Final Order 1

Order Details: Order below Ex-1
Pdf Text: 1
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
47TH COURT, ESPLANADE, MUMBAI.
C.C. No.4668/Misc./2023
Kushal Shripal Singh. ..Applicant.
Vs.
The State of Maharashtra
(EOW C.R.No. 58 of 2021)
C.C. No. 651/PW/2021 ..Respondent.
ORDER BELOW APPLICATION
1. Present application is placed on record by the accused
Kushal Shripal Singh under Section 91 of the Code of Criminal
Procedure, 1973. In the said application accused stated that he is
arraigned as an accused in FIR No.58 of 2021 registered with
EOW for the offence punishable under Sections 409, 465, 467, 468
and 471 read with Section 120(B) of the Indian Penal Code. He
further submits that present case came to light in the month of
May-June, 2021. Thereafter he came to be arrested.
2. He further stated that informant company is listed
government holding, where Annual Audit Report is prepared for
each office. Perusal of the Audit Report of March, 2021 and
subsequently of March, 2022 would show that the complainant has
suffered zero loss as alleged by them.
-- 1 of 7 --
2
3. As such, the accused stated that there is no
misappropriation of company funds. Said fact can be verified from
the above mentioned Audit Report of the last two years. The
accused further stated that his contentions can be substantiated by
the perusal of documents in entirety and not just by relying on
documents produced by the informant and investigating agency.
As such applicant prayed to allow his application and requested to
direct investigating agency to produce following documents listed
in para 24 of his present application i.e.
1) Audit Financial Report of office code 500100 for financial year
2019-2020, 2020-2021 and 2021-2022.
2) Comments of Statutory auditor on financial fraud related to this
case in Audit Financial Report for financial year 2021-2022.
3) Transaction wise payments received or payments made for co-
insurance settlements done on or after 25.05.2021 for transaction
occurred on or before 25.05.2021 of office code 500100.
4) Accounting vouchers, journal vouchers passed by the Head
Office of UIICL and office code 500100
5) A payment of more than 70 lakhs received by office code
500100 somewhere in the month of April-May, 2021 from National
Insurance Co. Ltd, copy of accounting voucher alongwith journal
vouchers and transactions set off against this payment.
6) Report of so-called fraud reported to all the shareholders.
7) All the recoveries made from any of the employees in the
present case and the report of the same.
-- 2 of 7 --
3
4. To this application, Investigating officer filed his say.
He opposed the application contending that already investigating
agency has engaged independent Forensic Auditor for the
verification and confirmation of the information as to the points
mentioned by the accused in his application. He also contended
that further investigation in the matter is going on. On such
counts, he prayed for rejection of application.
5. In support of application, learned advocate for
applicant submits that documents mentioned in the para 24 of
present application are crucial documents which supports the
applicant’s defence and goes to prove his innocence. As such, he
submits to issue directions to the Investigating officer asking him
to produce those documents as those are necessary. Hence, he
prayed to allow the application.
6. On the other hand, learned APP and Investigating
officer submit that this is not a proper stage for issuing directions
to produce documents under Section 91 of the Code of Criminal
Procedure. As such they prayed for rejection of application.
7. I have given thoughtful consideration to the
submissions advanced by either side. Likewise I have also gone
through following judgments quoted by applicant in his
application.
-- 3 of 7 --
4
a) State of U.P. Vs. Bhagwant Kishore Joshi, AIR 1964 SC 221 in
which Hon’ble Supreme Court held that although accused would
have no right of hearing, however, duty is cast on the investigating
agency to conduct fair and impartial investigation.
b) Babu Bhai Vs. State of Gujarat (2010)12 SCC 254 in which
Their Lordships of Hon’ble Supreme Court laid down that
investigation must be fair, transparent and judicious as it is the
minimum requirement of rule of law. The Investigating agency
cannot be permitted to conduct investigation in a tainted and
biased manner. Where non-interference of the court would
ultimately result in failure of justice, the court must interfere. In
such a situation, it may be in the interest of justice that
independent agency chosen by the High Court makes a fresh
investigation.
c) Nirmal Singh Kehlon Vs. State of Punjab (2009) 8 SCC 441 in
which Hon’ble Supreme Court held that fair investigation and fair
trial are concomitant to preservation of fundamental right of an
accused under Article 21 of the Constitution of India.
d) Gangadhar Vs. State of Madhya Pradesh, Criminal Appeal No.
504 of 2020 in which Hon’ble Supreme Court held that right to fair
investigation guaranteed to accused under Article 21 of the
Constitution of India.
-- 4 of 7 --
5
8. In the case at hand, the accused prayed to Court to
issue directions to the Investigating officer to produce documents
No.1 to 7 referred in para 24 of his application. Said application is
under Section 91 of the Code of Criminal Procedure. Thus
considering aforesaid aspect, the above cited judgments of the
Hon’ble Supreme Court relied upon by the accused are not
applicable to the case at hand. It is for the reason that facts of the
cases cited above and case in hand are altogether different. In the
cases cited above, Hon’ble Supreme Court held that fair
investigation is right of the accused guaranteed under Article 20
and 21 of Constitution of India. However in the case at hand
accused is seeking directions from the Court to Investigating
officer for production of certain documents that too, prior to
commencement of trial. It is not the case of the accused that the
Investigating officer collected above referred documents during the
course of investigation. Those documents for which accused sought
directions are not forming part of the investigation. Those
documents are yet not collected by the Investigating officer. So the
question of granting request of the accused does not arise. So the
accused is not entitled to grant his request. It is for the reason that
as laid down by Hon’ble Supreme Court in the case of State of
Orissa Vs. Debendra Nath Pathi (2005)1 SCC 568. Defence of the
accused cannot be considered prior to commencement of the trial.
Apart from that Hon’ble Bombay High Court in para 30 of the
judgment in the case of Mr. Ravi Laxman Naik Vs. Police Inspector,
-- 5 of 7 --
6
Crime Branch Police Station, Ribandar, Tiswadi, Goa laid down
that, it is to be borne in mind that under Section 91 of CrPC a
Police officer may take recourse by summoning any person to
produce any document during investigation or move the Court for
summoning and production of document in possession of any
person during trial or enquiry. As far as the accused is concerned,
his entitlement to an order under Section 91 of CrPC would clearly
be considered at the stage of defence but not prior to it for the
simple reason that it is to the satisfaction of the Court at a
particular stage that such a document is necessary and desirable to
be produced during tiral. Thus the contention of Mr. De Sa that
the CDR’s and mobile tower locations of the raiding party members
are necessary for deciding bail application and even for the
purpose of framing of charge cannot be considered at this stage as
it is purely in defence of the accused/petitioner which is not
necessary or desirable at this stage. However, at the time of
defence of the accused, if it is found necessary and desirable, the
Court may consider such a request.
9. Thus for the entire reasons discussed above and
considering the ratio laid down in the case of Ravi Laxman Naik
discussed above application is not tenable. So it is liable to be
rejected. Hence, the following order.
-- 6 of 7 --
7
ORDER
Application is rejected.
Sd/-
(S.P. Shinde)
Addl.Chief Metropolitan Magistrate,
Date :29.12.2023 47th Court, Esplanade, Mumbai.
-- 7 of 7 --