Holding

The word 'shall' in Section 173(5) of the CrPC is directory, and the prosecution may, with court permission, produce additional documents even after the charge sheet has been filed.

Summary

The Central Bureau of Investigation (CBI) filed a charge sheet in a fraud case and later sought the Special Court's permission to produce additional documents that were gathered during the investigation but not submitted with the charge sheet. The Special Court rejected the application, prompting the CBI to appeal to the Supreme Court. The Court examined Sections 173(5) and 173(8) of the Code of Criminal Procedure, 1973, and held that the word 'shall' in sub‑section (5) is directory, not mandatory, allowing the prosecution to produce omitted documents with court permission. It further noted that sub‑section (8) expressly permits further investigation after a charge sheet is filed, so additional evidence can be introduced without prejudice to the accused. Consequently, the Supreme Court set aside the Special Court's order and allowed the CBI's application for production of the additional documents.

Issues considered

Whether the prosecution may produce additional documents gathered during investigation after the charge sheet has been filed under Section 173 of the Code of Criminal Procedure, 1973
Whether the term 'shall' in Section 173(5) imposes a mandatory requirement to submit all documents at the time of filing the charge sheet

Legislation cited

Code of Criminal Procedure, 1973s. 173(5), s. 173(8)

Subjects

Section 173charge sheetadditional documentscriminal procedureinterpretation of 'shall'preliminary stage of prosecutionevidence production

Judgment

CENTRAL BUREAU OF INVESTIGATION A
v.
R.S. PAI AND ANR.

APRIL 3, 2U02

[M.B. SHAH, BRIJESH KUMAR AND D.M. DHARMADHIKARI, JJ.] B

Code of Criminal Procedure, 1973:

Section 173-Scope and interpretation of-Criminal trial-Charge
sheet-Submission of-Subsequent thereto production ofadditional documents C
gathered during investigation-Held, permissible in such a case no prejudice
is caused to accused-Word 'shall' in Section 173 (5) held not mandatory.

In a criminal trial, CBI filed charge sheet against the accused persons.
Subsequent thereto, CBI filed an application seeking permission to produce
additional documents which were gathered during investigation but were not D
produced before the Court The Special Court rejected the application of CBI.

In appeal to this Court on the question whether prosecution can produce ·
additional documents which are gathered during investigation after submitting

- charge sheet under Section 173 of the Code of Criminal Procedure, 1973:

Allowing the appeal preferred by CBI, the Court
E

HELD: 1. It is apparent from sub-sections (5) and (8) of Section 173 of
-~
the Code of Criminal Procedure, 1973 that normally, the investigating Officer
is required to produce all the relevant docnments at the time or submitting
the charge sheet. At the same time, as there is no specific prohibition, it cannot F
be said that the additional documents cannot be produced subsequently. If
some mistake is committed in not producing the relevant documents at the
time of submitting the report or charge sheet, it is always open to the
investigating officer to produce the same with the permission of the court
Considering the preliminary stage of prosecution and the context in which G
police officer is required to forward to the magistrate all the documents or
the relevant extracts thereof on which prosecution proposes to rely, the word
'shall used in sub-section (5) cannot be interpreted as mandatory, but as
directory. [893-D-F)

2. Further, the scheme of sub-section (8) of Section 173 also makes it H
889
890 SUPREME COURT REPORTS [2002] 2 S.C.R.

A abundantly clear that even after the charge sheet is submitted, further
investigation, if called for, is not precluded. If further ;n_vestigation 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 investigation. In such cases, there cannot be any prejudice to the accused. \_
·F
Hence, the impugned order passed.by the Special Court cannot be sustained.
B [893-G-H; 894-A]

Narayan Rao v. The State ofAndhra Pradesh, [1958) SCR 283, referred
to.

C CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
I 045 of 2000.

From the Judgment and Order dated 26.7.2000 of the Special Court
(Trial of Offences Relating to Transactions in Securities) at Mumbai in Misc.
Application No. 338 of 2000 in Special Case No. 3 of 1997.
D
P.P. Malhotra, Tara Chandra Sharma, P. Parmeswaran and B. Krishna
Prashad for the Appellant.

Pravin, Yashank Adhyaru, M.P. Rao and Ms. Niharika Bahl for J.S.
Wad & Co. for the Respondents.
E
The Judgment of the Court was delivered by
-~.-
SHAH, J. Short question is-whether prosecution can produce additional
documents which are gathered during investigation, after submitting charge-
sheet under Section 173 of the Code of Criminal Procedure, 1973?
F
The Special Court (Trial of Offences Relating to Transactions in f
~J
Securities) at Bombay by judgment and order dated 26th July, 2000, rejected
Miscellaneous Application No. 338 of 2000 in Special Case No.3 of 1997 I
filed by the Central Bureau of Investigation (CBI) for production of additional
documents in a case where application for discharging the respondents was
G filed. Aggrieved by the said judgment, the CBI has preferred this appeal.

The prosecution story in brief is that-during the period 2.4.1992 to
20.5.1992, the FIM Division, Mumbai of Syndicate Bank received funds
aggregating to Rs.132 .23 crores for Portfolio Management from Oil Industries
H Development Board, New Delhi. It was alleged that R. Sundaresan, the then
Divisional Manager of the Bank and other bank officials conspired during the
C.B.I. v. R.S. PAI [SHAH, J.] 891
• above said period at Mumbai along with Directors and office bearers of A
Mis Fair Growth Investments Ltd. and Mis Fair Growth Financial Services
Ltd. and by dishonestly and fraudulently abusing their position as a public
servant caused wrongful gain to private parties and corresponding loss to the
Syndicate Bank. It is also alleged that an amount of Rs.90.58 crores was
invested for the purpose of shares/debentures from Mis Fair Growth Financial
Services Ltd. and Ors. without specific authorization from the Head Office B
of the Bank and without adhering to the guidelines of Reserve Bank of India
(RBI) and the SEBI. On 2.6.1993, on the written complaint of the Chief
Vigilance Officer of the Bank, case No. RC l(BSC)/93-Mum. was registered
under Section 120-B read with Section 420 !PC and Section 13(2) read with
Section"J3(l)(d) of Prevention of Corruption Act, 1988 against R. Sundaresan C
Divisional Manager of Syndicate Bank and K.R.N. Shenoy, Managing Director
of Mis Fair Growth Investments Ltd. After investigation, charge-sheet was
filed by the CBI in the Special Court in Special Case No.3/97 at Bombay
against respondent nos. I and 2. On 27 .1.2000, respondent nos. I and 2 filed
discharge application bearing Misc. Application No.51 of 2000 and Misc. D
Application No.168 of 2000 before the Special Court. Pending hearing those
applications, appellant sought production of additional documents, which were
gathered during investigation but were not produced before the Court. That
application was rejected. Hence, this appeal.

Mr. P.P. M~lhotra, learned senior counsel for the appellant submitted E
that the order passed by the Special Judge is on the face of it illegal and
contrary to the provisions of Section 173 (5) of the Code of Criminal
Procedure. It is his contention that normally the Investigating Officer is
required to produce all the relevant documents at the time of submitting
report, but the Investigating Officer committed mistake in not producing F
certain documents as in his opinion those documents were not relevant
Thereafter, it was found that those documents were relevant so as to connect
the accused with tl_te crime. It is submitted that arguments for framing of the
charge were not finally heard and, therefore, there was no Justifiable reason
to reject the application for production of additional documents.
G
As against this, Mr. P. v. Adhyaru, learned senior counsel for respondent
no.2 submitted that under Section 173 (5) Cr.P.C., the Investigating Officer
has to produce all the documents at the time of submitting the report. Therefore,
the order passed by the Special Court cannot be said, in any way, to be illegal
or erroneous.
892 SUPREME COURT REPORTS [2002) 2 S.C.R.

A For appreciating the rival contentions, we would first refer to the "
relevant part of Section 173 of the Cr.P.C., which read as under:-

'' 173 Report of police officer on completion of investigation.--(!)
Every investigation under this Chapter shall be completed without
unnecessary delay.
B
(2) (i)As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form .A

prescribed by the State Government, stating-

c (a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the
circumstances of the case;
(d) whether any offence. appears to have been committed and, if so, .A.
D by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with ~
or without sureties;
1
E (g) whether he has been forwarded in custody under Section 170.

(ii) The officer shall also communicate, in such manner as may be
prescribed by the State government, the action taken by him to the
person, if any, by whom the information relating to the commission
o.f the offence was first given.
F
(3) ······
(4) ..... .

(5) When such report is in respect of a case to which Section 170
-G applies, the police officer shall forward to the Magistrate a~ong with
the report-
(a) all documents or relevant extracts thereof on which the prosecution
/ , proposes to rely other than those already sent to the Magistrate
during investigation;
H (b) the statements recorded under Section 16 l of all the persons whom
C.B.l. v. R.S. PAI [SHAH, J.] 893

the prosecution proposes to examine as its witnesses. A
(6) ....

(7) ....

(8) Nothing in this section shall be deemed to preclude further B
investigation in respect of an offence after a report under sub-section
(2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station obtains further
evidence, oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the form
prescribed; and the provisions of sub-sections (2) to (6) shall, as far C
as may be, apply in relation to such report or reports as they apply
in relation to a report forwarded under sub-section (2)."

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 D
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 the time of submitting the report or·charge-sheet, it is always
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 E
the context in which Police Officer is required to forward to the Magistrate
all the documents or the relevant extracts thereof on which prosecution
proposes to 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 me$1 F
that the remaining documents cannot be produced subsequently. Analogous
provision under Section 173(4) of the Code of Criminal Procedure, 1898 was
considered by this Court in Narayan Rao v. The State of Andhra Pradesh,
[1958) SCR 283 at 293 and it was held that the word 'shall' occurring in sub-
section 4 of Section I 73 and sub-section 3 of Section 207A is not mandatory G
but only directory. Further, the scheme of sub-section (8) of Section 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
investigation. In such cases, there can not be any prejudice to the accused. H
894 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Hence, the impugned order passed by the Special Court cannot be sustained.

In the result, the appeal is allowed and the impugned judgment and
order passed by the Special Court is set aside. The application filed by the
appellant for production of additional documents is allowed. The Special
Court to proceed with the matter in accordance with law.
B
T.N.A. Appeal allowed. I

A I.