STATE Vs. D V SUBBARAO SUPERINTENDENT CENTRAL EXCISE

JUDGEMENT

(1.) Heard Mr. C. Sadasiva Reddy, learned Standing Counsel for Central Bureau of Investigation and Mr. Padmanabha Reddy, learned senior counsel representing respondent/accused No. 1 in C.C.No. 17 of 1998 on the file of the Special Judge for C.B.I. Cases, Hyderabad.

(2.) The petitioner filed the present criminal petition to quash the order passed by the Special Judge for C.B.I. Cases, Hyderabad dated 28-6-2002 passed in Criminal M.P. No. 169 of 2002 on the file of the Special Judge for C.B.I, cases, Hyderabad.

(3.) It is stated that the petitioner, the Central Bureau of Investigation is prosecuting the respondent/accused No. 1 under Sec.l3(l) (d) read with Section 13(2) of the Prevention of Corruption Act and Sees. 120-B, 420 and 468 IPC on the file of the Special Judge for C.B.I. Cases, Hyderabad. When the trial of the case in C.C.No. 17 of 1998 was proceeded the respondent/accused No. 1 filed a petition in Criminal Petition No. 169 of 2002 under Section 91 of the Code of Criminal Procedure 1973 (hereinafter referred to as Code) for summoning the official correspondence namely the report of the Superintendent of Police, C.B.I. Hyderabad addressed to Central Vigilance Commission and Customs and Central Excise Department. It is further stated that the C.B.I., the complainant in the case was not given notice of the said petition, though on the date when the petition came up for hearing i.e., on 26-4-2002, notice was ordered and the matter was posted to 28-6-2002 for filing counter. However, the said notice was not given to the petitioner's counsel i.e., C.B.I. Special Public Prosecutor and the Public Prosecutor was not aware of the said petition. The petition was called on 28-6-2002 and though no notice was given to the Special Public Prosecutor and no copy was served on Special Public Prosecutor, the petition was allowed by the learned Special Judge stating that no counter was filed, without giving any opportunity to the Special Public Prosecutor to file a counter and oppose the said petition or advance the contentions to oppose summoning of the said official correspondence of the Customs and Central Excise Department and it is used by the accused in contravention of Sections 123 and 124 of the Indian Evidence Act. It is further stated that the accused/respondent herein intends to use the said official correspondence of the complainant/C. B.I. in the examination of the Investigation Officer, who is not aware of the said document. It is further stated that the respondent in his petition before the Trial Court has clearly stated that summoning of the said documents is for the purpose of cross-examining the Investigating Officer. The petitioner no doubt has raised several grounds for the purpose of showing that the impugned order made by the trial Court cannot be sustained and a counter-affidavit was filed by the respondent, specifically stating thathe filed a Criminal Petition in CrLM.P.No. 169 of 2002 under Section 91 of Code on 24-6-2002, for summoning the file from the office of the Commissioner of Central Excise, Hyderabad. It is further stated that on 24-6-2002 the Special Public Prosecutor did not attend to the Court and on the suggestion made by the Court, a copy was given to the Bench Clerk for service on the Special Public Prosecutor and the case was posted to 28-6-2002 for notice and counter. It was also stated in the counter- affidavit that on 28-6-2002 when the matter was taken up, the learned Special Public Prosecutor represented that she has no objection for summoning the documents and hence no counter was filed. The Special Public Prosecutor did not ask any time for filing of the counter and in those circumstances, the learned Judge had allowed the application and as per the orders made by the Court, the documents were received and a copy of the document was also obtained by the prosecution and the defence. It was further stated that the present petition for quashing of the orders was filed on 3-9-2002 i.e., after lapse of more than two months from the date of passing of the impugned order, making false allegations. In para 3 of the counter it is stated that the respondent/accused is entitled to summon for any document pertaining to the case and it was further stated that C.B.I, approached the Central Vigilance Commissioner as well as Director of Central Vigilance for obtaining sanction of prosecution and authorities refused to accord sanction stating that a departmental enquiry is sufficient for a minor penalty. It was further stated that Sections 123 and 124 of Indian Evidence Act have no application to the present case on hand.