STATE OF MAHARASHTRA Vs. S P MUNJE

JUDGEMENT

(1.) THIS writ petition is filed by Public Prosecutor on behalf of State of Maharashtra, challenging the order passed by Special Judge, Greater Bombay in Special Case No. 21 of 1991 dated 26th August, 1991, whereby the application filed by the Assistant Commissioner of Police, Anti Corruption Bureau, M. S. Bombay and Investigating Officer in A. C. B. C. R. No. 25 of 1990 has been rejected by the Court below.

(2.) THE Assistant Commissioner of Police had in that application requested permission of the Court that the sealed packet containing Microcassette bearing Sr. No. 6121848 of Sony make attached under a formal post trap panchanama in A. C. B. C. R. No. 25 of 1990 be ordered to be taken in the custody of the Court and the Registrar, Special Court, Bombay be directed to keep the said sealed packet containing the Micro cassette in safe-custody. The A. C. P. has stated in the application that during the course of investigation of A. C. B. C. R. No. 25 of 1990 under section 7 and section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988, against the accused S. P. Munje, a public servant, complainant was provided with a blank Micro cassette of Sony make, bearing Serial No. 6121848 and a tape recorder under a formal Pre-trap panchanama dated 26-9-1990 for recording complainants conversation with the said public servant at the time of the transaction. Conversation was recorded in the tape during the course of post trap panchanama dated 26th/27th September, 1990, before the panch witness. The complainant had produced the said Micro cassette and the Tape recorder to the police in the presence of the panch witnesses. Assistant Commissioner of Police has stated that there was inadvertent omission on the part of the Investigation Agency that before the copies of all the documents and papers of the case is handed over to the accused as envisaged under section 173 of Cr. P. C. , copies of the recorded conversation could not be done and therefore, on 1st day of appearance of the accused, in order to cure this defect, the Assistant Commissioner of Police has filed this application before the Court to take copies of recorded conversation for furnishing the same to the accused. Tape has been put in sealed cover and produced before the Court along with the charge-sheet and other documents. It was necessary to give copy of the contents recorded in the tape recorder to the accused in compliance of section 173 of Cr. P. C. The lower Court however, rejected the application. Though all the objections have been in detail dealt with by the Magistrate and found to be unsustainable, still the prayer made by the Assistant Commissioner of Police has been rejected by the Court. It is in this circumstances, that the Public Prosecutor has filed this petition before this Court.

(3.) I heard learned Additional Public Prosecutor Mrs. Kejriwal. None had appeared for respondent No. 1. Mrs. Kejriwal has vehemently argued that it was on account of bona fide mistake that the conversation contained in the tape recorder between the complainant and the accused was not contemporaneously taken at the time of preparing post trap panchanama so as to enable the prosecutor to serve the copy of the contents of the tape recorder to the accused. So long as it does not cause any prejudice to the accused and as request was made on the first day of appearance of the accused, Mrs. Usha Kejriwal submits that the learned Special Judge has committed serious error in turning down the request made by the Assistant Commissioner of Police. I find that there is substance in the contention of the Prosecutor particularly, when the lower Court has rejected all the objections raised by the accused. It is profitable to extract observations of the learned Special Judge in paragraph 21 of the order as follows : it is true that there is some delay on the part of the prosecution but the delay by itself will not debar the prosecution from producing a document namely the concerned cassette. Only thing to be taken care of is that the transcription of the concerned cassette will have to be given to the accused to prepare himself at the time of enquiry/trial. Hence, the grievance of the accused cannot be accepted holding that the production of the concerned cassette cannot be allowed. "