judge,P.C.Ac_i._ As can be noticed from the orders reproduced above, the newly added accused/Respondents who were named in the supplementary charge sheet were discharged on default of the prosecution to furnish copies of the supplementary charge sheet for supplying the same to the said accused persons. The submission of the learned Special Public Prosecutor in this regard, is that, even though the prosecution had undertaken to furnish copies of the supplementary charge sheet to the Court, it was the duty of the Court to supply the copies of these documents to the accused persons, and in view of this, it was not proper on the part of the Court to discharge the accused persons on the failure of the prosecution to supply copies of the documents on the ® L 9 extended dates. It was the specific submission of the Special learned Public Prosecutor that the duly cast on the Court to supply copies to the accused persons was mandatory which could not have been shifted to the prosecution and the default of the prosecution could not have been made the ground for discharge of the accused persons. The learned Counsel for the Respondents, on the other hand, in one voice, contended that the prosecution case having lingered on for about one and a half years merely on account of the failure of the prosecution to supply copies of the supplementary charge sheet, had caused undue harassment to 3jhe accused Respondents, most of whom had to come to Sikkim to ttend the Court from several places outside Sikkim. In view of such harassment being caused to the accused persons, and in view of the default of the prosecution despite enough opportunity having already been given, the learned trial Court had no other option but to discharge the accused Respondenls to save them from .further harassment, and, as such, the order was correct, legal and sound as per law, in the circumstances of the case. Mr. a. Sharma, the learned Senior Counsel taking an additional ground further submitted that the prosecution could not have filed the supplementary charge sheet in absence of any permission from the learned trial Court for conducting further investigation. 10. As can be made out from the above respective stand taken by the parties, the question that falls for consideration of this Court is whether it was a mandatory duty on the part of the Court to supply copies of the supplementary charge sheet, and if so, whether such mandatory duty could have been passed on to the shoulder of the prosecution and whether on the consequent failure of the prosecution to ~® ® 10 discharge the duty so imposed the accused persons could have been discharged. 11. The provision contained in Section 207 Cr.P.C. leaves no room for doubt that the duty of furnishing copy of police report and other documents to the accused in warrant cases, has been laid on the Magistrate who takes cognizance. The relevant portion of the said Section which provides for supply of copy of police report and other documents to the accused is to the following effect :- "2o7.S±f=:ed_a-{nc°=:yofcDa°!'ece-:RFTD#e proceeding has been Instituted on a police report, the Maglstrate shall wlthoul delay furnlsh to the accused, free of cost, a copy of each of the following :. 12. the pollce report; the flrst lnformallon report recorded under Secllon 154; (Ill) the statements recorded under sub-secllon (3) of Section 161 of all persons whom the prosecutlon proposes to examine cis Its witnesses, excludlng therefrom ciny part ln regard lo whlch a reque§l for such exc[uslon hcls been made by the police officer under sub-section (6) of Section 173; (lv) the confesslons clnd statements, if any, recorded under Section 164; (v) any other document or relevcinl extract thereof forwarded to the Maglstrate wilh the police report under sub-section (5) of Section 173; •..............,.................................................,,,,,,,, „ A bare reading of the above section makes it clear that a duty has been cast on the Magistrate to furnish the copy of the police report and other documents to the accused without delay and free of cost. This section therefore creates a statutory obligation on the part of the Magistrate to supply copies of all documents and statement of 11 witnesses to the accused. This duly, which a Magistrate is required to perform in terms of Section 207, Cr.P.C. is a judicial function, which has to be discharged in a judicial manner as per the observation of the Apex Court in Sfale a/ U.P. yrs. [oksmJ Brohmcin A/R IP83 SC 43?. It has been held .that, in order to comply with the requirement of this section, the Magistrate has to enquire from the accused when he is produced before him, as to whether copies of various documents set out in the section have been supplied to him or not and record his statement. A further duty cast on the Magistrate u/s 238 Cr. P. C. requires the Magistrate to satisfy himself at the commencement of the trial, that free and legible copy of the document mentioned in Section 207 have been delivered to the accused and if it comes to his notice that such copies have not been furnished, he should cause the same to be furnished. Section 238 which so requires a Magistrate to satisfy himself that there is required compliance of Section 207 is as follows :- "238. €_omDlipnce w_llh Secliqn 2QZ. - When, ln clnv wc]rrant-case lnstituled on a pollce report, the accused appears or ls brought before ci Maglslrote at the commencement of the trial, the Moglstrate shall satisfy hlmself lhc)l he has complled wlth the provlslon ol Sectlon 207." 13. Thus, a combine reading of Sections 207 and 238 quoted above, would go to show that the Magistrate is now duty bound to see that the accused is furnished wilh copies of all relevant documents at the commencement of the trial. 14. No doubt, the position of law in the old code was different in so far as under the repealed Code it was the duty of the police to furnish copies of the police report and other documents to the accused persons. However, as such arrangement was not found to have worked 12 • satisfactorily causing much avoidable delay in the trial of cases, the duty +to supply copies of relevant documents to the accused persons has been imposed on the Magistrate by introducing Section 207 and making the duty mandatory. Thus, under this provision it is for the Magistrate to see that the police papers and other documents have been supplied to the accused. 15. Indeed, the question whether lhe provisions of Section 207 Cr.P.C. is mandatory or directory is no longer res Jnlegro after the above decision reported in A/R JP83 SC 43P in which their Lordships of the Supreme Court have held that the provisions contained in Section 207 are mandatory. 16. Having thus found that the provisions contained in Section 207 is mandatory and it would be the duty of the Magistrate to ensure compliance of the same under the provisions of Sec. 238, we now proceed to see if there is compliance of this provision in the case at hand. A reading of the impugned orders already reproduced above would go to show that the learned trial Court passed on the duty of supplying copies of the supplementary charge sheet enjoined on it by Section 207 to the shoulders of lhe prosecution and on their failure to carry out the same, the learned court passed the order of discharge of the newly added accused persons. This goes to show that the learned trial Court has proceeded on lhe assumption that il is invariably the duty of the prosecution to supply copies of the police papers to the accused persons and not for the Court. There is no doubt that some lapses occurred on the part of the prosecution, in so far as, the prosecution was not sincere to the commitment made before the Court< However, 13 the fact remains that such undertaking given by the prosecution does L4 t absolve the Court from.the responsibilities cast on it by law to see that the copies of the police report and other documents are furnished to the accused. The impugned orders further go to show that apart from failure of the prosecution to supply copies of the charge sheet, the long time taken by the proseculion coupled wilh lhe failure to carry out the purpose for which time was granted is also the ground for discharge of the accused persons. So far as the question of effects of delay in the trial is concerned, it must be conceded that the failure on the part of the prosecution to honour the commitment for a long period contributed to the delay in the trial. However, it must be noted that discharge of the accused in a warrant triable case on such ground alone would not be in consonance with the principles underlying a fair trial. In this regard, it is relevant to bear in mind the observation made by the Apex Court in the recent case of Zohi.ro Hobi.bu//a H. Sheikh a Another vs. Slole of Gu/. AncJ Ors. 2004 SCC fcri) ?P9 that it will not be correct to say that it is only the accused who must be fairly dealt with. Such, an approach, according lo the Apex Court, would be turning a Nelson's eye to the needs of the society at large. Throwing light on the principles that govern a fair trial, the Apex Court in the above case observed as follows: - "The concept of falr lrlal entalls the famlllar triangulallon of lnleresls of the accused, the victim and society, and lt ls the communlly that acts through the Stale and prosecuting c]gencles. Interests of soclety are not to be treated complelely wllh dlsdaln and as persona non grata. It has to be unmlslakably understood that a trlal whlch ls primarily aimed al clscertalnlng the tTulh has to be fall to all concerned. It will not be correct to say that lt ls only the accused who must be falrly dealt with. That would be lumlng a Nelson's eye to the needs of society at [c]rge and the victims or lhelr famlly members 0`` a 14 and relatlves. Each one has on lnbuill rlghl lo be dealt with fairly ln cl criminal trial. Public lnleresl ln the Proper cidmlnlstrallon of lusllce • must be alven as much lmDorlanc{„ lf nol more, cls the Interests of the E| lndMduc]l accused. In this courls have a v»al role to Dlciv. The cause of the community deserved equal trealmenl al the hands of the court ln the dlschc]rae of Its ludiclal functlons". / emphosjs supp`i.ed /. The Apex Court then proceeded to make the following further observation :- "The Supreme Court has otlen emphaslzed that ln a criminal case the fate of the proceedings cannot always be left entirely ln the hands of the parties, crlmes being public wrongs ln breach and vlolatlon of public rlghts and dutles, which affect the whole community as a community and are harmful to soclety ln general." ln the later case of Zclh/ro Hobi.bu//oh Shei.kh a Anothe/ y. Stcile of Gu/orot a Ors. reported in 2006 2 SCC fcri) 8 the Apex Court has categorically held that delay is no ground to close evidence and acquit the accused. Thus if closure of evidence or acquittal of accused cannot be justified on the ground of delay, it follows that discharge of accused on similar grounds cannot also be justified. The next question that stares us in the face is, was the discharge of the accused the only oplion the leaned Court was left with in the circumstances of the case. In this regard the submission of the learned Counsel for the Respondents is that discharge of the accused was the only desirable course open to the learned Court particularly in view of the fact that the prosecution was not diligent in pursuing the case and the delay that was being caused was interfering with the right of the accused to speedy trial. We have already come to the conclusion above that lack of diligence on the part of the ' prosecution cannot absolve the Court from performing' the duty 15 imposed by law and cannot also juslify extreme steps like discharge of . the accused/respondents. Coming now to the question of delay and the alleged violation of right to speedy trial of the accused, it may be noled lhal lhere is undoubledly some delay. As per lhe record, copies of the supplemenlary charge sheet were not supplied in spite of about one and a half years time taken for that purpose. Can such delay be taken to have violated the right of the accused/respondent to speedy trial to such an extent as to justify closure of prosecution evidence and discharge of the accused, is the question we are faced with.