Mr. Hitender Kapur and Mr. Yatin, Advocates v. CENTRAL BUREAU INVESTIGATION

Judgment

1. The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter “CrPC”) [now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter “BNSS”)], seeking setting aside of the order dated 27th January, 2023 (hereinafter “impugned order”) passed by the learned Special Judge (PC Act), Rouse Avenue Courts, New Delhi (hereinafter “ASJ/Trial Court”) in CC No. 104/2019 arising out of R.C. No. 16A/2017. FACTUAL MATRIX 2. On 7thApril, 2017, the Deputy General Manager, Bank of Baroda, New Delhi, lodged a complaint before Superintendent of Police, Central Bureau of Investigation, Anti-Corruption Branch regarding the financial Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 irregularities at Bank of Baroda, Azadpur Branch, Delhi during the demonetization period. The complaint alleged that certain fraudulent transactions had taken place, involving the misuse of Specified Bank Notes i.e. demonetized Rs. 500 and Rs. 1000 notes. 3. Based on the bank‟s complaint, the respondent registered R.C. No. 16(A)/2017 on 7th April, 2017. Initially, the investigation did not name the petitioner, however, following a subsequent complaint by the bank dated 21st April, 2017, the respondent conducted a detailed inquiry which ultimately led to the implication of the petitioner in the case. 4. During the investigation, the respondent examined bank records and statements of officials and customers, revealing that the petitioner, who was employed as a Single Window Operator – A (SWO-A) at Bank of Baroda, Azadpur Branch, Delhi was involved in falsifying cash deposits slips and altering transactions records. It was alleged that he replaced valid currency deposited by customers with demonetized notes, thereby, enabling their unauthorized exchange in violation of RBI regulations. 5. Based on the findings of the investigation, the respondent filed a chargesheet against the petitioner for the offences punishable under Sections 409, 420, 468, 471 and 201 of the Indian Penal Code, 1860 (hereinafter “IPC”) along with Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter “PC Act”). 6.

The learned Trial Court took cognizance of the chargesheet and the case proceeded to trial pursuant to which the prosecution examined 14 Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 witnesses in support of its case, and on 9th September, 2022, it closed its evidence. 7. On 12th September, 2022, the petitioner‟s statement under Section 313 of the CrPC was recorded, wherein, he denied the allegations and responded to the evidence presented by the prosecution. Thereafter, evidence was led by the accused/petitioner and the matter was listed for final arguments. 8. Following the aforesaid, final arguments were completed on 2nd December, 2022, and the respondent herein sought time for rebuttal. Thereafter, vide application dated 22nd December, 2022, the respondent herein sought permission to place on record a complete screenshot from the OHDTM menu of the Finacle System (used for processing and recording cash deposit transactions including details such as transaction amounts, timestamps and associated voucher numbers), which was allegedly omitted in the chargesheet. The respondent argued that the screenshot of the said OHDTM menu of the Finacle System, which was already placed on record earlier, was incomplete and that the missing portion contained the crucial details, particularly a transaction number linking the petitioner to the offence. 9. In addition to introducing the complete screenshot, the respondent sought the recall and re-examination of four witnesses arguing that their testimonies were based on incomplete records and that the missing information was necessary for the proper adjudication of the case. 10. The petitioner herein opposed the said application, arguing that the additional document constituted fresh evidence and could only be brought on record through further investigation under Section 173(8) of the CrPC. Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 It was contented that the prosecution was attempting to fill lacunae in its case after realizing shortcomings in its evidence, which is impermissible in law. 11. The petitioner also objected to the recall of witnesses after the closure of prosecution evidence and after final arguments had commenced stating that it was highly prejudicial to his right to a fair trial as it placed him at a severe disadvantage. 12. Subsequently, the learned Trial Court allowed the prosecution‟s application vide the impugned order dated 27th January, 2023, holding that the screenshot was already a part of the record, though incomplete, and its completion did not amount to fresh evidence. The learned Court below further stated that the error in filing an incomplete document was inadvertent. Furthermore, the learned Trial Court permitted the recall of witnesses with the reasoning that their testimonies needed to be examined in light of the additional document and allowing their re-examination would ensure that the court concerned had access to a complete factual record. 13. Aggrieved by the impugned order, the petitioner has preferred the present petition, seeking setting aside of the same. PLEADINGS BEFORE THIS COURT

14. The instant petition has been filed on behalf of the petitioner seeking setting aside of the order dated 27th January, 2023 based on the following grounds: “…c) Because Ld. Trial Court despite referring to judgment titled as Mir Mohd. Omar & Ors. v. State of West Bengal, AIR 1989 SC 1785, wherein Apex Court examined an issue Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 that after the statement of the accused under Section 313 Cr.P.C. had been recorded, the prosecution had filed an application to further examine a witness and the High Court had allowed the same. This Apex Court then held, that once the accused has been examined under Section 313 Cr.P.C., in the event that liberty is given to the prosecution to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for. d) Because Ld. trial Court failed to appreciate that investigating officer cannot obtain fresh documents during the trial without recourse to section 173(8) of Code of Criminal Procedure and in the present case the documents which were sought to be placed on record have been obtained without seeking any permission of court under section 173(8) Cr.P.C. e) Because Ld. Trial court wrongly held that any document can be placed on record by prosecution after closure of evidence under section 311 of Cr.P.C. It is submitted that provisions of section 311 Cr.P.C cannot be invoked by prosecution to place on record additional documents on record. f) Because ld. Trial Court has failed to appreciate that the statement of PW-6, PW-10, PW-12, PW- and PW-14 were recorded way back and it was within the knowledge of prosecution that screen shots relied by the prosecution are not supporting the prosecution story. The prosecution never sought any condonation for filling application and Ld. Trial court of its own wrongly presumed the reasons for delay without any pleadings in the application. It is pertinent to mention that prosecution has not assigned any reason for not placing on record additional documents during the course of prosecution evidence or at the time of filing chargesheet…”

15. The petitioner has also filed the written submissions dated 12th September, 2023, relevant portion of which is hereunder: Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 final argument “…6. That after conclusion of prosecution filed application under section 311 C.r.pc on 22.12.2022 for placing on record certain documents along with certificate under section 65-B of Evidence Act and for re-examination of some of the prosecution witnesses along with one new witness. The said application of prosecution was allowed by the Ld. Trial Court. 7. That the finding of the Ld. Trial Court is perverse and against the provision of law. It is pertinent to mention that no document can be placed on record by the prosecution u/s 311 Cr.pc, as the said provision is only to summon material witness or to examine person present in court. 8. That the Ld. trial Court failed to appreciate that investigating officer cannot obtain fresh documents during the trial without recourse to section 173(8) of Code of Criminal Procedure and in the present case the documents which were sought to be placed on record have been obtained without seeking any permission of court under section 173(8) Crpc. 9. That apart from 173(8) Crpc the documents can be placed on record through a witness u/s 91 Crpc, whereby the witness is directed to produce the documents or other thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings. However admittedly in the present case sec 91 has not been invoked therefore at the stage of conclusion of trial the prosecution cannot place on record any document against the provision of Code Of Criminal Procedure. 10. That it is well settled principle of law that after hearing final arguments the prosecution cannot be permitted to fill lacuna in its case causing grave prejudice to accused…”

16. Rebutting the instant petition, the respondent has filed its reply, and the relevant extracts of the same are as follows: “…(d-e) That the averments made in sub-paras (d & e) of grounds of the petition are vehemently denied being devoid Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 of merit. It is submitted that the contention of the petitioner that the provisions of Cr.PC do not provide for filing of the additional documents after commencement of trial is not convincing for the reason that the documents sought to be placed on record is not any new document but the same is only a complete copy of screenshots which is already on record. It is submitted that the real purpose of criminal trial is to unravel the truth and ascertainment of real facts. It is relevant to mention here that Section 311 Cr.PC empowers the court to allow not only the additional evidence at any stage of trial but also allow any additional document in evidence at any stage of proceedings provided the same is considered essential for just decision of case and does not lead to any prejudice to the accused. f) That the averments made in sub-para (1) of grounds of the petition are vehemently denied being devoid of merits. It is submitted that aforesaid screenshots are essential for the just decision of the case and to render complete justice, therefore the Ld. Trial Court allowed the application of prosecution. Placing on record aforesaid documents does not amount to filling of lacuna by any means & further no prejudice has been caused to the petitioner. (g-i) That in reply to averments made in sub-para (g to i) of grounds of the petition, it is submitted that there is no infirmity in the impugned order and the same is in consonance with the law laid down by the Hon'ble Supreme Court in recent judgment titled Varsha Garg V/s State of M.P & Ors. Citation 2022 Live Law (SC) 662 dated 08.08.2022. It is held that, "The resultant filling of loopholes on account of allowing the application is merely a subsidiary factors & the courts determination of application should only be based on the test of essentiality of evidence. It is the duty of the criminal court to allow the prosecution to correct an error in the interest of justice…” Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 SUBMISSIONS (on behalf of the petitioner)

17. Learned counsel appearing on behalf of the petitioner submitted that the respondent cannot be permitted to fill lacunae in its case after the conclusion of final arguments as the same causes grave prejudice to the accused. It is also submitted that the learned Trial Court failed to appreciate that once the prosecution has closed its evidence, it cannot seek to introduce fresh evidence at a belated stage under the garb of rectification, and thus, the impugned order is bad in law and liable to be set aside. 18. It is submitted that the learned Trial Court disregarded the legal precedents and submissions made by the petitioner, which clearly demonstrated that allowing the prosecution to place additional documents on record at this stage is impermissible in law. 19. It is submitted that the learned Trial Court misinterpreted the ruling in Mir Mohd. Omar & Ors. v. State of West Bengal1 which holds that once the accused has been examined under Section 313 of the CrPC, in such event permitting the prosecution to recall a witness for additional evidence amounts to filling up a lacuna which is not permissible. It is also submitted that despite referring to this judgment in the impugned order, the learned Trial Court wrongly allowed the respondent‟s application, thereby, defeating the settled principles of law. 20. It is submitted that the investigating agency cannot obtain fresh documents during the trial without obtaining permission under Section 173(8) of the CrPC. It is also submitted that in the present case, the 1 AIR 1989 SC 1785 Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 prosecution sought to introduce additional documents that were not part of the original chargesheet and had not been placed on record during the course of prosecution evidence. It is further submitted that since the prosecution failed to seek the requisite permission under Section 173(8) of the CrPC, the introduction of these documents is not permissible under the law. 21. It is submitted that the learned Trial Court erroneously held that additional documents can be placed on record under Section 311 of the CrPC/Section 348 of the BNSS. It is also submitted that the provisions of Section 311 of the CrPC/Section 348 of the BNSS are confined to summoning or recalling witnesses and do not extend to allowing the prosecution to introduce new documentary evidence after the closure of its case. It is further submitted that the learned Trial Court‟s reliance on Section 311 of the CrPC to admit fresh documents is legally flawed and unsustainable. 22. It is submitted that the prosecution was fully aware that the screenshots relied upon did not support its case since the time of recording of statements of relevant witnesses. It is also submitted that despite this knowledge, the prosecution did not take any steps to introduce additional documents during its evidence stage or at the time of filing the chargesheet. It is further submitted that the prosecution also failed to offer any justification for the delay in filing its application and the learned Trial Court erred in presuming the reasons for this delay without any pleadings or explanations being provided by the prosecution. 23. It is submitted that the impugned order suffers from serious legal infirmities and has resulted in a gross miscarriage of justice by permitting Signature Not Verified CRL.M.C. 1309/2023 Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:18.02.2025 17:50:37 the prosecution to introduce new evidence at the final stage of trial, and thus, the learned Trial Court has allowed the prosecution an undue advantage, thereby, prejudicing the petitioner‟s defence. 24. It is submitted that in Swapan Kumar Chatterjee v. CBI2, the Hon‟ble Supreme Court held that allowing additional evidence at a belated stage amounts to unfairly aiding the prosecution. It is also submitted that the said judicial precedent clearly prohibits such attempts by the respondent to bolster its case at a late stage. 25. It is submitted that in Hasanbhai Valibhai Qureshi v. State of Gujarat3, the Hon‟ble Supreme Court clarified that any defective investigation discovered during trial must be cured only through proper further investigation under Section 173(8) of the CrPC and not through ad-hoc measures during the trial. It is also submitted that the failure of the prosecution to adhere to this legal requirement renders the impugned order unsustainable. 26. In view of the foregoing submissions, it is prayed that the instant petition may be allowed and the reliefs be granted as prayed for. (on behalf of the respondent) 27. Per Contra, the learned SPP appearing on behalf of the respondent vehemently opposed the present petition submitting to the effect that the same is liable to be dismissed being devoid of any merit. 28. It is submitted that the document in question, i.e., the complete screenshot of the OHDTM menu from the Finacle System was already a part of the case record, however, the same was filed in an incomplete