STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATIONversusM. SUBRAHMANYAM

                          [2019] 7 S.C.R. 287                              287


STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL                           A
              BUREAU OF INVESTIGATION
                            v.
                  M. SUBRAHMANYAM
             (Criminal Appeal No. 853 of 2019)
                       MAY 7, 2019                                         B
        [ARUN MISHRA AND NAVIN SINHA, JJ.]
    Code of Criminal Procedure, 1973:
       s. 482 – Case under Prevention of Corruption Act –
Application u/s. 242 Cr.P.C to bring on record authorisation of
                                                                           C
investigation, filed after three years of filing of charge-sheet –
Dismissed on the ground that no explanation furnished for not filing
the same alongwith the charge-sheet – After five years of dismissal
of the application, another application u/s. 173 (2)(5)(a) Cr.P.C
filed for bringing the authorisation on record – Dismissed on the
ground of res judicata – Petition u/s 482 seeking to bring the             D
authorisation on record, dismissed by High Court – On appeal,
held: Substantive justice must always prevail over procedural or
technical justice – Procedural lapse cannot be placed at par with
what is or may be substantive violation of law – The failure to bring
the authorisation on record was a procedural lapse – The
                                                                           E
consequences of disallowing the procedural lapse was substantive
in nature – The High Court in exercise of inherent jurisdiction, in
the interest of justice and to prevent abuse of process of law, ought
to have allowed bringing of authorisation order on record –
Prosecution is permitted to bring the authorisation order for
investigation on record – However, in the facts of the case, possibility   F
of deliberate omission to bring on record authorisation order, to
favour the accused, cannot be ruled out – CBI directed to hold
inquiry to determine the reason for delay in approaching the court.
      Allowing the appeal with directions, the Court
      HELD: 1. The truth and veracity of the authorisation order           G
not being in issue, the failure to file it along with the charge-
sheet was an omission constituting a procedural lapse only. The
rejection of the first application on 11.03.2008 not having been
ordered on merits, but for failure to furnish a satisfactory
                                                                           H
                                 287
288            SUPREME COURT REPORTS                       [2019] 7 S.C.R.


A     explanation for the delay, Section 362 Cr.P.C has no relevance
      on facts. Therefore, there was no impediment in the appellant
      seeking to bring the same on record subsequently under Section
      173(2)(5)(a) of Cr.P.C. The consequences of disallowing the
      procedural lapse were substantive in nature. [Para 7] [291-D-F]
B           1.2 The failure to bring the authorisation on record, as
      observed, was more a matter of procedure, which is but a
      handmaid of justice. Substantive justice must always prevail over
      procedural or technical justice. To hold that failure to explain
      delay in a procedural matter would operate as res judicata will be
      a travesty of justice considering that the present is a matter
C     relating to corruption in public life by holder of a public post.
      The rights of an accused are undoubtedly important, but so is the
      rule of law and societal interest in ensuring that an alleged offender
      be subjected to the laws of the land in the larger public interest.
      To put the rights of an accused at a higher pedestal and to make
D     the rule of law and societal interest in prevention of crime,
      subservient to the same cannot be considered as dispensation of
      justice. A balance therefore has to be struck. A procedural lapse
      cannot be placed at par with what is or may be substantive violation
      of the law. [Para 9] [292-A-C]
E           1.3 The High Court was exercising inherent jurisdiction in
      the interest of justice and to prevent the abuse of the process of
      law. In the facts and circumstances of the case, the High Court
      ought to have exercised its inherent powers to allow the bringing
      of the authorisation order on record rather than to have adopted
      a narrow and pedantic approach to its own jurisdiction given the
F     provisions of Section 173(2)(5)(a) Cr.P.C. Therefore, the
      prosecution is permitted to bring the order of authorisation for
      investigation on record. [Paras 11 and 12] [292-F-G]
            Bihar State Electricity Board v. Bhowra Kankanee
            Collieries Ltd., 1984 Supp SCC 597 ; Sakshi v. Union
G           of India (2004) 5 SCC 518 : [2004] 2 Suppl. SCR 723
            – relied on.
            Central Bureau of Investigation v. R.S. Pai and another,
            (2002) 5 SCC 82 : [2002] 2 SCR 889 – referred to.

H
            STATE REP. BY INSP. OF POLICE CBI v.                         289
                   M. SUBRAHMANYAM

       2. The charge-sheet was submitted on 05.04.2005. No               A
explanation has been furnished as to why the prosecution
exhibited such laxity in seeking to bring the authorisation order
on record nearly three years later on 07.01.2008. If that were
not enough, after rejection of the same on 11.03.2008, the
prosecution again remained silent till it filed the fresh application
                                                                         B
under Section 173(2)(5)(a) as late as on 21.06.2013, with no
explanation furnished for the same. Considering the matter from
the administrative perspective, a lapse on the first occasion may
be an inadvertent error but the repeat of the same lapse raises
serious doubts and issues whether it was inadvertent or
deliberate. The present was a case relating to corruption in public      C
life by a public servant owing allegiance to the Constitution. The
possibility, in the facts of the present case, cannot be entirely
ruled out of a deliberate omission, to favour the accused.
Therefore it is directed that a senior officer of the Central Bureau
of Investigation, shall hold an inquiry and determine the
                                                                         D
circumstances under which the initial lapse took place, and the
reason for delay in approaching the court. The inquiry shall also
encompass the passage of nearly 5 years after rejection of the
same, and the belated attempt in 2013 only. Responsibility must
be fixed in the report and adequate disciplinary action be initiated
and concluded against the concerned persons in accordance with           E
law. [Paras 13 and 14] [293-F-H; 294-A-D]
                       Case Law Reference
[2002] 2 SCR 889                referred to             Para 3
1984 Supp SCC 597               relied on               Para 8           F
[2004] 2 Suppl. SCR 723         relied on               Para 10
      CRIMINAL APPELLATE JURISDICTION : Ciminal Appeal No.
853 of 2019.
      From the Judgment and Order dated 06.08.2018 of the High Court
                                                                         G
of Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh in Criminal Petition No. 7904 of 2013.
     Vikramjit Banerjee, ASG, Ms. Praveena Gautam, Ms. Seema
Bengani, Anas Zaidi, Arvind Kumar Sharma, Advs. for the Appellant.
                                                                         H
290             SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           P. S. Narasimha, Sr. Adv., M. Srinivas R. Rao, Sarath S. Janaradan,
      K. Narsimbha Murthy, Rahul T., V. C. Shukla, Sundoora VNL., Abid Ali
      Beeran P, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            NAVIN SINHA, J. 1. Leave granted.
B
             2. The Inspector of Police, Central Bureau of Investigation,
      Vishakhapatnam, is aggrieved by order dated 06.08.2018 of the High
      Court, dismissing the application under Section 482, Cr.P.C. by the
      prosecution to bring on record the order passed by the Superintendent of
      Police, CBI, Visakhapatnam, under Section 17 of the Prevention of
C     Corruption Act, 1988 (hereinafter referred to as ‘the Act’), authorising
      Sri V.K.C. Reddy, the then Deputy Superintendent of Police, CBI,
      Visakhapatnam, to investigate against the respondent, an Income Tax
      Officer, Visakhapatnam, pursuant to an F.I.R. lodged under Sections
      13(2) read with 13(1)(c) of the Act on allegation for possessing moveable
D     and immoveable properties disproportionate to the known sources of
      income.
             3. Learned counsel for the appellant submits that the order of
      authorisation for investigation could not be filed along with the charge-
      sheet due to inadvertence. It was subsequently sought to be filed under
E     Section 242 Cr.P.C. by Crl.M.P. No.26 of 2008 much prior to the
      commencement of the trial. The application was not rejected on merits
      but on the ground that no satisfactory explanation had been furnished
      for the delay in submission. Crl.M.P. No.560 of 2013 was then filed
      afresh under Section 173(2)(5)(a), Cr.P.C. to bring the authorisation on
      record. It was erroneously dismissed applying the principles of res judicata
F     even though there had been no adjudication on merits earlier. The truth
      and veracity of the authorisation was not in dispute. The interest of
      justice therefore required that the authorisation should have been allowed
      to be brought on record. The issue pertained only to a matter of procedure.
      Section 362 Cr.P.C. was wrongly relied upon by the trail judge. Reliance
G     was placed on Central Bureau of Investigation vs. R.S. Pai and
      another, (2002) 5 SCC 82.
            4. Learned counsel for the respondent contended that the earlier
      application under Section 242 Cr.P.C. having been dismissed,
      appropriately a revision or appeal ought to have been preferred. The
      order of rejection having attained finality no fresh application for the
H
             STATE REP. BY INSP. OF POLICE CBI v.                              291
            M. SUBRAHMANYAM [NAVIN SINHA, J.]

same purpose could have been filed quoting another provision of the            A
Code. Serious prejudice shall be caused to the respondent, affecting the
course of justice if it were to be permitted at this stage.
      5. We have considered the submissions on behalf of the parties
and opine that the appeal deserves to be allowed for reasons enumerated
hereinafter.                                                                   B
       6. FIR No.RC 35(A)/2002-CBI/ACB/VSP (CC-03 of 2005) was
registered against the respondent on 01.11.2002 under the Act. Charge-
sheet was filed on 05.04.2005. On 07.01.2008, an application was filed
on behalf of the prosecution under Section 242 Cr.P.C. to bring on record
the authorisation for investigation issued to Shri V.K. Reddy. On              C
11.03.2008 it was dismissed on the ground that no proper explanation
had been furnished for not filing the same along with the charge-sheet.
Subsequently, on 21.06.2013, the authorisation was again sought to be
brought on record by the prosecution invoking Section 173(2)(5)(a) of
the Code giving rise to the impugned orders.
                                                                               D
       7. The truth and veracity of the authorisation order not being in
issue, the failure to file it along with the charge-sheet was an omission
constituting a procedural lapse only. The rejection of the first application
on 11.03.2008 not having been ordered on merits, but for failure to furnish
a satisfactory explanation for the delay, Section 362 Cr.P.C has no
relevance on facts. We are, therefore, of the opinion that there was no        E
impediment in the appellant seeking to bring the same on record
subsequently under Section 173(2)(5)(a) of the Code. The consequences
of disallowing the procedural lapse were substantive in nature.
      8. In Bihar State Electricity Board vs. Bhowra Kankanee
Collieries Ltd., 1984 Supp SCC 597, the Court opined:                          F
      “6. Undoubtedly, there is some negligence but when a substantive
      matter is dismissed on the ground of failure to comply with
      procedural directions, there is always some element of negligence
      involved in it because a vigilant litigant would not miss complying
      with procedural direction….. The question is whether the degree          G
      of negligence is so high as to bang the door of court to a suitor
      seeking justice. In other words, should an investigation of facts
      for rendering justice be peremptorily thwarted by some procedural
      lacuna?”
                                                                               H
292             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A             9. The failure to bring the authorisation on record, as observed,
      was more a matter of procedure, which is but a handmaid of justice.
      Substantive justice must always prevail over procedural or technical
      justice. To hold that failure to explain delay in a procedural matter would
      operate as res judicata will be a travesty of justice considering that the
      present is a matter relating to corruption in public life by holder of a
B
      public post. The rights of an accused are undoubtedly important, but so
      is the rule of law and societal interest in ensuring that an alleged offender
      be subjected to the laws of the land in the larger public interest. To put
      the rights of an accused at a higher pedestal and to make the rule of law
      and societal interest in prevention of crime, subservient to the same
C     cannot be considered as dispensation of justice. A balance therefore
      has to be struck. A procedural lapse cannot be placed at par with what
      is or may be substantive violation of the law.
            10. In Sakshi vs. Union of India, (2004) 5 SCC 518, the Court
      observed:
D           “31.…. There is major difference between substantive provisions
            defining crimes and providing punishment for the same and
            procedural enactment laying down the procedure of trial of such
            offences. Rules of procedure are handmaiden of justice and are
            meant to advance and not to obstruct the cause of justice. It is,
E           therefore, permissible for the court to expand or enlarge the
            meanings of such provisions in order to elicit the truth and do
            justice with the parties.”
             11. The High Court was exercising inherent jurisdiction in the
      interest of justice and to prevent the abuse of the process of law. In the
F     facts and circumstances of the case, the High Court ought to have
      exercised its inherent powers to allow the bringing of the authorisation
      order on record rather than to have adopted a narrow and pedantic
      approach to its own jurisdiction given the provisions of Section
      173(2)(5)(a), Cr.P.C., as observed in R.S. Pai (supra):

G           “7. From the aforesaid sub-sections, it is apparent that normally,
            the investigating officer is required to produce all the relevant
            documents at the time of submitting the charge-sheet. At the same
            time, as there is no specific prohibition, it cannot be held that the
            additional documents cannot be produced subsequently. If some
            mistake is committed in not producing the relevant documents at
H
             STATE REP. BY INSP. OF POLICE CBI v.                                293
            M. SUBRAHMANYAM [NAVIN SINHA, J.]

       the time of submitting the report or the charge-sheet, it is always       A
       open to the investigating officer to produce the same with the
       permission of the court. In our view, considering the preliminary
       stage of prosecution and the context in which the police officer is
       required to forward to the Magistrate all the documents or the
       relevant extracts thereof on which the prosecution proposes to
                                                                                 B
       rely, the word “shall” used in sub-section (5) cannot be interpreted
       as mandatory, but as directory. Normally, the documents gathered
       during the investigation upon which the prosecution wants to rely
       are required to be forwarded to the Magistrate, but if there is
       some omission, it would not mean that the remaining documents
       cannot be produced subsequently. Analogous provision under                C
       Section 173(4) of the Code of Criminal Procedure, 1898 was
       considered by this Court in Narayan Rao v. State of A.P. and it
       was held that the word “shall” occurring in sub-section (4) of
       Section 173 and sub-section (3) of Section 207-A is not mandatory
       but only directory. Further, the scheme of sub-section (8) of Section
                                                                                 D
       173 also makes it abundantly clear that even after the charge-
       sheet is submitted, further investigation, if called for, is not
       precluded. 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        E
       accused. Hence, the impugned order passed by the Special Court
       cannot be sustained.”
      12. The appeal will, therefore, have to be allowed and the
prosecution is permitted to bring the order of authorisation for investigation
on record, which we do hereby order.                                             F
       13. But the matter shall not end there. As noticed, the charge-
sheet was submitted on 05.04.2005. No explanation has been furnished
as to why the prosecution exhibited such laxity in seeking to bring the
authorisation order on record nearly three years later on 07.01.2008. If
that were not enough, after rejection of the same on 11.03.2008, the             G
prosecution again remained silent till it filed the fresh application under
Section 173(2)(5)(a) as late as on 21.06.2013, with no explanation
furnished for the same. We have no hesitation in observing that
considering the matter from the administrative perspective, a lapse on
the first occasion may be an inadvertent error but the repeat of the same
                                                                                 H
294             SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A     lapse raises serious doubts and issues whether it was inadvertent or
      deliberate. The present was a case relating to corruption in public life
      by a public servant owing allegiance to the Constitution. The charge-
      sheet was filed in 2005. The trial has successfully been thwarted at a
      very nascent stage for long years. The possibility, in the facts of the
      present case, cannot be entirely ruled out of a deliberate omission, to
B
      favour an accused.
             14. We therefore direct that a senior officer of the Central Bureau
      of Investigation, Visakhapatnam shall hold an inquiry and determine the
      circumstances under which the initial lapse took place, and the reason
      for delay in approaching the court. The inquiry shall also encompass the
C     passage of nearly 5 years after rejection of the same, and the belated
      attempt in 2013 only. Responsibility must be fixed in the report and
      adequate disciplinary action be initiated and concluded against the
      concerned persons in accordance with law. Compliance report shall be
      filed before this Court along with conclusions of the inquiry and action
D     taken, within a period of three months from today.


      Kalpana K. Tripathy                             Appeal allowed with directions.



E




F




G




H