STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATION versus M. SUBRAHMANYAM

Citation: [2019] 7 S.C.R. 287 · Decided: 07-05-2019 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Dismissed

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Judgment (excerpt)

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STATE REPRESENTED BY INSPECTOR OF POLICE CENTRAL
BUREAU OF INVESTIGATION
v.
M. SUBRAHMANYAM
(Criminal Appeal No. 853 of  2019)
MAY 7, 2019
[ARUN MISHRA AND NAVIN SINHA, JJ.]
Code of Criminal Procedure, 1973:
s. 482 – Case under Prevention of Corruption Act –
Application u/s. 242 Cr.P.C to bring on record authorisation of
investigation, filed after three years of filing of charge-sheet –
Dismissed on the ground that no explanation furnished for not filing
the same alongwith the charge-sheet – After five years of dismissal
of the application, another application u/s. 173 (2)(5)(a) Cr.P.C
filed for bringing the authorisation on record – Dismissed on the
ground of res judicata – Petition u/s 482 seeking to bring the
authorisation on record, dismissed by High Court – On appeal,
held: Substantive justice must always prevail over procedural or
technical justice – Procedural lapse cannot be placed at par with
what is or may be substantive violation of law – The failure to bring
the authorisation on record was a procedural lapse – The
consequences of disallowing the procedural lapse was substantive
in nature – The High Court in exercise of inherent jurisdiction, in
the interest of justice and to prevent abuse of process of law, ought
to have allowed bringing of authorisation order on record –
Prosecution is permitted to bring the authorisation order for
investigation on record – However, in the facts of the case, possibility
of deliberate omission to bring on record authorisation order, to
favour the accused, cannot be ruled out – CBI directed to hold
inquiry to determine the reason for delay in approaching the court.
Allowing the appeal with directions, the Court
HELD: 1. The truth and veracity of the authorisation order
not being in issue, the failure to file it along with the charge-
sheet was an omission constituting a procedural lapse only. The
rejection of the first application on 11.03.2008 not having been
ordered on merits, but for failure to furnish a satisfactory
   [2019] 7 S.C.R. 287
287
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
explanation for the delay, Section 362 Cr.P.C has no relevance
on facts.  Therefore,  there was no impediment in the appellant
seeking to bring the same on record subsequently under Section
173(2)(5)(a) of Cr.P.C. The consequences of disallowing the
procedural lapse were substantive in nature. [Para 7] [291-D-F]
1.2 The failure to bring the authorisation on record, as
observed, was more a matter of procedure, which is but a
handmaid of justice.  Substantive justice must always prevail over
procedural or technical justice.  To hold that failure to explain
delay in a procedural matter would operate as res judicata will be
a travesty of justice considering that the present is a matter
relating to corruption in public life by holder of a public post.
The rights of an accused are undoubtedly important, but so is the
rule of law and societal interest in ensuring that an alleged offender
be subjected to the laws of the land in the larger public interest.
To put the rights of an accused at a higher pedestal and to make
the rule of law and societal interest in prevention of crime,
subservient to the same cannot be considered as dispensation of
justice. A balance therefore has to be struck. A procedural lapse
cannot be placed at par with what is or may be substantive violation
of the law. [Para 9] [292-A-C]
1.3 The High Court was exercising inherent jurisdiction in
the interest of justice and to prevent the abuse of the process of
law.  In the facts and circumstances of the case, the High Court
ought to have exercised its inherent powers to allow the bringing
of the authorisation order on record rather than to have adopted
a narrow and pedantic approach to its own jurisdiction given the
provisions of Section 173(2)(5)(a) Cr.P.C. Therefore, the
prosecution is permitted to bring the order of authorisation for
investigation on record. [Paras 11 and 12] [292-F-G]
Bihar State Electricity Board v. Bhowra Kankanee
Collieries Ltd., 1984 Supp SCC 597 ; Sakshi v. Union
of India (2004) 5 SCC 518 : [2004] 2 Suppl. SCR 723
– relied on.
Central Bureau of Investigation v. R.S. Pai and another,
(2002) 5 SCC 82 : [2002] 2 SCR 889 – referred to.
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2. The charge-sheet was submitted on 05.04.2005. No
explanation has been furnished as to why the prosecution
exhibited such laxity in seeking to bring the authorisation order
on record nearly three years later on 07.01.2

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