Kishan Lal Agarwal v. Central Bureau of Investigation

11. In the impugned order, the learned Special Judge was pleased to allow the application of the applicant, CBI and permitted CBI to recall witnesses as well as produce additional documents.

12. The Special Court, while allowing the application observed as under:- ARORA “Though the investigation Agency should have been vigilant and should have filed all the original seizure memos/letters along with challan, keeping in mind that photo copies of these memos/search memos/seizure memos are already on record, I hereby allow the application. Such original memos are taken on record.”

13. Mr. Jain, learned counsel states that in the present case, the application filed by CBI at the stage of final arguments, is an abuse of the process of law and has only been filed to fill in the lacunae raised by the petitioner herein in his written submissions.

14. Mr. Jain, at the outset has restricted his arguments only to the aspect of permitting the CBI to file additional documents and relies on a) Md. Ghouseuddin Vs. Syed Riazul Hussain & Anr. Criminal Appeal NO. 585 OF 2021

15. Per contra, Ms. Bhardwaj, learned standing counsel for CBI states that in the present case, the CFSL report was filed on record and duly proved. But some of the documents due to inadvertence and bona fide error were left out which is sought to be filed by virtue of this petition.

16. The documents are relevant for arriving at a just decision of the case and no prejudice would be caused as the accused will have a right to crossexamine the witnesses produced by the prosecution.

17. Ms. Bhardwaj relies on the following judgments: a) Varsha Garg vs. State of Madhya Pradesh & Ors b) Rajendra Prasad vs. Narcotic Cell through its officer in charge Delhi’

18. I have heard learned counsel for the parties.

19. A bare perusal of the narration of facts above shows that the case pending before the Special Judge is the oldest case pending before the judge.

20. In the present case, 3 applications were filed by the respondent in a piecemeal fashion and all the 3 applications were allowed by the Special Judge and additional documents filed by the respondent were taken on record.

21. The CBI has filed numerous applications for placing additional documents on record. It seems that due indulgence has also been shown to permit filing of the additional documents.

22. The impugned application for filing the additional documents is now the latest one, predicated on the written arguments filed by the petitioner.

23. The Special Judge in the impugned order has exercised his jurisdiction u/s 311 of the Cr.P.C. Section 311 of the Cr.P.C. permits the Special Judge to bring additional witnesses but does not permit filing of additional documents.

24. The Hon‟ble Supreme Court in Md. Ghouseuddin Vs. Syed Riazul Hussain & Anr. Criminal Appeal No. 585 OF 2021, while declining to summon the documents under Section 311 Cr.P.C. held as under: “Having heard learned counsel for the parties and going through the record, we are of the considered opinion that even if the question as to the jurisdiction of the High Court need not be over-emphasized, the fact remains that the Trial Court had given sound and tangible reasons for rejecting the application for summoning of the document(s) - moved at such a belated stage and without any justification for such relief. The High Court has completely glossed over this aspect in the impugned judgment. The right to summon document(s), indeed, is available but that has to be exercised when ARORA the trial is in progress and not when the trial is completed, including after the statement of accused under Section 313 of Criminal Procedure Code had been recorded. The efficacy of the trial cannot be whittled down by such belated application. Accordingly, this appeal succeeds and the impugned judgment and order passed by the High Court is set aside and the order of the Trial Court is restored, rejecting the application for summoning the document(s).” (Emphasis supplied).

25. I am of the considered view that the reliance placed by Ms. Bhardwaj in „Varsha Garg vs. State of Madhya Pradesh & Ors.‟ 2022 SCC OnLine SC 986 is misplaced as in the said case the FIR was pertaining to Section 302 read with Section 34 IPC. The Hon‟ble Supreme Court was of the view that Section 311 Cr.P.C. empowers the Trial Court to summon witnesses at a belated stage. There is no finding that the Trial Court can permit filing of additional documents and that too to fill the lacunae pointed out in the written arguments filed by the petitioner.

26. Another decision of Hon‟ble Supreme Court relied upon by Ms. Bhardwaj is „Rajendra Prasad vs. Narcotic Cell through its officer in charge Delhi’ (1999) 6 SCC 110, and more particularly para 8 which reads as under:

27. In the said judgment as well, the Hon‟ble Supreme Court was again dealing with an application seeking summoning of a witness u/s 311 Cr.P.C.

28. As is clear from the above, that Section 311 CrPC, which although provides a wide power to the Court has to be exercised with great caution and circumspection keeping the efficacy of trial in mind.

29. As already noted in the present case, the respondent is seeking placing of documents on record which, as per the petitioner, was a material omission and only after filing the written submissions, was taken note of by the respondent.

30. It is a settled law that filing of additional documents is a concession which needs to be exercised sparingly. I am of the opinion that while filing of documents, the party has to be conscious of the legal procedure and must take adequate and due care to file all documents which are relevant and germane to the issue in controversy and will prove the case of the respondent. The FIR is of the year 1997 and more than 26 years have elapsed.

31. The Supreme Court in State of U.P. v. Amar Nath Yadav, (2014) 2 SCC

32. In the present case, 3 applications for filing additional documents on oversight and inadvertence were already allowed. In spite of this, neither the CBI nor the person-in-charge has filed any explanation for not filing the documents in question within the prescribed period or with the 3 subsequent applications. The application in question was filed by the Investigating Agency/ Authority on 19-07-2021 i.e., after completion of the Prosecution evidence, after completion of statement of Accused persons under 313 Cr.P.C. and completion of entire Defence Evidence and thereafter at the time when the Final Arguments in the matter were to be heard by the Hon'ble Court and moreover when the petitioner herein had already filed his Written Arguments along with various Judgments before this Hon'ble Court on 14-04-2021, in which the petitioner had taken various arguments and cited legal precedents in his favour qua his innocence. In the written submissions, the petitioner has clearly highlighted the absence of evidence and proof of documents and more particularly the CFSL report. After filing of the written submissions, the respondent seems to have become wiser and has filed the impugned application on 19.07.2021 to fill up the lacunae left in the evidence of the respondent.

33. The fact that three earlier applications were filed and were allowed but despite the same, the respondent neither showed any diligence nor any care to file the documents and lead evidence in this regard.

34. Though in the impugned application, it was stated by the Department that the delay was due to oversight and inadvertence, the fact remains that ARORA the person/persons concerned have shown lack of diligence in prosecuting the matter.

35. Moreover, I am of the opinion that the words „inadvertence‟ and „oversight‟ have been used very casually by the respondent in their application. The respondent has failed to show any bonafides that it took expeditious action in filing those documents. Merely using the words „inadvertence‟ and „oversight‟ cannot mean that each and every delay ought to be overlooked by a Court. Since the respondent has failed to offer any explanation and failed to show due diligence in ensuring all relevant documents are placed on record, this negligence cannot be termed as mere „oversight‟ or „inadvertence‟.

36. This court cannot allow the respondent to shadow their lapses, fill the lacunae and further delay the present matter which is at the stage of final arguments by the way of this application.

37. For the aforesaid reasons, the impugned order dated 04.08.2021 passed by learned Special Judge, PC Act, CBI -07, RADC, New Delhi in CC No. 01/2019 (new)/C.C. No. 26/02 (old) titled „CBI vs. V.S. Jafa & Ors.‟ is unsustainable in law and is hereby quashed.

38. Since the matter is now at the stage of final arguments and is one of the oldest cases, it is expected that Trial Court shall conclude hearing of the case at the earliest, preferably 6 months from today.

39. With these observations, the petition is disposed of.