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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO.5897 OF 2013

Manjeet Singh Khera            ….  Petitioner

Versus

State of Maharashtra  ….Respondent

O R D E R

K.S. Radhakrishnan, J.

1. We are, in this case, concerned with the question whether  

the  prosecution  is  bound  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 moved  

an  application  before  the  Special  Sessions  Court  of  Greater

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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 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 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 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.

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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  that  

application  and  after  collecting  sufficient  materials,  the  

prosecution  lodged  first  information  report  and  thereafter  

investigation was carried out.   Further  it  was pointed out  that  

prosecution  cannot  examine  the  person  who  gave  the  

complaint/application,  otherwise  no  person  would  pass  on  any  

secret information to the Anti Corruption Bureau.

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  been  

preferred.

6. Shri  Amol  Chitale,  learned  counsel  appearing  for  the  

petitioner submitted that the petitioner is not interested in getting

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the name of the person who made the complaint, but wanted 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 in  

V.K. Sasikala v.  State Represented by Superintendent of  

Police (2012)  9  SCC  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 in the  

case of prosecution as well.

7.  Since the entire emphasis of the counsel for the petitioner is  

on  V.K.Sasikala  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 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

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custody of the Court.  Demand was made after the prosecution  

had led  the  evidence and at  the  stage  of  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  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  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 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 concerned to  exclude  any  part  of  the  statement  or  documents  forwarded under Section 173(5) from the copies to be  granted to the accused.

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14.The court having jurisdiction to deal with the  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 concerned is required to furnish to the  accused copies of the following documents:

1. The police report; 2.The  first  information  report  recorded  under  

Section 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 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;

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 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 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  of the expression “Magistrate” as under various special

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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  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.”

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 on the 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 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

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situation  is  pointed  out  by  the  accused  and  those  documents  

which were supporting the accused and have not been forwarded  

and are not on 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 forwarded 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  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:

“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 non-compliance  with the provisions of Section 207 Cr.P.C. and would  travel beyond the confines of the strict language of

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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 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 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 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  criminal  jurisprudence  have to be balanced. 23.1.   xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”

9. Keeping in mind the principle of law and ratio laid down 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

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to  the  Anti-Corruption  Bureau  which  only  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 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 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 support the case of the petitioner  

in  any  manner.   Hence  the  judgment  of  V.K.Sasikala (supra)  

would have no application to the instant case.

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10. We state at the cost of repetition that the prosecution has  

categorically  taken the stand that  they do not  propose to 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 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  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 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

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the  complaint/application  and  its  contents  having  been  relied  

upon by the defence during cross-examination of PW1.   

11. We also emphasize that in the instant case the 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  

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 reason  

to interfere with the order of the Bombay High Court and dismiss  

this special leave petition.

………………………………..J. (K.S. Radhakrishnan)

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……………………………..J. (A.K. Sikri)

New Delhi August 21, 2013