er •L lN THE HIGH COURT 01= SIKKIM GANGTOK Criminal Revis.Ion Pofition No. 9 of 2005 ( With Crl. Misc. Applic:ation No.14 of 2005) Criminal Revision Petill.on No.10 of 2005 rvith Crl.Misc:.Application No.15 of 2005) Criminal Revision Petition No. 1 1 of 2005 And Criminal Revision Pctilion No.12 of 2005 Central Bureau of Investigation, 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 (14th & 15th Floors) Kolkata -700020. .f:-::-tj:,., Petitioner Versus 1. Santosh KumarHalder, S/o Lt. 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 : Forthe Respondents : 1 , 2, 3, 7 & 8 Forthe Respondents : 4, 6, 15 to 26 & 28 to 34. Forthe Respondents : 5, 9 to I 4. ..... Accused/Respondents Mr. Ranjan Kumar Roy, Special Public Prosecutor. Mr. A. Moulik, learned Senior Counsel and Mr. N. G. Sherpa, learned Counsel. Mr. N. Rai, learned Counsel and MissJyoti Kharga, learned Counsel. Mr. a. Sharma, learned Senior Counsel and Mr. T. Namgyal, learned Counsel Present : The Hon'ble Shri Justice A. P. Subba, Judge. Date of Order : 20Ih SeDtember, 200_6± ORDER A.P.Subba Since the facts of the above four (4) Criminal Revision Petitions 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. 1 1 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.1 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 non-est. 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 tr, 't illE same date i.e., June, 3, 2005 is S. T. (CBl) Case No.4 of 2004 similarly, directing closure of prosecution evidence and posting the case for examination of accused persons u/S. 313 Cr.P.C. 3. As per the facts set out in the above Criminal Revision Petitions, R.C.23-98-KOL was registered by the Delhi Special Police Establishment, Anti Corruption Branch, Kolkata, on receipt of reliable source information, to the effect that one Shri Ratan Kumar Garg (A-3) who is the authorized Fcl carrying Contractor, in league with Shri Santosh Kumar Haldar, Assistant Manager, FSD (FC) Rangpo Depot, in East Sikkim had been diverting consignments of rice, wheat and sugar from Fcl, Siliguri and New Jalpaiguri Depots, to Siliguri markets instead of dispatching and delivering the same to FCI Depots at Rangpo and Jorthang, in Sikkim by making false entries in the check posts etc. On completion of the investigation, that was initiated on the basis of the above source information, the I.0. submitted two charge sheets under Sections 120B/407|420|467/468|471 |473|477A of lpc and Section 13(2) recld wilh Secti.on J3(I)fd) of P. C. Act, J988 on 30.11.2000 -1St charge sheet being against 14 accused persons and the 2nd charge sheet being against 18 accused persons. While Criminal Case No.3 of 2004 was registered against one Santosh Kumar Haldar and 13 Others on the basis of the lst charge sheet, Criminal Case No.4 of 2000 was registered against the same accused Santosh Kumar Haldar and 17 others on the basis of the 2nd charge sheet under the same sections of law. Since both the charge sheets originated from the same first information report and they were in relation to the same transaction, both the cases were being taken up on the same dates. Thus, after the preliminary steps were completed in both the cases, hearing on charge were concluded on 4.12.2001 and orders thereto were pronounced on 12.2.2002 in both the cases. 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 Jain (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 accused persons, namely, Santosh Roy (A-7), Baijnath Mahato (A-8), Md. Barka (A-9), Cyril Bara (A-10), Kul Bahadur Chettri (A-12), Anil Poddar (A-13) and Ajay Kumar Jain (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. On 11.11.2003, which was the date fixed for examination of ill= 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 of the newly added accused persons and supply of the copy of the supplementary charge sheet. On 16.2.2004, on a prayer 61 made by the learned Public Prosecutor, further time to supply the copies of the supplementary 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. 1, 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-esf 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. Being aggrieved by the above orders relating to 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.I 1 and 12 of 2005, while the orders dated 3.6.2005 regarding closure of prosecution evidence is the subject of illEi challenge in the other two Criminal Revision Petition Nos. 9 and 10 of 2005. It is pertinent to note that the Criminal Revision Petitions were originally filed against 14 Accused/Respondents. Subsequently, 20 Accused/Respondents 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 CBI - Petitioner, Shri A. Moulik, learned Senior Counsel appearing on behalf of the Respondent Nos. 1, 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. 1 1 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 non-est against some of the accused \,.., persons. Reproduced below are the two orders passed in the said A Cases :- S.T.fcBn Case No.3 Of 2004 "26.5.2005 "26.5.2005 i,,.,, None present for the Slate/C.B.I. All the 16 accused persons present with their respective ld. Counsel. Date is fixed for supply of copies of supplementary charge sheet which had been filed as far bcick as on 11.11.2003 vide order of even dcite. It is a matter of great surprise that even within a period of one and a half year the C.B.I. has failed to supply copies of the supplementary charge sheet to the accused persons. In my opinion further grclnt of lime to 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, accused Nos.8 to 16 as per the supplementary charge sheet are hereby discharged and the supplementary charge sheet as against the accused Nos.1, 3 to 6 is non-est. Since the supplementary charge sheet had been filed at the stage of prosecution evidence, the prosecution/CBl shall produce further evidence. For further evidence. To : 3.6.2005." Sd/- ( Tashi Wangdi) SDI.Judae, P.C.Act. S.T.rcBn Case No.4 Of 2004 None present for the State/C.B.I. AIl the 11 accused persons except occusecl Nos. 9 and 11 present with their respective ld. Counsel. Accused Nos. 9 and 11 have prayed for exemption from their personal appearance. Some is considered and allowed. Date ls fixed for supply Of copies Of supplementary charge sheet whieh had been filed as far back as on 11.11.2003 vide order Of even date. It is a matter Of great surprise that even within a period Of one and a half year the C.B.I. hcis failed to supply copies Of the supplementary charge Sheet to the accused persorrs. In my opinion further grant Of time to the C.B.I. for supply Of copies Of the supplementary charge sheet would be simply on abuse Of the process Of the Court. Therefore, accuse Nos. 6 to 14 as per the supplementary charge sheet are hereby discharged and the supplementary charge sheet as against the accused Nos.1 to 5 is non-est. Since the supplementary charge sheet had been filed at the stage Of prosecution evidence, the Prosecution/C.B.I. shall produce fuhher evidence. I:or further evidence. To : 3.62005." Sd/- ( Tashi Wangdi) SDI.Judae, P.C.Act. 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 •+.,, extended dates. It was the specific submission of the Special learned Public Prosecutor that the duty 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 the accused Respondents, most of whom had to come to Sikkim to attend 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 Respondents 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 cognieance. 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 :- "Zol. Supn_Iy to the accused of coDy of Dolic:e reDorl and other documents. - ln any case where the proceeding hcls been instituted on a police report, the Magistrcite shall without delay furnish to the accused, free Of cost, a copy Of each Of the followino :. in the police report; (ii) the first informdion report recorded under secllon 154; (lli) the statements recorded under sub-section (3) Of Section 161 Of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any pclrl in regard to which a request for such exclusion has been made by the police officer under sub-section (6) Of Section 173; Ov) the confessions and statements, if any, recorded under Sedion 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) Of Section 173; „ 12. 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 L,. 11 witnesses to the accused. This duty, 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 Cour+ .in State Of u.P. vrs. Laksmi Brahman AIR 1983 SC 439. 1+ 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 producecd 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 h.is notiice 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. ComDliance wl.Ih Section 207. - When, ln clny warrant-case insliluted on ci police report, the accused appears or is brought before a Magistrate at the commencement Of the tricll, the Magistrate shall satisfy himself that he has complied with the provision Of Section 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 with 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 1, 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 the provisions of section 207 Cr.P.C. is mandatory or directory is no longer res integro after the above decision reported in A/R J983 SC 439 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 the 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 the assumption that it 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, \r 13 ©fJ` the fact remains that such undertaking given by the prosecution does not 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 prosecution coupled with the 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 Zchjro HabjbuJla H. Sheikh a Anolher ys. SJdre of Gu/.. And Ors. 2004 SCC fcri) 999 that it will not be correct to say that it is only the accused who must be fairly dealt with. Such an approach, according to 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 fair ti.ial entails the familiar triangulation of interests of the accused, the victim and society, and it is the communlty that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. It hcis to be unmistakably understood that a trial which ls primarily aimed at asceitaining the truth has to be fair lo all concerned. It will not be correct to soy that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members 14 Eli "i-. and relatives. Each one has an inbuilt right to be dealt with fairly ln a criminal trial. Public interest. in the DroDer administration of iustice RE::!h|:::o:i:::n:i,h;:elf:e;:,I:eTjo;;h:i:e::g¥ The Apex Court then proceeded to make the following further observation :- 17. "The Supreme Couit has often emphasized that in a crimlncil case the fate of the proceedings cannot cllways be left entirely in the hands of the poities, crimes being public wrongs in breach and violation of public n.ghls and duties, which affect the whole community as a community and are harmful to society ln general." ln the later case of Zohi.ro Hobjbu//oh Sheikh a Anolher y. Sfdre of Gujorclf 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 alsq be justified. The next question that discharge of the accused i us in the face is, was the the learned 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