Delhi High Court: In a revision petition filed by the Central Bureau of Investigation (CBI) (petitioner), assailing the orders dated 05-03-2018 and 31-03-2018 passed by Special Judge (Prevention of Corruption Act), CBI whereby the Trial Court had directed CBI to prepare a draft of incriminating evidence for putting questions to the accused persons for examination under Section 313 of CrPC and had consequently imposed cost upon CBI for not filing the incriminating evidence. Swarana Kanta Sharma, J., set aside the cost imposed but did not expunge the remarks displaying displeasure expressed by the learned Trial Court regarding the delay in preparation of the questions as the Court could have done so in its judicial domain, however, the irregularity and illegality regarding putting the entire burden of the same on the prosecution which is not permissible under the law have been discussed in the judgment separately and adjudicated upon.
Facts
The present case was registered on the basis of source information that accused S.K. Gosh, Chief Managing Director at Bharat Aluminium Company Limited (BALCO) during the year 1998-99, had hatched a criminal conspiracy with co-accused(s) in order to cause wrongful pecuniary loss to BALCO and to misuse his official position as a public servant for obtaining unlawful gain to co-accused persons.
Pursuant to the investigation, a chargesheet was filed before the Trial Court under Sections 420, 120-B of Penal Code, 1860 (IPC) and Section 13(2)/13(l)(d) of Prevention of Corruption Act, 1988 (PC Act). The Trial Court directed CBI to submit draft questions containing incriminating evidence for examination of accused persons under Section 313 CrPC but observed that the speed of projecting incriminating evidence was too slow on the part of the CBI. On failure to file the draft of the entire incriminating evidence, the Trial Court imposed a cost to the tune of Rs. 16,600/- upon the CBI and passed certain remarks on its conduct.
It was submitted that CBI had filed a further draft of 26 questions in the absence of a regular trial-conducting prosecutor, however, the Trial Court did not find the said questions appropriate and again passed adverse comments on the functioning of the CBI and its officials.
Observations and Analysis
The Court noted that as per the 154th Report of Law Commission of India, the intent of introducing this provision was to ensure that the delay is caused in the trial of cases due to the process of framing of questions under Section 313 CrPC was reduced, by permitting the Courts to take help of prosecutors and defense counsels in framing proper and relevant questions which could be put to an accused, as per the scheme of Section 313 CrPC.
The Court opined that at the stage of examination of an accused under Section 313 of CrPC., the Courts may take the assistance of the prosecutor as well as the defense counsel in the preparation of relevant questions, however, for a just and fair trial, it is apt for the Court to base its examination of an accused on its own assessment about incriminating evidence against the accused which has come on record.
The Court observed that the function and duty of the prosecuting agency are to lead evidence and it is for the Trial Court to ascertain the incriminating material on record based on the testimony of witnesses which includes the examination-in-chief as well as cross-examination and thereafter put the incriminating evidence to an accused. Thus, the petitioner/CBI could not have been found to be at fault for the delay in recording the statement of the accused persons.
On the aspect of the sentences framed in the draft in English language were found to be unsatisfactory in the question draft, the Court said that it is not the mother tongue of the officials drafting the questions and all may not be well-versed and proficient in written or spoken English as to match the expectations and level of those who have mastered the foreign language. English is the language used in Delhi Courts, however, to castigate someone for improper framing of questions in the language in which the officer may not be proficient, does not behold either a Court or any authority.
On the aspect of CBI seeking expungement of certain remarks from the impugned order, the Court noted that the Court could have expressed its displeasure over the slow progress of the case, however, to have commented on the capability and capacity of the entire institution of CBI and how its officers work, and to appear in the Court and take a stand as to whether CBI will work in this fashion was neither the institutional nor administrative work of the concerned Trial Court. Thus, the Court directed to expunge the offending remarks.
Decision
The Court held that the order dated 05-03-2018 insofar as it relates to the imposition of a total cost of Rs. 16,600/- upon CBI, on the ground that CBI was responsible for the delay in recording the statement of the accused under Section 313 CrPC and their irresponsible conduct stands set aside.
[CBI v S.K. Ghosh, 2023 SCC OnLine Del 2383, decided on 18-02-2023]
Advocates who appeared in this case :
Mr. Jeevesh Nagrath, SPP with Ms. Monika Prakash, Advocate for the Petitioner.
