MANJEET SINGH KHERAversusSTATE OF MAHARASHTRA

                     [2013] 8 S.C.R. 511


                  MANJEET SINGH KHERA                                A
                                v.
               STATE OF MAHARASHTRA
   (Special Leave Petition (Criminal) No. 5897 of 2013)
                      AUGUST 21, 2013
                                                                     B
      [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

     Criminal Trial - Supply of the complaint or content thereof
- To the accused - Whether binding on the prosecution -
Held: The complaint, in the instant case received by Anti-           C
Corruption Bureau, only triggered the investigation - It did not
form the foundation of the case o the FIR - The complaint
was not part of the police report - Therefore, non-supply of
the complaint or the contents thereof do not violate the
principle of fair trial - The complaint was not part of the police   D
report - Therefore, non-supply of the complaint or the contents
thereof do not violate the principle of fair trial - The complaint
has no relevance to the context of the prosecution in the
instant case, and in no manner prejudices the accused -
Special Leave Petition against the order of High Court               E
whereby the plea for production of the complaint was rejected,
dismissed.

     V.K. Sasikala vs. State Represented by Superintendent
of Police (2012) 9 SCC 771: 2012 (10) SCR 641 -                      F
distinguished.
                      Case Law Reference:
     2012 (10) SCR 641          distinguished         Para 6
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                 G
No. 5897 of 2013.

    From the judgment and Order dated 25.02.2013 of the
High Court of Bombay in Writ Petition No. 1020 of 2011
                               511                                   H
    512      SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A         Amol Chital (for Pragya Baghel) for the Petitioner.

          The Order of the Court was delivered by:

       K.S. RADHAKRISHNAN, J. 1. We are, in this case,
  concerned with the question whether the prosecution is bound
B to produce the original complaint/application filed by an
  unknown person, based on which an inquiry was initiated by
  the Anti Corruption Bureau.

        2. The petitioner (first accused) along with three others
c moved an application before the Special Sessions Court of
  Greater Bombay for a direction to the prosecution/Anti
  Corruption Bureau to produce the original complaint/application
  filed by an unknown person, leading the accused person to be
  charge-sheeted for offences under Section 13(2) read with
D 13(1)(e) of the Prevention of Corruption Act, 1988 read with
  Section 109 of the Indian Penal Code.

       3. The petitioner submitted that on the basis of that
  complaint an open enquiry No.31/198 was conducted and
  following that Special Case No.39 of 1999 was registered
E against the accused person. It was brought out that one
  complaint/application was received by the Anti Corruption
  Bureau and copy of that application was forwarded to the Home
  Department. PW1 had deposed that he could not disclose the
  name of the person who had sent that complaint. It was
F mentioned therein that the first accused was having huge -
  movable and immovable property at Bombay, Aurangabad and
  Nagpur. The first accused wanted a copy of the original
  complaint to be produced before the court as well as the name
  of the person who had sent that complaint.
G
       4. The prosecution resisted the application preferred by
  the first accused contending that the prosecution would not be
  relying upon the complaint/application sought to be produced.
  On the other hand, discreet enquiry was conducted based on
H that application and after collecting sufficient materials, the
       MANJEET SINGH KHERA v. STATE OF                       513
     MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
prosecution lodged first information report and thereafter           A
investigation was carried out. Further it was pointed out that
prosecution cannot examine the person who gave the
complainUapplication, otherwise no person would pass on any
secret information to the Anti Corruption Bureau.
                                                                     B
    5. The Special Judge, Prevention of Anti Corruption, found
no basis in the application calling upon for the production of the
original complaint as well as the name of the complainant, who
had sent the complaint and rejected the application vide his
order dated 29.01.2011, which was confirmed by the High Court
on 25.02.2013, against which this special leave petition has         C
been preferred.

    6. Shri Amol Chitale, learned counsel appearing for the
petitioner submitted that the petitioner is not interested in getting
the name of the person who made the complaint, but wanted D
to know the contents of the complaint, which cannot be said to
be secret information. Learned counsel also submitted that
prosecution cannot exercise privilege of non-disclosure of the
information they have received, which lead to the investigation.
Learned counsel placed reliance on the decision of this Court E
in V.K. Sasikala v. State Represented by Superintendent of
Police (2012) 9 sec 771 and submitted that when accused
applies for inspection of documents in the custody of the court,
even at the advanced stage of the trial, the court is duty bound
to supply those documents and the same reasoning will apply F
in the case of prosecution as well.

      7. Since the entire emphasis of the counsel for the
petitioner is on V.K.Sasika/a case (supra), before embarking
on the discussion on the issue involved, we would first like to
discuss the ratio of V.K.Sasikala case(supra). In that case, the     G
appellant -accused had demanded copies/inspection of those
documents which were not relied on by the prosecution but at
the same time, these documents formed part of police report
and were in the custody of the Court. Demand was made after
the prosecution had led the evidence and at the stage of             H
    514      SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A Section 313 Cr.P.C. questioning. In this backdrop, the question
  that fell for determination was as to whether the accused would
  be entitled to the documents which were.part of police report
  under Section 173(5) of the Code of Civil Procedure, and were
  in the custody of the Court. The Court explained the provisions
B governing the process of investigation of a criminal charge, the
  duties of the investigating agency and the role of the courts after
  the process of investigation is over and its legal expositor was
  narrated in the following manner:

                "13.Without dilating on the said aspect of the matter
c         what has to be taken note of now are the provisions of the
          Code with a situation/stage after completion of the
          investigation of a case. In this regard the provisions of
          Section 173(5) may be specifically noted. The said
          provision makes it incumbent on the investigating agency
D         to forward/transmit to the court concerned all documents/'
          statement, etc. on which the prosecution proposes to reply
          in the course of the trial. Section 173(5), however, is
          subject to the provisions of Section 173(5) which confers
          a power on the investigating officer to request the court
E         concerned to exclude any part of the statement or
          documents forwarded under Section 173(5) from the
          copies to be granted to the accused.

                 14.The court having jurisdiction to deal with the
F         matter, on receipt of the report and the accompanying
          documents under Section 173, is next required to decide
          as to whether cognizance of the offence alleged is to be
          taken in which event summons for the appearance of the
          accused before the court is to be issued. On such
          appearance, under Section 207 Cr.P.C, the court
G
          concerned is required to furnish to the accused copies of
          the following documents:

                1. The police report;

H
  MANJEET SINGH KHERA v. STATE OF                       515
MAHARASHTRA [K.S. RADHAKRISHNAV, J.]
       2.The first information report recorded under Section    A
154;

     3.The statements recorded under sub-section (3) of
Section 161 of all persons whom the prosecution
proposes to examine as its witnesses, excluding therefrom
                                                                B
any part in regard to which a request for such exclusion
has been made by the police officer under sub-section(6)
of Section 173.

     4. The confessions and statements, if any recorded
under Section 164;                                              c
      5. Any other document or relevant extract thereof
forwarded to the Magistrate with the police report under
sub-section (5) of Section 173.

      15. While the first proviso to Section 207 empowers       D
the court to exclude from the copies to be furnished to the
accused such portions as may be covered by Section
173(6), the second proviso to Section 207 empowers the
court to provide to the accused an inspection of the
documents instead of copies thereof, if, in the opinion of      E
the court it is not practicable to furnish to the accused the
copies of the documents because of the voluminous
content thereof. We would like to emphasise, at this stage,
that while referring to the aforesaid provisions of the Code,
we have deliberately used the expression "court" instead        F
of the expression "Magistrate" as under various special
enactments the requirement of commitment of a case to
a higher court (Court of Session) by the Magistrate as
mandated by the Code has been dispensed with and the
Special Courts constituted under a special statute have         G
been empowered to receive the report of the investigation
along with the relevant documents directly from the
investigating agency and thereafter to take cognizance of
the offence, if so required."
                                                                H
    516      SUPREME COURT REPORTS                   [2013] 8 S.C.R.


A         8. The Court also noticed that seizure of large number of
    documents in the course of investigation of a criminal case is
    a common feature. After completion of the process of
    investigation and before submission of the report to the Court
    under Section 173 Cr.P.C, a fair amount of application of mind
B   on th1~ part of the investigating agency is inbuilt in the process.
    These documents would fall in two categories: one, which
    supports the prosecution case and other which supports the
    accused. At this stage, duty is cast on the investigating officer
    to evaluate the two sets of documents and materials collected
c   and, if required, to exonerate the accused at that stage itself.
    However, many times it so happens that the investigating officer
    ignores the part of seized documents which favour the accused
    and forwards to the Court only those documents which supports
    the prosecution. If such a situation is pointed out by the accused
    and those documents which were supporting the accused and
0
    have not been forwarded and are not ()n the record of the Court,
    whether the prosecution would have to supply those documents
    when the accused person demands them? The Court did not
    answer this question specifically stating that the said question
    did not arise in the said case. In that case, the documents were
E   forwardt~d to the Court under Section 173(5) Cr.P.C. but were
    not relied upon by the prosecution and the accused wanted
    copies/inspection of those documents. This Court held that it
    was incumbent upon the trial court to supply the copies of these
    documents to the accused as that entitlement was a facet of
F   just, fair and transparent investigation/trial and constituted an
    inalienable attribute of the process of a fair trial which Article
    21 of the Constitution guarantees to every accused. We would
    like to reproduce the following portion of the said judgment
    discussing this aspect:
G
          "21.The issue that has emerged before us is, therefore,
          somewhat larger than what has been projected by the
          State and what has been dealt with by the High Court. The
          question arising would no longer be one of compliance or
H         non-compliance with the provisions of Section 207 Cr.P.C.
       MANJEET SINGH KHERA v. STATE OF                       517
     MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
    and would travel beyond the confines of the strict language     P
    of the provisions of Cr.P.C. and touch upon the larger
    doctrine of a free and fair trial that has been painstakingly
    built up by the courts on a purposive interpretation of
    Article 21 of the Constitution. It is not the stage of making
    of the request; the efflux of time that has occurred or the     B
    prior conduct of the accused that is material. What is of
    significance is if in a given situation the accused comes
    to the court contending that some papers forwarded to the
    court by the investigating agency have not been exhibited
    by the prosecution as the same favours the accused the          c
    court must concede a right to the accused to have an
    access to the said documents, if so claimed. This,
    according to us, is the core issue in the case which must
    be answered affirmatively. In this regard, we would like to
    be specific in saying that we find it difficult to agree with   0
    the view taken by the High Court that the accused must
    be made to await the conclusion of the trial to test the plea
    of prejudice that he may have raised. Such a plea must
    be answered at the earliest and certainly before the
    conclusion of the trial, even though it may be raised by the
    accused belatedly. This is how the scales of justice in our     E
    criminal jurisprudence have to be balanced.

    23.1. XXXXXXlOOO<:XXX:KXX>OOCXXlOCKXX>OOCXXlOCIOC

     9. Keeping in mind the principle of law and ratio laid down    F
in the aforesaid case, we now proceed to deal with the case
at hand. As noted above, the petitioner wants a copy of the
complaint which was received by the Anti-Corruption Bureau.
What is to be borne in mind is that this was a complaint given
by some person to the Anti-Corruption Bureau which only             G
triggered the investigation. Thus, this complaint simply provided
an information to the Anti-Corruption Bureau and is not the
foundation of the case or even the FIR. In fact, Anti-Corruption
Bureau, thereafter, held its own independent investigation into
the matter and collected the material which was forwarded to
                                                                    H
    518     SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A the Home Department and on that basis challan was filed in
  the Court pointing out that sufficient material emerged on the
  record as a result of the said investigation to proceed against
  the petitioner for offences under the provisions of Prevention
  of Corruption Act read with Section 109 of the IPC. In the final
B report under Section 173(5) Cr.P.C., this complaint was never
  forwarded. Thus, it is not a part of police report and is not in
  custody of the trial court, unlike the situation in V.K.Sasikala
  case (supra). No reliance is placed on the documents by the
  prosecution either. It is not even a document which would
c support the case of the petitioner in any manner. Hence the
  judgment of V.K.Sasika/a (supra) would have no application to
  the instant case.

         10. We state at the cost of repetition that the prosecution
    has categorically taken the stand that they do not propose to
D   rely upon the information passed on to the Anti Corruption
    Bureau leading to an open inquiry against the accused persons.
    We fail to see how the accused persons are prejudiced by non-
    disclosure of the name of the person who sent the complaint
    as well as the original copy of the complaint received by the
E   Anti Corruption Bureau. Situations are many where certain
    persons do not want to disclose the identity as well as the
    information/complaint passed on them to the Anti Corruption
    Bureau. If the names of the persons, as well as the copy of the
    complaint sent by them are disclosed, that may cause
F   embarrassment to them and sometimes threat to their life. This
    complaint only triggered an enquiry. Ultimately, the first
    information was lodged on the basis of an open inquiry bearing
    VER No.31/1987 and it is based on that inquiry the first           •
    information report dated 13.10.1992 was registered. After
G   completion of the investigation and after getting the sanction
    to prosecute accused No.1, charge-sheet was filed. PW1 also
    did not depose anything about the receipt of complaint/
    application in his examination-in-chief but receipt of the
    complaint/application and its contents having been relied upon
H   by the defence during cross-examination of PW1 .
       MANJEET SINGH KHERA v. STATE OF                         519
     MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
     11. We also emphasize that in the instant case the                A
prosecution has relied upon the material which was collected
during the investigation. It is not a case where some materials/
documents were collected by the investigating agency during
the investigations which are in favour of the prosecution and
the prosecution is suppressing those documents. We are of the          B
opinion that non-supply of the complaint or contents thereof do
not, at all, violate the principle of fair trial. The said complaint
has no relevancy in the context of this prosecution and in no
manner, it would prejudice the petitioner.

     12. Above being the factual and legal position, we find no        C
reason to interfere with the order of the Bombay High Court and
dismiss this special leave petition.

K.K.T.                                  Appeal SLP dismissed.