Central Bureau of Investigation v. Narottam Dhakad & Anr.

JUDGMENT ABHAY S. OKA, J. 1. Leave granted. FACTUAL ASPECTS 2. Under Section 272 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’), the State Government has the power to determine what shall be, for the purposes of CrPC, the language of each Court within a particular State other than the High Court. As provided in Section 6 of CrPC, the re 309 are various Courts in a State. The said Courts are the Courts of the Session, Judicial Magistrates of the First Class, Metropolitan Magistrates, Judicial Magistrates of the Second Class, and Executive Magistrates. 3. In these two appeals, we are dealing with charge sheets fi led by the appellant - Central Bureau of Investigation, in relation to off ences arising out of the VYAPAM Scam in the State of Madhya Pradesh. Charge sheets have been fi led for various off ences under Sections 419, 420, 468, 467 and 471 of IPC and under Sections 3 and 4 of the Madhya Pradesh Examinations Act, 1937. The fi rst respondent in Criminal Appeal arising out of SLP (Crl.) No. 5525 of 2018 fi led an application before the learned Judicial Magistrate seeking a direction to supply a Hindi translation of the charge sheet fi led by the appellant in English language. The contention of the fi rst respondent accused was that he was unable to understand the charge sheet fi led in English language. The learned Judicial Magistrate held that the fi rst respondent was an educated person, having knowledge of English. Learned Judge pointed out that the off ence related to fraud in the examination. The allegation is that after the fi rst respondent received admit card, some other person took the examination by impersonating him. The learned Magistrate observed that the vakalatnama fi led by the fi rst respondent was in English and the fi rst respondent has also signed in English. It was further held that the Advocate representing the fi rst respondent had sound knowledge of the English language. Therefore, the learned Magistrate proceeded to reject the prayer made by the fi rst respondent. The order of the learned Magistra te has been confi rmed by the Sessions Court in revision. However, the High Court interfered by holding that Hindi was the only language of the Criminal Courts in the State and therefore, the fi rst respondent was entitled to seek a translation of the charge sheet into the language of the Court. 4. The fi rst respondent in Criminal Appeal, arising out of SLP (Crl.) No. 10680 of 2022, is also an accused in the same case. He also made a similar application before the learned Magistrate which was rejected. The fi rst respondent challenged the said order before the High Court. A Division Bench of the High Court by the impugned judgment held that when a charge sheet was fi led in the language unknown to the accused, he was entitled to translation of the charge sheet in the language which he understands. CENTRAL BUREAU OF INVESTIGATION v. NAROTTAM DHAKAD & ANR. [ABHAY S. OKA, J.] 5. The appellant - the Central Bureau of Investigation has challenged both the impugned orders. SUBMISSIONS 6. The submission of the appellant in both cases is that the accused were highly educated and had knowledge of the English language. Therefore, there is no prejudice to the accused if the charge sheet was in English language. It was also pointed out by the learned counsel appearing for the appellant that the charge sheets in VYAPAM Scam cases are very bulky and translation of the charge sheets into Hindi is a very time-consuming and costly process. 7. The submission of the learned counsel appearing for the accused is that in the exercise of powers under Section 272 of CrPC, the Stat e Government has declared Hindi as the only language of the Criminal Courts in the State. Their submission is that the language Hindi is for the purposes of the Code and therefore, charge sheets fi led under Section 173 of CrPC ought to be fi led in the language of the Court. Therefore, both the accused supported the view taken by the High Court. The learned counsel appearing for the accused also submitted that in a given case if the a ccused is not conversant with the language in which the charge sheet has been fi led, he will not be able to defend himself properly as he will not be in a position to understand the statements recorded by the police and other docum ents collected during investigation. OUR VIEW 8. The Government of Madhya Pradesh in exercise of power under Section 272 of CrPC issued a notifi cation dated 28th March 1974, declared Hindi to be the language of each Court in the State except the High Court. If we consider the scheme of CrPC, it regulates not only the p rocedure before the Criminal Courts but also the procedure to be followed by t he police and other investigating agencies. Chapter V deals with the arrest of persons. Chapter VI deals with processes to be issued for com pelling the appearance of the accused before the Court. Chapter VII deals with processes to be issued to compel the production of things before the Court. Chapter VIII contains provisions regarding security for keeping the peace and for good behaviour. The powers under the said Chapter are to be exercised by the Courts under the CrPC or an Executive Magistrate, as the case may be. 311 Chapter X contains the steps to be taken for the maintenance of public order and tranquillity. Chapter IX contains Section 125 which confers powers on the Courts of the Judicial Magistrate, First Class to order payment of maintenance to wives, children and parents. Chapter XI deals wit h the preventive action of the police. Chapter XII contains elaborate provisions regarding the registration of First Information Reports, and the investigation of off ences in cognizable or non-cognizable cases. 9. Section 173 forms part of Chapter XII which contains provisions regarding a police report which is popularly known as a charge sheet. We are, therefore, reproducing Section 173 of CrPC which reads thus: “173. Report of police offi cer on completion of investigation.— (1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to an off ence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the offi cer in charge of the police station. (2) (i) As soon as it is completed, the offi cer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the off ence on a police report, a report in the form prescribed by the State Government, stating— (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 off ence appears to have been committed and, if so, 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; (g) whether he has been forwarded in custody under section 170. CENTRAL BUREAU OF INVESTIGATION v. NAROTTAM DHAKAD & ANR. [ABHAY S. OKA, J.] (h) whether the report of medical examination of the woman has been attached where investigation relates to an off ence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860). (ii) The offi cer 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 of the off ence was fi rst given. (3) Where a superior offi cer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that offi cer, and he may, pending the orders of the Magistrate, direct the offi cer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, t he Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fi t. (5) When such report is in respect of a case to which section 170 applies, the police offi cer shall forward to the Magistrate along 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; (b) the statements recorded under section 161 of al l the persons whom the prosecution proposes to examine as its witnesses. (6) If the police offi cer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. 313 (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an off ence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the offi cer 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 as may be, apply in relation to such repor t or reports as they apply in relation to a report forwarded under sub-section (2).” (emphasis supplied) 10. As can be seen from sub-section (2) of Section 173, after completion of the investigation, the offi cer in charge of the police station is under an obligation to submit a report to the learned Magistrate in the form prescribed by the State Government, giving particulars as mentioned in sub- section (2). Sub-section (5) is applicable in a case governing Section 170. It applies when it appears to the offi cer in charge of the police station that there is suffi cient evidence or reasonable ground justifying the forwarding of the accused to the learned Magistrate. In such a case, al ong with the report, the offi cer in charge of the police station is bound to forward copies of the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. It also enjoins the offi cer in charge of the police station to forward all the documents or rele vant extracts thereof on which the prosecution proposes to rely upon other than those already sent to the Magistrate during the investigation. Sub-section (6) of Section 173 confers power on the learned Magistrate to exclude certain parts of the material produced along with the charge sheet while supplying copies thereof to the accused. 11. Section 173 will have to be read with Section 207 which mandates that after cognizance is taken of the off ence by the learned Magistrate on a case instituted on a police report, it is the obligation of the learned Magistrate to furnish free of cost, without any delay, copies of the police report, fi rst CENTRAL BUREAU OF INVESTIGATION v. NAROTTAM DHAKAD & ANR. [ABHAY S. OKA, J.] information report, statements recorded under sub-section (3) of Section 161 of CrPC except the portion in respect of which there is an order passed by the learned Magistrate by invoking powers under sub-section (6) of Section 173, confessions and statements recorded under Section 164 and copies of the documents or relevant extracts forwarded along with the police report in accordance with sub-section (5) of Section 173. When the statements of the witnesses or documents covered by sub-section (5) of Section 173 are very bulky, the learned Magistrate has the discretion to allow the accused and his advocate to inspect the said documents instead of providing copies thereof. It is pertinent to note that there is no provision either in Chapter XII or Chapter XVI of CrPC which makes it obligatory to fi le charge sheets/ reports in the language of the Court. 12. Interestingly, the provision regarding the language of Courts in the form of Section 272 fi nds a place in Chapter XXIII having the heading “Evidence in inquiries and Trials”. The provision is incorporated under the sub-heading “A.—Mode of taking and recording evidence”. Section 272 reads thus: “272. Language of Courts.—The State Government may determine what shall be, for purposes of this Code, the language of each Court within the State other than the High Court.” Thus, the power of the State Government is to determine for the purposes of CrPC what shall be the language of the Courts within the State other than the High Court. The power under Section 272 is not a power to decide which language shall be used by the investigating agencies or the police for the purposes of maintaining the record of the investigat ion. At the highest, for that purpose, the provisions regarding the law governing the Offi cial Language of the State may apply subject to the provisions contained in such enactment. In a given case, while prescribing a form as required by Sub-section (2) of Section 173, the State Government may provide that the charge sheet must be fi led in the offi cial language of the State. Therefore, Section 272 deals with only the language of the Courts under CrPC. 13. It is interesting to note that wherever legislature intended, specifi c provisions have been made incorporating the requirement using the language of the Court. Some of these provisions also deal with situations when the accused is unable to understand the language of the Court 315 14. We are giving a summary of the relevant provisions of CrPC which have some bearing on the issue of the language of the Court: a. Sub-section (6) of Section 211 provides that the charge shall be written in the language of the Court. However, Section 215 provides that no error in the charge shall be regarded at any stage of the case as material unless the accused was in fact misled due to error or omission and it has occasioned a failure of justice. Therefore, in a given case, even if the charge is not framed in the language of the Court, the omission to frame the charge in the language of the Court shall not be material unless it is shown that the accused was misled and it resulted in failure of justice. b. Section 228 forms part of Chapter XVIII, which deals with trial before a Court of Sessions. Sub-section (2) of Section 228 mandates that the Court must read over and explain the charge to the accused. It follows that if the accused does not understand the language in which the charge is framed, the Court will have to explain the charge to him in the language which he understands. c. Section 240 which forms part of Chapter XVIII dealing with the trial of warrant cases by Magistrates provides that the charge shall be framed in writing and the learned Magistrate shall read over and explain the charge to the accused. Though the Section does not make it mandatory, normally, the charge will be framed in the language of the Court determined in accordance with Section 272 of CrPC. Therefore, if the accused is not conversant with the language in which the charge is framed, it is the duty of the Magistrate to explain the charge to the accused in a language which he understands. d. If we compare provisions of Chapters XVIII, XIX, XX, and XXI which deal with sessions triable cases, warrant triable cases , summons triable cases, and summary trials, either there is a requirement of explaining the charge to the accused, or there is a requirement of stating the particulars of the off ence to the accused. These requirements can be fulfi lled only by explaining to the accused in the language which he understands. CENTRAL BUREAU OF INVESTIGATION v. NAROTTAM DHAKAD & ANR. [ABHAY S. OKA, J.] e. Only in the case of summary trials under Chapter XXI, there is a specifi c provision under Section 265 that the record of the case shall be in the language of the Court. f. Section 277 (b) permits a witness to give evidence in any other language which is not the language of the Court. It lays down the procedure for recording such evidence. g. There is a salutatory provision in the form of Section 279 under Chapter XXIII dealing with evidence in inquiries and trials. Section 279 reads thus: “279. Interpretation of evidence to accused or his pleader.—(1) Whenever any evidence is given in a language not understood by the accused, and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him. (2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language. (3) When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.” Thus, where evidence is recorded in the language of the Court which is not understood by the accused or his pleader, there is an obligation on the part of the Court to explain the evidence to the accused or his lawyer, as the case may be. h. Section 281 provides that if the examination of the accuse d made by the Court is reduced into writing in a language which the accused does not understand, the statement is required to be interpreted to him in a language which he understands and after such interpretation is made, the accused has the liberty to explain and add to his answers. i. Under Section 354, it is provided that judgment in every trial of a Criminal Court must be written in the language of the Court. 317 Either in Section 353 or 354, there is no provision which requires the Court to interpret the judgment to the accused even if the accused does not understand the language of the Court. 15. The conclusion which can be drawn from the provisions of CrPC and in particular the provisions referred to above is that whe rever the legislature intended, there is a specifi c provision incorporated requiring the Court to mandatorily use the language of the Court in the proceedings. There is no such requirement laid down in respect of the report/charge sheet under Section 173 of CrPC. 16. There are two provisions in CrPC which deal with the eff ect of error, omission, or irregularity in the proceedings of the trial of a criminal case. The fi rst is Section 464 which deals with the eff ect of omission to frame, or absence of, or error in, charge. It lays down that only on the ground of such omission, absence, or error, the ultimate fi nding, sentence or order will not be invalid unless a failure of justice has in fact been occa sioned thereby. Section 465 incorporates the same test of the failure of justice while dealing with any error, omission, or irregularity in the proceedings. While deciding whether there is a failure of justice occasioned due to error, omission, or irregularity in the trial, the Court is required to consider the fact whether the objection could and should have been raised at an earlier sta ge in the proceedings. There is a specifi c provision to that eff ect under sub-section (2) of Section 465. 17. Therefore, in a given case, if something which CrPC specifi cally requires to be done in the language of the Court is done in any other language, per se, the proceedings will not be vitiated unless it is established that the omission has resulted in failure of justice. While deciding the issue of whether there is a failure of justice, the Court will have to consider whether the objection was raised at the earliest available opportunity. 18. Now, coming to the issue of the language of the fi nal report/charge sheet under Section 173, there is no specifi c provision in CrP C which requires the investigating agency/offi cer to fi le it in the language of the Court determined in accordance with Section 272 of CrPC. Even if such a requirement is read into Section 173, per se, the proceedings will not be CENTRAL BUREAU OF INVESTIGATION v. NAROTTAM DHAKAD & ANR. [ABHAY S. OKA, J.] vitiated if the report is not in the language of the Court. The test of failure of justice will have to be applied in such a case as laid down in Section 465 of CrPC. 19. Under Section 207, it is the obligation of the learned Judicial Magistrate to supply a copy of the report and other documents as provided in Section 207 to the accused. In a case triable by the Court of Ses sions, Section 208 provides for the learned Magistrate to provide copi es of the statements and documents to the accused including the statemen ts and confessions recorded under Section 164 of CrPC. When a copy of the report and the documents are supplied to the accused under Section 207 and/ or Section 208, an opportunity is available for the accused to contend that he does not understand the language in which the fi nal report or the statements or documents are written. But he must raise this objection at the earliest. In such a case, if the accused is appearing in person and wants t o defend himself without opting for legal aid, perhaps there may be a requirement of supplying a translated version of the charge sheet and documents or the relevant part thereof concerning the said accused to him. It is, how ever, subject to the accused satisfying the Court that he is unable to understand the language in which the charge sheet is submitted. When the a ccused is represented by an advocate who fully understands the language of the fi nal report or charge sheet, there will not be any requirement of furnishing translations to the accused as the advocate can explain the contents of the charge sheet to the accused. If both the accused and his advocate ar e not conversant with the language in which the charge sheet has been fi led, then the question of providing translation may arise. The reason is that the accused must get a fair opportunity to defend himself. He must know and understand the material against him in the charge sheet. That is the essence of Article 21 of the Constitution of India. With the availability of various software and Artifi cial Intelligence tools for making translations, providing translations will not be that diffi cult now. In the cases mentioned aforesaid, the Courts can always direct the prosecution to provide a translated version of the charge sheet. But we must hasten to add that a charge sheet fi led within the period provided either under Section 167 of CrPC or any other relevant statute in a language other than the language of the Court or the language which the accused does not understand, is not illegal and no one can claim a default bail on that ground. 319 20. There is one more aspect of the matter. There are central agencies like the National Investigation Agency, Central Bureau of Investigation , etc. These agencies investigate serious off ences or off ences having wide ramifi cations. Obviously, such central agencies, in every case will not be in a position to fi le the fi nal report in the language of the concerned Court as determined by Section 272 of CrPC. 21. Now, coming to the facts of the case, in Criminal Appeal arising out of SLP (Crl.) 5525 of 2018, a fi nding of fact was recorded by the trial court that the respondent is an educated person. The off ence re lates to an examination for which one of the eligibility conditions was having a knowledge of the English language. Moreover, it was found that the advocate engaged by him also knows the English language. Coming to the Criminal Appeal arising out of SLP (Crl.) 10680 of 2022, the trial court has recorded a fi nding that the fi rst respondent-accused was a science graduate having knowledge of the English language. Moreover, his advocate was conversant with the English language. 22. Hence, in the facts of the cases in hand, it cannot be said that a non-supply of translation of the charge sheet and other documents to the accused in both appeals will occasion a failure of justice. 23. Hence, the appeals succeed and subject to what is held in the earlier part of the judgment, the impugned orders are set aside. There will be no order as to costs. The Trial Court shall expeditiously proceed with the trial.