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CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.140 OF 2021
Sandeep Sunil Kumar Lohariya aged 31 years, Occ: Business having address at Plot No.16, Sector 28, Vashi
Navi Mumbai 400703 ..Applicant
(Through Crime Branch, Unit I, Mumbai)
2. Venkatesh Shettiyar
Aged adult, Occ: not known having address at Room No.103, Vikas Apartment,, Sainath Nagar, Virar (West), Thane 401203
(presently lodged in Taloja Jail)
3. Emanuel Amolik
Aged adult, Occ : Not known having address at 8/12, Meera Society, Shankar Sheth Road, Swargate Pune, (presently lodged at Taloja Jail)
4. Wajid @ Zahir Nabi Qureshi having address at Room No.210, Hillpark Building, Deori Pada, Kausa Mumbra, Thane.
5. Sumeet Bacchewar
Aged Adult, Occ: Not known
Having address at Plot No. 155
Santushti Bungalow, Behind Tilak College, Sec. 28
Vashi, Navi Mumbai 400703.
(presently on bail)
6. Altaf Khan
Aged adult, Occ: Not known
Having address at Room No.204
Aman Apartment, Sonaji Nagar, Kausa, Mumbra, Dist Thane
7. Mohd. Anis Nasir Ansari @ Bhaijan having address at Housing Board, Shashtri Nagar, Near TMS High School, Beri Chawl, Ambernath (West)
Thane.
8. Francis Chauri having address at Flat No.1852, C-Block 926, Kurla Camp Road, Ravindra Nagar, Ulhasnagar
Thane
(presently lodged at Taloja Central Jail)
9. Kailash Ghumane having address at Room No.824, Dinesh Chawl, Shashtrinagar
Housing Board Slum, Near Indian School, Ambernath (West), Dist. Thane
10. Suresh @ Jawahar Chellaram Bijlani having address at B-Bungalow, M.G.Complex, Sector 14, Vashi, Navi Mumbai 400 703.
11. Arif Gulam Dastagir Sheikh
Kausa, Mumbra, Thane
12. Anurag Garg having address at Flat No.1202, Building No.20, NRI Complex
Plot No. 56, 57, 58 Seawoods, Nerul, Navi Mumbai 400 603.
13. Mahresh Bijlani having address at Flat No.803, B Wing, Kshitij Tower, Sector 19, Sanpada, Navi Mumbai 400 705
(presently lodged at Thane Central Jail)
14. Anil Peter D’Souza having address at Room No.A/117, 88 CIDCO Colony, Near Datta Meghe College, Sector 19, Airoli, Navi Mumbai
(presently on bail) ..Respondents
Mr. Ameya Lambhate for the Applicant.
Mrs. A.S.Pai, Spl. P.P. for the State.
Mr. Aditya Sharma a/w. Archana Shukla i/b. Sudha Dwivedi for the Respondent Nos.6 and 7.
Sr. Adv. Aabad Ponda i/b. Vinod R. Gupta for the Respondent
Nos.10,and 11.
JUDGMENT
1. Heard fnally with the consent of the learned counsel for the respective parties.
2. This criminal revision application is fled by the son of the deceased challenging order dated 05.05.2021 whereby the learned Sessions Judge, Thane, dismissed the application under Section 173(8) of the Cr.P.C. fled by the prosecution in Sessions Case No.281 of 2013.
3. The brief facts necessary to decide this application are as under. The deceased Sunil kumar Lohariya, the proprietor of M/s. S.K.Builders was a whistle blower in the FSI scam and had lodged several complaints and initiated proceedings against the builders and other authorities, exposing illegalities and violation of FSI Rules in over 600 building projects. On 16.02.2013 he was gunned down by two assailants outside his Vashi ofce. The FIR was lodged and the crime was initially registered at Vashi Police Station. Subsequently, the investigation was transferred to the Crime Branch. In the course of the investigation, the assailants, some builders and others were arrested. The crime was investigated and on 13.10.2013 chargesheet came to be fled against the Respondent nos.[2] to 14 (hereinafter referred to as the accused) for ofences under Sections 302, 201, 120-B of the Indian Penal Code and Section 3(25), 3(27) and 4(25) of the Arms Act, 1959.
4. The case was committed to the Sessions Court and the charge was framed on 30.10.2017. Accordingly, the trial commenced and the prosecution examined total 63 witnesses. While the trial was in progress, the prosecution fled an application under Section 173(8) of the Cr.P.C. seeking leave to place on record additional evidence, which was allegedly available in the ofce of the deceased. The details of the additional evidence sought to be produced are given at Serial Nos.(i) to (xiii) of paragraph No.7 of the application.
5. The application was opposed by the accused on the ground of delay and want of sufcient grounds. The accused also raised a plea of prejudice. Upon hearing the respective parties the learned Judge dismissed the application mainly on the ground that the additional evidence, which is sought to be produced was in custody of the applicant, son of the deceased and that no reasons have been assigned for not producing the said evidence for over eight years. Learned Judge also observed that the prosecution has already examined 63 witnesses out of 70 witnesses proposed to be examined by the prosecution. It is held that the accused have already disclosed their defence and great prejudice will be caused to the accused if the prosecution is permitted to produce additional evidence at this belated stage. Learned Judge observed that despite the afdavit fled before this Court, that the prosecution would be examining 70 witnesses, the prosecution has fled applications for summoning additional witnesses. It is further observed that some of the accused are in custody since last eight years, despite which the prosecution has been delaying the trial and the application under Section 173(8) is also a mode of delaying tactics.
6. Mr. Lambhate, learned Counsel for the applicant submits that the documents referred to in the said application were already handed over to the Investigating Ofcer in the year
2013. In the month of November 2019, while preparing his deposition, the applicant realized that the video and audio clips were not part of the chargesheet. He brought this fact to the notice of the Investigating Ofcer in his supplementary statement dated 16.11.2019, as well as in the letter dated 22.11.2019. Learned Counsel for the applicant therefore contends that the fnding of the learned Judge that the additional evidence is still in the custody of the applicant is factually incorrect. Learned Counsel for the applicant further submits that additional evidence will not necessitate recall of the witnesses, who are already examined and will not delay the trial. He has relied upon the decision of the Apex Court in Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors. (Criminal Appeal Nos.2042-2043 of 2012), Luckose Zachariah @ Zak Nedumchira Luke and Others vs. Joseph Joseph and Others (Criminal Appeal No.256of 2012).
7. Ms. Aruna Pai, learned PP supports the application and adopts the submissions advanced by learned Counsel for the applicant. She further submits that recourse to Section 173(8) of the Cr.P.C. was kept open at the time of fling of the charge-sheet.
8. Mr. Ponda, learned Senior Counsel for the Respondents / accused submits that the investigating agency had chosen not to rely upon the documents, which were allegedly supplied by the applicant. The applicant, who had intervened at every stage of the proceedings did not challenge the action of the investigating agency in not relying upon the documents. Learned Counsel for the accused further submits that further investigation under Section 173(8) of Cr.P.C. can be undertaken when the investigating agency comes across new materials /evidence. He submits that in the instant case, the additional evidence, which is sought to be relied upon under Section 173(8) of the Cr.P.C. was already in custody of the applicant and was disclosed to the investigating ofcer. Consequently, the said material cannot be considered as fresh and new material, which can be produced under Section 173(8) of the Cr.P.C. Reliance is placed on the decisions of the Apex Court in Ram Lal Narang Vs. State (1979) 2 SCC 322, Vinubhai Haribhai Malviya and Ors. Vs. State of Gujarat, (2019 ) 17 SCC 1, and Shivkumar Vs. Hukam Chand & Anr. (1999) 7SCC 467.
9. Relying upon the decision of the Apex Court in Arun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, Mr. Ponda, learned Sr. Counsel submits that the prosecution is under an obligation to supply to the accused all documents upon which reliance is placed, before commencement of the trial. He submits that no explanation has been given for not relying upon the said evidence, which was within the knowledge of the applicant as well as the investigating agency. The accused are in custody since last eight years. The trial is at the fag end. The accused have already disclosed their defence and allowing the prosecution to rely upon additional evidence at such belated stage will result in serious and irreversible prejudice to the accused.
10. I have perused the records and considered the submissions advanced by the learned Counsel for the respective parties.
11. The question for consideration is whether the prosecution can be permitted to produce the documents listed at serial Nos.(i) to (xiii) in the application at Exhibit- 1462, under Section 173(8) of the Cr.P.C.
12. It may be noted that the investigation relating to commission of cognizable ofence commences with registration of the FIR and culminates in fling of the report under Section 173 of the Cr.P.C. Sub Section 8 of Section 173 confers right on the police to further investigate the crime even after submission of a report under Sub Section 2 of Section 173. In State through Central Bureau of Investigation vs. Hemendra Reddy and Anr 2023 SCC Online SC 515, the question before the Apex Court was whether sub-section 8 of section 173 of the Cr.P.C. permits further investigation after accepting a fnal report (closure report) under sub-section 2 of Section 173 of Cr.P.C. While considering the said issue, the Apex Court referred to the previous decisions in Rama Chaudhary vs. State of Bihar (2009) 6 SCC 346 and Hasanbhai Valibhai Qureshi vs. State of Gujarat and Ors. (2004) 5 SCC 347 and observed that “further investigation within the meaning of provision of Section 173(8) of Cr.P.C. is additional; more; or supplemental. “Further investigation” therefore, is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether. … The prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial and efective justice.” The Apex Court referred to several previous judgments including the decisions in Ram Lal Narang, Vinay Tyagi and Vinubhai (supra) and held that ‘further investigation’ in terms of Section 173(8) of the Cr.P.C. can be made in a situation where the investigating ofcer obtains further oral or documentary evidence after the fnal report has been fled before the Court. The report on such further investigation under Section 173(8) of the Cr.P.C. can be termed as a supplementary report. The Apex Court summarized the fnal conclusion as under:- “83. We may summarise our fnal conclusion as under:
(i) Even after the fnal report is laid before the
Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the fnal report submitted under Section 173(2) of the CrPC has been accepted.
(ii) Prior to carrying out further investigation under
Section 173(8) of the CrPC it is not necessary that the order accepting the fnal report should be reviewed, recalled or quashed.
(iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation.
(v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC.
13. The Apex Court while considering the issue of delay in trial on account of further investigation referred to the previous decision in Hasanbhai (supra) wherein it is observed that “13…if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as efective justice....”
14. The Apex Court also referred to the decision in Pooja Pal vs. Union of India and Ors., (2016) 3 SCC 135 wherein it is observed that:- “83. A “speedy trial”, albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in “fair trial”, both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the fnal arbiter. There is indeed a qualitative diference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been inefective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and efective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.”.
15. It is thus well settled that Section 173(8) of Cr.P.C. empowers further investigation where the investigating agency obtains further documentary or oral evidence after submitting the report under Section 173 of the Cr.P.C. The object of further investigation is to unravel the truth and do substantial and efective justice and hence the delay per se cannot hinder further investigation.
16. In the instant case, the investigating agency fled an application stating that the crime was initially registered at Vashi Police Station, and later transferred to Crime Branch, Unit I, Mumbai. It is stated that the crime branch has fled the chargesheet, however some evidence was available in the ofce of the deceased Sunil Kumar Loharia and that the evidence in respect of said additional evidence has not yet commenced. The Investigating Agency sought leave to produce the following additional evidence under Section 173(8) of Cr.P.C.
(i) The supplementary statement of Sandeep Kumar
(ii) Seizure Panchanama dated 16.11.2019 in respect of two audio CDs with transcript and one Video CD.
(iii) Video CD of the interview given by Sunil Kumar
(iv) Audio CD of conversation between the
(v) Audio CD of conversation between the
(vi) Letter dated 16.01.2009 received from the
(vii) Photographs of the meeting between the
(viii) Transcript of messages sent by the applicant to the Respondent No.12 -Anurag Garg on 04.10.2012. (ix)Documents relating to purchase of plot No.14, Section 50, Nerul by the deceased-Sunil Kumar Lahoria in the year 2011.
(x) The documents relating to sale of the plot by
(xi) Documents and case papers relating to Plot
(xii) Details of text message sent by the applicant on mobile phone No.9821699800 on 16.02.2013.
(xiii) FIR dated 30.10.2019 relating to theft and trespass into the house of the applicant herein.
17. The applicant claims that he had handed over the aforestated documents / evidence at Sr. Nos.(ii) to (xii) to Santosh Bagwe, the Investigating ofcer, who had recorded his statement under Section 161 of Cr.P.C. in the year 2013. The applicant claims that in the month of November-2019 while he was preparing for his deposition he learnt that the said correspondence, video and audio clips, agreement, etc were not made part of the chargesheet. Hence, he addressed a letter dated 22.11.2019 to the Deputy Commissioner of Police (Crime) stating that the aforestated evidence which was submitted to Mr. Santosh Bagwe, in the month of March-2013 was not produced along with the chargesheet. The applicant expressed his willingness to provide his voice sample for forensic analysis, and requested the Commissioner of Police to take immediate steps to take the evidence on record and produce the same before the Court. On the basis of this letter/complaint dated 22.11.2019, that the prosecution has fled this application for production of additional evidence.
18. A perusal of the averments in the application as well as the contents of the complaint dated 22.11.2019 reveal that the documents at serial nos.(ii) to (xii) which are sought to be produced under Section 173(8) of the Cr.P.C. were not collected or discovered in the course of further investigation after fling of the report. These documents were allegedly handed over to the Investigating Ofcer in the year 2013 at the time of recording the statement of the applicant under Section 161 of Cr.P.C. In such circumstances, the documents sought to be produced cannot be construed as ‘further evidence’ collected or discovered in the course of ‘further investigation’. Nevertheless, there is no embargo to produce such documents at a later stage.
19. In this regard, it would be advantageous to refer to the decision in Central Bureau of Investigation v/s. R.S. Pai (2002) 5 SCC 82, wherein the Apex Court has considered the question whether the prosecution can produce additional documents collected during investigation, after submitting charge sheet under section 173 of the Code of Criminal Procedure. The Apex Court upon considering the scope of section 173 observed that normally the Investigating Ofcer is required to produce all the relevant documents at the time of submitting the charge sheet. At the same time, as there is no specifc prohibition, it cannot be held that additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge sheet, it is always open to the Investigating Ofcer to produce the same with the permission of the Court. It is observed that the word ‘shall’ used in sub-section 5 of section 173 cannot be interpreted as mandatory, but as directory. Referring to sub-section 8 of section 173, it was observed that if further investigation is not precluded, then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused.
20. In Arjun Panditrao Khotkar (supra), the Apex Court while considering the issue of admissibility of electronic evidence, has observed that the stage of admitting the documentary evidence in a criminal trial is the fling of the charge sheet. When a Criminal Court summons the accused to stand trial, copies of all documents which are entered in the charge sheet/fnal report have to be given to the accused. Compliance of Section 207 Cr.P.C. is mandatory. Therefore, the electronic evidence has to be furnished at the latest before the trial begins. The reason being it gives the accused a fair chance to prepare and defend the charges leveled against him during the trial. The general principle in Criminal Proceedings, therefore, is to supply to the accused all the documents that the prosecution seeks to rely upon before the commencement of the trial. The Apex Court has observed that the requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement. The Apex Court has further observed that in a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against the accused before commencement of the trial. It is settled law that the prosecution cannot be allowed to fll up any lacunae during a trial, and the only exception to the general rule, as recognized in the case of R.S. Pai (supra), is if the prosecution had ‘mistakenly’ not fled a document.
21. The Hon’ble Supreme Court therefore concluded that ‘Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the Courts in criminal trials in permitting evidence to be fled at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the Court, in examining any application by the prosecution under section 91 or 311 Cr.P.C. or section 165 of the Evidence Act. Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certifcate at a later point in time. If it is the accused who desires to produce the requisite certifcate as part of his defence, this again will depend upon the justice of the case- discretion to be exercised by the court in accordance with law.”
22. In the instant case, the application does not confrm the statement of the applicant that the additional evidence which is sought to be produced under Section 173(8) Cr.P.C. was handed over to the Investigating Ofcer in the year 2013. The application does not disclose any reasons for non production of these documents/evidence along with the chargesheet, but merely states that though the chargesheet has been fled before the Court, some evidence was available in the ofce of the deceased Sunil Kumar Lohariya. The Investigating Ofcer has also not ofered any explanation in this regard despite opportunity given. It is not the case of the investigating agency/prosecution that the said evidence was not submitted along with the chargesheet due to inadvertance or some mistake. Hence no case is made out to deviate from the general procedure of producing all the evidence along with the chargesheet or for non compliance of Section 207 of Cr.P.C.
23. It is also pertinent to note that the audio and video CDs which were allegedly handed over to the Investigating Ofcer in the year 2013, were not seized under panchanama and were not forwarded to FSL to ascertain its authenticity. Hence even otherwise no fruitful purpose will be served by allowing mere production of the said evidence.
24. The applicant states that he has been following the case in religiously. He has intervened in the bail applications, petitions, and special leave petitions fled by the accused before the Sessions Court, the High Court and the Supreme Court. Despite which, he has waited for over six years to give his supplementary statement and to complain about non production of the evidence.
25. It is also relevant to note that the statement of the applicant under Section 161 of Cr.P.C. was recorded on 20.02.2013. The applicant gave a typed supplementary statement on 24.02.2013 giving details of transaction between his father and the accused Surya P. Agarwal, Sumeet Bachewar and Bhupesh Gupta. He also gave details of the FSI scam highlighted by his father, and the threats issued to him by the accused. Even after fling of the chargesheet in the month of May 2013, the applicant once again gave a detailed typed supplementary statement on 15.05.2014, wherein he referred to several incidents from the year 2011 onwards to attribute motive to the accused Anurag Garg and others for the cause of death of his father.
26. The applicant once again gave a supplementary statement on 16.11.2019, which is sought to be produced under Section 173(8) of Cr.P.C. In this statement he has given details of the strained relationship between his father and Anurag Garg and others. He also referred to the complaints fled by his father against Anurag Garg and others, and threats issued to him by the said accused since the year 2011.
27. In the supplementary statement dated 16.11.2019, the applicant merely reiterates the circumstances and reinforces his contention that the said accused had strong motive to commit the crime. The supplementary statement, which is sought to be produced under Section 173(8) Cr.P.C., does not bring on record some new facts which had come to the knowledge of the applicant after fling of the chargesheet or subsequent to the supplementary statement dated 15.05.2014. Undoubtedly, it is within the domain of the investigating agency to record statements or supplementary statements and to conduct efective investigation with an endeavor to bring out the truth. The power of investigation is ordinarily not impinged by any fetters. Nevertheless, investigation has to be in conformity with the constitutional mandate of expeditious and fair investigation. As in the instant case, subjecting the accused to piecemeal and endless investigation certainly does not conform to the rule of law leading to fairness in action.
28. The records reveal that the application which was fled in the year 2019 has been pursued at the fag end of the trial. It is true that the delay per se is not a ground to reject the application for production of additional evidence. It is however to be noted that the general proposition that the delay or procedural hurdles cannot come in the way of substantial justice is subject to a rider that such procedural violations do not cause prejudice to the accused. In the instant case, the charge was framed and explained to the accused on 30.10.2017. The evidence of the frst witness was recorded on 7.12.2018. Some of the accused are in custody since last over eight years, and they have been fling applications for expeditious disposal. In Writ Petition No. 4617 of 2016, fled by one of the accused seeking directions for day to day hearing, an afdavit was fled by Vinayak B. Mer, Inspector of Police, DCB, Unit I that the prosecution will examine 70 witnesses out of 199 witnesses cited in the chargesheet. The trial has been expedited by the Hon’ble Supreme Court and till date the prosecution has examined 63 witnesses who have been duly cross examined by the accused. The accused who have disclosed their defence will be greatly and irreversibly prejudiced if the prosecution is allowed to produce the additional evidence and fll in the lacuna at this belated stage.
29. Under the circumstances, and in view of discussion supra, I do not fnd any illegality or irregularity in the impugned order. Hence, the revision application is dismissed. (SMT.