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 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 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 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 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 not being in issue, the failure to file it along with the chargesheet 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. 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]
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 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 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]
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 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 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.
2. 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 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. 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 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 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 law. [Paras 13 and 14] [293-F-H; 294-A-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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