Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+Crl. M.C. No. 1272/2010
% 26.07.2010
SUKHMOHINDER SINGH SANDHU ... Petitioner
Through: Mr. K.K. Sud, Sr. Adv. with
Mr. Suraj Prakash, Adv.
Versus
CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
And
+Crl. M.C. No. 1356/2010
% 26.07.2010
SUMEDH SINGH SAINI ... Petitioner
Through: Mr. Ajay Burman, Adv.
Versus
STATE THROUGH CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
And
+Crl. M.C. No. 1861/2010
% 26.07.2010
PARAMJIT SINGH ... Petitioner
Through: MS. Ruchi Kapur, Adv.
Versus
STATE THROUGH CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
And
+Crl. M.C. No. 1862/2010
% 26.07.2010
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 1 of 14
BALBIR CHAND TIWARI ... Petitioner
Through: Mr. A.K. Mehta, Adv.
Versus
STATE THROUGH CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
nd
Date of Reserve: 2 July, 2010
th
Date of Order: 26 July, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
These four Criminal Miscellaneous Petitions have been filed by four accused
persons facing trial before the learned Sessions Judge under section 342, 365 and
st
120-B IPC. The petitioners have assailed order dated 1 April, 2010 dismissing their
applications under section 91 Cr. P.C., filed for directions to CBI to supply certain
documents and statements allegedly in possession of CBI.
2. The petitioners/accused persons are police officials against whom this FIR
was registered at the instance of High Court of Punjab & Haryana and investigation
was handed over to CBI. Accused Sumedh Singh Saini was, at that time, SSP
Ludhiana. It was alleged by the complainant that he had enmity with owner of M/s
Saini Motors and during his tenure as SSP, a number of cases were registered against
the owner and other family members of M/s Saini Motors. Local police while
conducting investigation of FIR No. 22 of 1994 found that there are business
transactions between M/s Saini Motors and Walia family. So, local police roped in
Walia family also along with Saini Motors in many criminal cases. Vinod Kumar and
Ashish Kumar were members of Walia family. Vinod Kumar and Ashish Kumar filed
petitions before the High Court about threat to their lives at the hands of police
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 2 of 14
officials. Vinod Kumar went missing. He was last seen alive with accused Sumedh
th
Singh Saini, SSP of Ludhiana, in the evening of 15 March, 1994.
3. After his disappearance, on a petition filed before the High Court, the High
Court directed CBI to investigate the matter and to file progress report from time to
time before the High Court. In the progress report filed by the CBI before the High
Court in 1995, the CBI mentioned that till then it had recorded statements of about
70 persons and collected documents from various agencies. However, the
investigation continued and challan was filed in the year 2000. It would not be
relevant here to discuss as to why and how so much time was taken by CBI in
investigating the matter. However, the challan was filed before the Court of M.M. at
Ambala as per the directions of High Court of Punjab & Haryana and accused persons
were supplied copies of charge-sheet along-with documents of the case under
section 207 Cr. P.C. by the court of MM at Ambala. After supply of copies, the
matter was committed to the Sessions court at Ambala being a sessions trial case.
The accused persons seemed to have filed applications for transfer of trial from
Ambala to Delhi before the Supreme Court. As a result thereof, this trial got
transferred to a Delhi Court. After the trial was transferred to Delhi and was
assigned to the court of ASJ, the concerned ASJ heard arguments on charge and
th
framed charges against all the four accused persons on 9 January, 2007. However,
the trial did not proceed further as all the four accused persons filed Criminal
Revision Petitions before this Court (High Court of Delhi) against framing of charge,
which are pending disposal. Meanwhile, one of the witnesses i.e. Smt. Amar Kaur
made an application before the High Court that she was of quite old age and may not
live to depose in the court and see the end of trial if the trial proceeded at the pace
it is proceeding and her statement be recorded. It was under these circumstances
that this court directed recording of statement of witnesses. While PW-1 was being
recorded before trial court, all accused persons made applications under section 91
of Cr. P.C. asking the court for directions to CBI to produce certain documents and
statements. In the applications it was mentioned that CBI had withheld and had not
placed on record of the trial court some vital and relevant documents and evidence
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 3 of 14
i.e. statements of witnesses recorded during the course of investigation which could
have serious ramifications regarding outcome of the case. It was alleged that certain
crucial and critical documents were disclosed and supplied by various persons and
witnesses to CBI during investigation and those documents were very important in
the matter and would go a long way in proving the innocence of applicants. These
documents were absolutely necessary for perusal of the Trial Court for imparting
justice.
4. Accused No. 2 SSP Sumedh Singh Saini in his application stated that there was
sufficient material so show that missing person namely Vinod Kumar had a long
th
criminal background and had a strong motive to abscond on 15 March, 1994 and
th
there was also material to show that after he went missing on 15 March, 1994, he
re-surfaced and met at least four independent and reliable witnesses. He also
appeared in a court on a subsequent date. It was stated in the application that in its
status report filed before the Punjab & Haryana High Court in 1995, CBI had
submitted that it recorded statement of ASI Jagrup Singh, Ct. Surinder Singh, Ct.
Gurnam Singh, Ct. Bhupinder Singh, Ct. Jagrup Singh, Ct. Baldev Singh, HC Harjit
Singh, HC Kulwant Singh and HC Gurwinder Singh, but CBI filed statement of only HC
Kulwant Singh and statements of remaining 8 persons were not placed on record. It
is also stated that CBI had examined Darshan Singh, Gurdayal Singh, Om Prakash
Sikka, Ashwini Sekhari and Rajesh Chadha but their statements were not placed on
record. It was submitted by this accused (accused No. 2, Sumedh Singh Saini) that
non supplying of these statements shall cause serious prejudice to the applicant in
setting up his defence and failure of CBI in supply of these documents amounted to
violation of principles of natural justice and deprived the applicant from his right of
setting up a defence. The applicant had constitutional guarantee and fundamental
right of setting up best defence and it was mandate of law that prosecution should
produce every bit and piece of evidence collected by it during the course of
investigation irrespective of the fact whether the material goes against or in the
favour of the accused. It is stated that supply of these documents and statements
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 4 of 14
were not going to prejudice the state in any manner and therefore these
documents/statement of witnesses should be supplied to the applicant.
5. Similar applications were made by other accused persons taking almost
similar pleas. The learned trial court noted down history of allegations made against
the accused persons before the Punjab & Haryana High Court and also noted down
how Vinod Kumar, arrested by police was not sent to Judicial Custody despite the
order of the Court and was illegally kept in police custody. He also noted the
sequence of events leading to disappearance of Vinod Kumar, victim and the
allegations made against the accused persons and after noting down contentions of
both sides, the trial court came to conclusion that the applications were not
maintainable.
6. The order passed by the learned trial court is attacked by the counsel for the
applicants on the ground that the trial court had not at all given reasons for rejecting
the application and had merely reproduced the facts as disclosed from the charge-
sheet and reply to the application and dismissed the application without reasons.
The other ground for attack on the order of the trial court is that the trial court did
not even consider if these documents were essential or not essential for defence of
the accused and for cross-examination of the witness who was under cross
examination.
7. It is argued by the counsels that withholding of the evidence by prosecution
has been condemned by the courts and it has been consistently held by the courts
that investigating agency should do fair investigation and the entire evidence
collected by the IO should be made part of the charge-sheet. Reliance was placed on
Shakuntala Vs. The State of Delhi, 139 (2007) DLT 178. It was further submitted that
the accused has a right to move an application at the stage of cross examination and
reliance was placed by the applicant on Rajeshwar Singhal Vs. CBI, 2007 (3) JCC 2083.
Kashinath Bhattacharjee Vs. State of Tripura and Another, 2009 Cri. L.J. 1188 was
relied upon to insist that not giving of reasons by the trial court for rejecting prayer
for production of documents was bad in law. Reliance was placed on State of Kerala
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 5 of 14
Vs. Raghavan etc., 1974 Cri. L.J. 1373 to impress that prosecution cannot pick and
choose and refuse to supply to accused copies of statements which are contradictory
to the prosecution case on the ground that the prosecution was not going to rely on
these statements. State of Punjab Vs. Mohinder Singh and Others, 1974 C.L.R. 301
was relied upon to plead that provisions of sections 162, 173 (4) and 207-A(3) Cr.
P.C. impose an obligation upon the prosecution agency to supply copies of
statements of witnesses to enable the accused to obtain a clear picture of the case
and enable the accused to utilize them during the course of cross examination to
establish his defence. S.J. Chowdhary Vs. The State, 1984 Cri. L.J. 964 was cited to
impress upon the court that rejection of prayer for supply of copies of the
documents/ photographs was illegal since the defence was likely to suffer at the
time of cross examination.
8. Every trial must be a fair trial and fair trial is the theme song of provisions of
Criminal Procedure Code. The concept of fair trial cannot vary from case to case,
accused to accused and person to person. It has to be a consistent concept
applicable to all cases. In fact, detailed procedure laid down by Cr. P.C. takes care of
ensuring fair trial to the accused. Thus a trial according to Cr. P.C. has to be
considered a fair trial. It is only if provisions of Cr. P.C. are not followed, one can say
that the trial is not fair trial. An important facet of fair trial is that trial must
conclude within a reasonable time and it must not be fair only to the accused but
must be fair to the society, to the victim and to the witnesses. Where a case
registered of an incident that took place in 1995 of a person allegedly illegally kept
in police custody & presumably murdered at the instance of a senior police officer
and the trial starts sometime in 2007 after framing of charges, and impediments are
put to see that the trial does not proceed, so much so that a witness feels compelled
to make an application to the Court that look by the time the court decides the
revision petition, I may die, the trial cannot be considered as fair to the society or to
the victim or to witness howsoever fair it may be considered to the accused, in the
facts and circumstances of the case.
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 6 of 14
9. The report of CBI on which the petitioners have relied was filed before the
Punjab & Haryana High Court in 1995. This report was within the knowledge of the
petitioners when charge-sheet was filed by CBI before the Court at Ambala in year
2000. It is not the claim of the petitioners that an application was made to the
learned MM for supply of alleged documents or other documents or statements of
persons and it was rejected by the learned MM. The accused persons are police
officials and one of them had held a post of Superintendent of Police. He was not a
naive in the field of criminal law and he knew the importance of the documents. It is
also not the case of the accused persons that these documents formed part of the
charge-sheet and were still not supplied despite demand.
10. An investigation is a complex process. Investigation involving accused
persons, who included a high police official, well versed in criminal law would be
more complex. During investigation, in order to find out the evidence, the
investigating agency may have to examine hundreds of persons to find out as to who
were the persons who had knowledge of the facts concerning the crime. Merely
because CBI tells the court that it has examined 70 persons, the accused does not get
a right to ask that CBI should produce the statement of all 70 persons before him.
The rights of the accused have been crystallized by the Cr. P.C. in categorical manner
regarding copies. Under section 207 Cr. P.C., the rights of accused are crystallized in
respect of supply of document as follows:-
(i) The police report;
(ii) The first information report recorded under section 154:
(iii) The statements recorded under sub-section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses,
excluding there from any part in regard to which a request for such exclusion
has been made by the police officer under sub- section (6) of section 173.
(iv) The confessions and statements, if any, recorded under section
164;
(v) Any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub-section (5) of section 173”
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 7 of 14
Section 91 of Cr. P.C. comes into play during the course of trial. Section 91 of
Cr. P.C., under which the accused persons have made applications, reads as under:-
“(1) Whenever any court or any officer in charge of
a police station considers that the production of any
document of or other thing is necessary or desirable for the
purposes of any investigation, inquiry, may issue a
summons, or such officer a written order, to the person in
whose possession or power such document or thing is
believed to be requiring him to attend and produce it or to
produce it at the time and place stated in the summons or
order.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to
have complied with the requisition if he causes such
document or thing to be produced instead of attending
personally to produce the same.”
In State of Orissa Vs. Debendra Nath Padhi , AIR 2005 SC 359, Supreme Court
while considering this provision observed as under:
“25. Any document or other thing envisaged under
the aforesaid provision can be ordered to be produced on
finding that the same is ‘necessary or desirable for the
purpose of investigation, inquiry, trial or other proceedings
under the Code’. The first and foremost requirement of the
section is about the document being necessary or
desirable. The necessity or desirability would have to be
seen with reference to the stage when a prayer is made for
the production. If any document is necessary or desirable
for the defence of the accused, the question of invoking
Section 91 at the initial stage of framing of a charge would
not arise since defence of the accused is not relevant at
that stage. When the section refers to investigation,
inquiry, trial or other proceedings, it is to be borne in mind
that under the section a police officer may move the Court
for summoning and production of a document as may be
necessary at any of the stages mentioned in the section. In
so far as the accused is concerned, his entitlement to seek
order under Section 91 would ordinarily not come till the
stage of defence. When the section talks of the document
being necessary and desirable, it is implicit that necessity
and desirability is to be examined considering the stage
when such a prayer for summoning and production is
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 8 of 14
made and the party who makes it, whether police or
accused. If under section 207 what is necessary and
relevant is only the record produced in terms of Section
173 of the Code, the accused cannot at that stage invoke
Section 91 to seek production of any document to show his
innocence. Under Section 91 summons for production of
document can be issued by Court and under a written
order an officer in charge of police station can also direct
production thereof. Section 91 does not confer any right
on the accused to produce document in his possession to
prove his defence. Section 91 presupposes that when the
document is not produced process may be initiated to
compel production thereof.
26. Reliance on behalf of the accused was placed on
some observations made in the case of Om Parkash
Sharma v. CBI : 2000CriLJ3478 . In that case the
application filed by the accused for summoning and
production of documents was rejected by the Special Judge
and that order was affirmed by the High Court. Challenging
those orders before this Court, reliance was placed on
behalf of the accused upon Satish Mehra's case (supra).
The contentions based on Satish Mehra's case have been
noticed in para 4 as under:
"The learned counsel for the appellant reiterated the stand
taken before the courts below with great vehemence by
inviting our attention to the decision of this Court reported
in Satish Mehra v. Delhi Admn. : (1996)9SCC766 , laying
emphasis on the fact the very learned Judge in the High
Court has taken a different view in such matters, in the
decision reported in Ashok Kaushik v. State :
78(1999)DLT423 . Mr Altaf Ahmed, the learned ASG for the
respondents not only contended that the decisions relied
upon for the appellants would not justify the claim of the
appellant in this case, at this stage, but also invited,
extensively our attention to the exercise undertaken by the
courts below to find out the relevance, desirability and
necessity of those documents as well as the need for
issuing any such directions as claimed at that stage and
consequently there was no justification whatsoever, to
intervene by an interference at the present stage of the
proceedings.
28. We are of the view that jurisdiction under Section 91 of
the Code when invoked by accused the necessity and
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 9 of 14
desirability would have to be seen by the Court in the
context of the purpose - investigation, inquiry, trial or other
proceedings under the Code. It would also have to be
borne in mind that law does not permit a roving or fishing
inquiry.
11. This provisions of section 91 Cr. P.C. empower a court to summon or order
production of any document which it think necessary or desirable for the purpose of
inquiry or trial. The word ‘document’ through not defined in Cr. P.C., however, has
been defined in section 3 of Evidence Act and would mean any matter expressed or
described upon any substance by means of letter, figures or makes, or by more than
one of those means. The accused under section 91 Cr. P.C. cannot ask the
production of documents as a matter of right. However, while making application
he has to specify the document and show its relevance. He cannot ask the court to
make roving and fishing enquiry as has been done in the applications under
consideration. Only when he discloses the nature of document and its relevance,
the court to decide if the documents sought to be summoned was necessary or
desirable for the just decision of the case.
12. During arguments, counsel for the parties tried to impress upon the court
that PW-1 was under cross examination and the documents sought in the
application should be allowed before cross examination of this witness was
completed. However, it has not been stated either in the application moved by the
accused persons or during the arguments before this court that how statement of
any of the persons mentioned in the application, or any of the unknown, unspecified
documents allegedly in custody of CBI was relevant for cross examination of PW-1 or
PW-2. The only argument made was that these documents were necessary for
defence of the accused and no prejudice was going to be caused to CBI and these
documents should be supplied to the applicants.
13. When imputations are put to an accused person in the form of charge, the
only question put to the accused person is whether he pleads guilty or not. No
question is asked to the accused as to what is his defence. The only defence which is
taken in all criminal trials is the defence of innocence of accused persons. Even in
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 10 of 14
summon trial cases, where the law provides that accused can be asked question as
to his defence, normally the only defence taken is “I am innocent”. Defence is
something known to the accused if the accused claims a specific defence and states
that the documents were required to help him in cross examination of the witness
so that he can ask questions to the witness about his defence then he has to disclose
his defence to the Court in the application made by him and state how the witness
could be asked questions on such defence with the help of document. The only
defence taken in this case is that the victim was facing trial in several criminal cases
and he had reasons to abscond. In order to prove this defence, the accused persons
in their application were liable to say as to which of the alleged persons examined by
CBI had given statement that victim was facing trials in different criminal cases or he
had absconded due to such cases and how the alleged statement of alleged persons
were relevant for the court to consider at the stage of examination of PWs.
14. The arguments advanced by the counsels that the trial court did not consider
the relevancy of these documents does not hold ground because in none of the
applications, the applicants had stated or described the relevancy of each such
document or statement to the Trial Court. If the applicants /accused chose to
remain silent about the relevancy of the alleged unspecified documents and
statements & did not disclose to the court what were the contents of these
documents & statements and why they were relevant, they cannot expect the trial
court to discuss the relevancy of the documents. In fact, the applications on this
count are absolutely vague and from the arguments it can be gathered that the
accused persons were trying to aim at an unknown target in darkness. None of the
accused persons disclosed what were the statements made to CBI, what were the
documents collected by CBI except that in one of the application accused has relied
upon an order sheet of a civil court and reproduced the order-sheet showing
attendance of the victim.
15. I consider that the trial court, could have summarily dismissed the
application on the ground that accused persons have not shown relevancy of the
alleged undisclosed documents and merely saying that some alleged documents
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 11 of 14
were necessary for the accused persons to take their defence is no argument.
Unless accused persons disclosed the contents & nature of the documents and knew
how the documents were going to affect their defence, the accused persons could
not have asked for them.
16. The stage at which the applications are made by the accused persons i.e.
when the examination of witnesses started after about 13 years of the incident
itself, shows that the applications were made with the intention to delay the trial
and not with an intention to take some specific defence. Moreover, trial court had
given liberty to the accused persons to produce relied documents at the stage of
defence. An argument is raised that by giving this liberty, the trial court has
admitted the relevancy of the documents. I fail to understand how this argument
could have been raised when neither trial court has seen nor the accused persons
have seen the documents. The trial court could have commented upon the
relevancy of documents had the same been seen by it. The documents/statements
sought are in respect of a report made by CBI that it has examined 70 persons. It is
not the case of CBI that those 70 persons were having knowledge of the facts of the
case and were to be cited as witnesses in the case.
17. It is settled law that accused can demand copy of only those
documents/statements on which reliance is placed by the prosecution to prove its
case. If the accused has knowledge of other documents which can prove his
innocence, he is at liberty to produce all such documents in his defence and if he
seeks assistance of the court in producing those documents the contents of which
are known to him, the court definitely would help in production of those documents
which are available, but, accused cannot be allowed to scuttle the trial by making
frivolous applications and to stall the examination or cross examination of witnesses.
18. Various judgments relied upon by the petitioners are of no help to them. In
Neelesh Jain Vs. State of Rajasthan, 2006 Cri. L. J. 2151 , the court had allowed
production of earlier report filed by prosecutrix’s father to be used by the accused to
confront the father of prosecutrix when he stepped into witness box. Similarly, a
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 12 of 14
report lodged by prosecutrix at Mahila Thana was allowed to the produced as that
would have thrown some light on the controversy. In this case, the court had
allowed the documents, the nature and contents of which were known to the
accused and which were authored by the witness so that witness could be
confronted with contents.
19. In Shakuntala Vs. The State of Delhi, 139 (2007) DLT 178, (Supra) the
Revision Petition was filed by the appellant against the order on charge and the
court observed that the entire material placed before the Court in the form of
earlier complaint and statements made against the husband, should have been
considered by the court since these statements showed that it was her own case
that her father-in-law & mother-in-law were cooperating her for action against their
son and they had gone to the extent of disowning their son and supported their
daughter-in-law. However, daughter-in-law made both of them accused in her
subsequent complaint. In Rajeshwar Singhal Vs. CBI, 2007 (3) JCC 2083 (Supra) , two
documents stated in the application under section 91 Cr. P.C. were seized by CBI in
the search of petitioner’s premises and the court allowed the application for
production of these two documents since the accused relied upon these documents
showing the relevancy of these documents. State of Kerala Vs. Raghavan etc., 1974
Cri. L.J. 1373 (Supra), was not a case under section 91 Cr. P.C. and the provisions of
Section 91 were not even discussed. Similarly, in State of Punjab Vs. Mohinder Singh
and Others, 1974 CLR 301 (Supra), the court had not at all considered the provisions
of Section 91 Cr. P.C. and had rather observed that accused had a right to the copies
of statements made by the witnesses during investigation at the stage of supply of
documents. This was not a case where documents were asked after charge was
framed and statements of witnesses were being recorded. In S.J. Chowdhary Vs. The
State, 1984 Cri.L.J. 864, the accused had demanded a copy of cassette containing
tape recorded conversation allegedly having taken place between accused and other
persons. A transcript of conversation was supplied to the accused but duplicate
cassette was not supplied. The court directed for supply of a duplicate cassette.
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 13 of 14
20. It is settled law that it is the statutory provisions which govern the trial and
the court has to act in accordance with various provisions of Cr. P.C. The judgments
of High Courts and Supreme Court are given in facts and circumstances of each case.
Judgments are not to be read as a statute. Each case represents its own problem
adjudicated upon by the Court and unless and until the High Court and Supreme
Court lay down a general principle of law to be followed by the courts below, the
judgments would have to be considered as adjudication of the particular issue
before the Court. I, therefore, consider that the judgment relied upon by the
petitioner are of no help to the petitioner. The trial court rightly dismissed the
applications made by the petitioners.
th
26 July, 2010 SHIV NARAYAN DHINGRA, J.
acm
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 14 of 14
+Crl. M.C. No. 1272/2010
% 26.07.2010
SUKHMOHINDER SINGH SANDHU ... Petitioner
Through: Mr. K.K. Sud, Sr. Adv. with
Mr. Suraj Prakash, Adv.
Versus
CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
And
+Crl. M.C. No. 1356/2010
% 26.07.2010
SUMEDH SINGH SAINI ... Petitioner
Through: Mr. Ajay Burman, Adv.
Versus
STATE THROUGH CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
And
+Crl. M.C. No. 1861/2010
% 26.07.2010
PARAMJIT SINGH ... Petitioner
Through: MS. Ruchi Kapur, Adv.
Versus
STATE THROUGH CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
And
+Crl. M.C. No. 1862/2010
% 26.07.2010
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 1 of 14
BALBIR CHAND TIWARI ... Petitioner
Through: Mr. A.K. Mehta, Adv.
Versus
STATE THROUGH CBI ... Respondents
Through: Mr. A.K. Chandhoik, ASG with
Mr. Harish Gulati, Standing Counsel for CBI
nd
Date of Reserve: 2 July, 2010
th
Date of Order: 26 July, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
These four Criminal Miscellaneous Petitions have been filed by four accused
persons facing trial before the learned Sessions Judge under section 342, 365 and
st
120-B IPC. The petitioners have assailed order dated 1 April, 2010 dismissing their
applications under section 91 Cr. P.C., filed for directions to CBI to supply certain
documents and statements allegedly in possession of CBI.
2. The petitioners/accused persons are police officials against whom this FIR
was registered at the instance of High Court of Punjab & Haryana and investigation
was handed over to CBI. Accused Sumedh Singh Saini was, at that time, SSP
Ludhiana. It was alleged by the complainant that he had enmity with owner of M/s
Saini Motors and during his tenure as SSP, a number of cases were registered against
the owner and other family members of M/s Saini Motors. Local police while
conducting investigation of FIR No. 22 of 1994 found that there are business
transactions between M/s Saini Motors and Walia family. So, local police roped in
Walia family also along with Saini Motors in many criminal cases. Vinod Kumar and
Ashish Kumar were members of Walia family. Vinod Kumar and Ashish Kumar filed
petitions before the High Court about threat to their lives at the hands of police
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 2 of 14
officials. Vinod Kumar went missing. He was last seen alive with accused Sumedh
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Singh Saini, SSP of Ludhiana, in the evening of 15 March, 1994.
3. After his disappearance, on a petition filed before the High Court, the High
Court directed CBI to investigate the matter and to file progress report from time to
time before the High Court. In the progress report filed by the CBI before the High
Court in 1995, the CBI mentioned that till then it had recorded statements of about
70 persons and collected documents from various agencies. However, the
investigation continued and challan was filed in the year 2000. It would not be
relevant here to discuss as to why and how so much time was taken by CBI in
investigating the matter. However, the challan was filed before the Court of M.M. at
Ambala as per the directions of High Court of Punjab & Haryana and accused persons
were supplied copies of charge-sheet along-with documents of the case under
section 207 Cr. P.C. by the court of MM at Ambala. After supply of copies, the
matter was committed to the Sessions court at Ambala being a sessions trial case.
The accused persons seemed to have filed applications for transfer of trial from
Ambala to Delhi before the Supreme Court. As a result thereof, this trial got
transferred to a Delhi Court. After the trial was transferred to Delhi and was
assigned to the court of ASJ, the concerned ASJ heard arguments on charge and
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framed charges against all the four accused persons on 9 January, 2007. However,
the trial did not proceed further as all the four accused persons filed Criminal
Revision Petitions before this Court (High Court of Delhi) against framing of charge,
which are pending disposal. Meanwhile, one of the witnesses i.e. Smt. Amar Kaur
made an application before the High Court that she was of quite old age and may not
live to depose in the court and see the end of trial if the trial proceeded at the pace
it is proceeding and her statement be recorded. It was under these circumstances
that this court directed recording of statement of witnesses. While PW-1 was being
recorded before trial court, all accused persons made applications under section 91
of Cr. P.C. asking the court for directions to CBI to produce certain documents and
statements. In the applications it was mentioned that CBI had withheld and had not
placed on record of the trial court some vital and relevant documents and evidence
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 3 of 14
i.e. statements of witnesses recorded during the course of investigation which could
have serious ramifications regarding outcome of the case. It was alleged that certain
crucial and critical documents were disclosed and supplied by various persons and
witnesses to CBI during investigation and those documents were very important in
the matter and would go a long way in proving the innocence of applicants. These
documents were absolutely necessary for perusal of the Trial Court for imparting
justice.
4. Accused No. 2 SSP Sumedh Singh Saini in his application stated that there was
sufficient material so show that missing person namely Vinod Kumar had a long
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criminal background and had a strong motive to abscond on 15 March, 1994 and
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there was also material to show that after he went missing on 15 March, 1994, he
re-surfaced and met at least four independent and reliable witnesses. He also
appeared in a court on a subsequent date. It was stated in the application that in its
status report filed before the Punjab & Haryana High Court in 1995, CBI had
submitted that it recorded statement of ASI Jagrup Singh, Ct. Surinder Singh, Ct.
Gurnam Singh, Ct. Bhupinder Singh, Ct. Jagrup Singh, Ct. Baldev Singh, HC Harjit
Singh, HC Kulwant Singh and HC Gurwinder Singh, but CBI filed statement of only HC
Kulwant Singh and statements of remaining 8 persons were not placed on record. It
is also stated that CBI had examined Darshan Singh, Gurdayal Singh, Om Prakash
Sikka, Ashwini Sekhari and Rajesh Chadha but their statements were not placed on
record. It was submitted by this accused (accused No. 2, Sumedh Singh Saini) that
non supplying of these statements shall cause serious prejudice to the applicant in
setting up his defence and failure of CBI in supply of these documents amounted to
violation of principles of natural justice and deprived the applicant from his right of
setting up a defence. The applicant had constitutional guarantee and fundamental
right of setting up best defence and it was mandate of law that prosecution should
produce every bit and piece of evidence collected by it during the course of
investigation irrespective of the fact whether the material goes against or in the
favour of the accused. It is stated that supply of these documents and statements
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 4 of 14
were not going to prejudice the state in any manner and therefore these
documents/statement of witnesses should be supplied to the applicant.
5. Similar applications were made by other accused persons taking almost
similar pleas. The learned trial court noted down history of allegations made against
the accused persons before the Punjab & Haryana High Court and also noted down
how Vinod Kumar, arrested by police was not sent to Judicial Custody despite the
order of the Court and was illegally kept in police custody. He also noted the
sequence of events leading to disappearance of Vinod Kumar, victim and the
allegations made against the accused persons and after noting down contentions of
both sides, the trial court came to conclusion that the applications were not
maintainable.
6. The order passed by the learned trial court is attacked by the counsel for the
applicants on the ground that the trial court had not at all given reasons for rejecting
the application and had merely reproduced the facts as disclosed from the charge-
sheet and reply to the application and dismissed the application without reasons.
The other ground for attack on the order of the trial court is that the trial court did
not even consider if these documents were essential or not essential for defence of
the accused and for cross-examination of the witness who was under cross
examination.
7. It is argued by the counsels that withholding of the evidence by prosecution
has been condemned by the courts and it has been consistently held by the courts
that investigating agency should do fair investigation and the entire evidence
collected by the IO should be made part of the charge-sheet. Reliance was placed on
Shakuntala Vs. The State of Delhi, 139 (2007) DLT 178. It was further submitted that
the accused has a right to move an application at the stage of cross examination and
reliance was placed by the applicant on Rajeshwar Singhal Vs. CBI, 2007 (3) JCC 2083.
Kashinath Bhattacharjee Vs. State of Tripura and Another, 2009 Cri. L.J. 1188 was
relied upon to insist that not giving of reasons by the trial court for rejecting prayer
for production of documents was bad in law. Reliance was placed on State of Kerala
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 5 of 14
Vs. Raghavan etc., 1974 Cri. L.J. 1373 to impress that prosecution cannot pick and
choose and refuse to supply to accused copies of statements which are contradictory
to the prosecution case on the ground that the prosecution was not going to rely on
these statements. State of Punjab Vs. Mohinder Singh and Others, 1974 C.L.R. 301
was relied upon to plead that provisions of sections 162, 173 (4) and 207-A(3) Cr.
P.C. impose an obligation upon the prosecution agency to supply copies of
statements of witnesses to enable the accused to obtain a clear picture of the case
and enable the accused to utilize them during the course of cross examination to
establish his defence. S.J. Chowdhary Vs. The State, 1984 Cri. L.J. 964 was cited to
impress upon the court that rejection of prayer for supply of copies of the
documents/ photographs was illegal since the defence was likely to suffer at the
time of cross examination.
8. Every trial must be a fair trial and fair trial is the theme song of provisions of
Criminal Procedure Code. The concept of fair trial cannot vary from case to case,
accused to accused and person to person. It has to be a consistent concept
applicable to all cases. In fact, detailed procedure laid down by Cr. P.C. takes care of
ensuring fair trial to the accused. Thus a trial according to Cr. P.C. has to be
considered a fair trial. It is only if provisions of Cr. P.C. are not followed, one can say
that the trial is not fair trial. An important facet of fair trial is that trial must
conclude within a reasonable time and it must not be fair only to the accused but
must be fair to the society, to the victim and to the witnesses. Where a case
registered of an incident that took place in 1995 of a person allegedly illegally kept
in police custody & presumably murdered at the instance of a senior police officer
and the trial starts sometime in 2007 after framing of charges, and impediments are
put to see that the trial does not proceed, so much so that a witness feels compelled
to make an application to the Court that look by the time the court decides the
revision petition, I may die, the trial cannot be considered as fair to the society or to
the victim or to witness howsoever fair it may be considered to the accused, in the
facts and circumstances of the case.
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 6 of 14
9. The report of CBI on which the petitioners have relied was filed before the
Punjab & Haryana High Court in 1995. This report was within the knowledge of the
petitioners when charge-sheet was filed by CBI before the Court at Ambala in year
2000. It is not the claim of the petitioners that an application was made to the
learned MM for supply of alleged documents or other documents or statements of
persons and it was rejected by the learned MM. The accused persons are police
officials and one of them had held a post of Superintendent of Police. He was not a
naive in the field of criminal law and he knew the importance of the documents. It is
also not the case of the accused persons that these documents formed part of the
charge-sheet and were still not supplied despite demand.
10. An investigation is a complex process. Investigation involving accused
persons, who included a high police official, well versed in criminal law would be
more complex. During investigation, in order to find out the evidence, the
investigating agency may have to examine hundreds of persons to find out as to who
were the persons who had knowledge of the facts concerning the crime. Merely
because CBI tells the court that it has examined 70 persons, the accused does not get
a right to ask that CBI should produce the statement of all 70 persons before him.
The rights of the accused have been crystallized by the Cr. P.C. in categorical manner
regarding copies. Under section 207 Cr. P.C., the rights of accused are crystallized in
respect of supply of document as follows:-
(i) The police report;
(ii) The first information report recorded under section 154:
(iii) The statements recorded under sub-section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses,
excluding there from any part in regard to which a request for such exclusion
has been made by the police officer under sub- section (6) of section 173.
(iv) The confessions and statements, if any, recorded under section
164;
(v) Any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub-section (5) of section 173”
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 7 of 14
Section 91 of Cr. P.C. comes into play during the course of trial. Section 91 of
Cr. P.C., under which the accused persons have made applications, reads as under:-
“(1) Whenever any court or any officer in charge of
a police station considers that the production of any
document of or other thing is necessary or desirable for the
purposes of any investigation, inquiry, may issue a
summons, or such officer a written order, to the person in
whose possession or power such document or thing is
believed to be requiring him to attend and produce it or to
produce it at the time and place stated in the summons or
order.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to
have complied with the requisition if he causes such
document or thing to be produced instead of attending
personally to produce the same.”
In State of Orissa Vs. Debendra Nath Padhi , AIR 2005 SC 359, Supreme Court
while considering this provision observed as under:
“25. Any document or other thing envisaged under
the aforesaid provision can be ordered to be produced on
finding that the same is ‘necessary or desirable for the
purpose of investigation, inquiry, trial or other proceedings
under the Code’. The first and foremost requirement of the
section is about the document being necessary or
desirable. The necessity or desirability would have to be
seen with reference to the stage when a prayer is made for
the production. If any document is necessary or desirable
for the defence of the accused, the question of invoking
Section 91 at the initial stage of framing of a charge would
not arise since defence of the accused is not relevant at
that stage. When the section refers to investigation,
inquiry, trial or other proceedings, it is to be borne in mind
that under the section a police officer may move the Court
for summoning and production of a document as may be
necessary at any of the stages mentioned in the section. In
so far as the accused is concerned, his entitlement to seek
order under Section 91 would ordinarily not come till the
stage of defence. When the section talks of the document
being necessary and desirable, it is implicit that necessity
and desirability is to be examined considering the stage
when such a prayer for summoning and production is
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 8 of 14
made and the party who makes it, whether police or
accused. If under section 207 what is necessary and
relevant is only the record produced in terms of Section
173 of the Code, the accused cannot at that stage invoke
Section 91 to seek production of any document to show his
innocence. Under Section 91 summons for production of
document can be issued by Court and under a written
order an officer in charge of police station can also direct
production thereof. Section 91 does not confer any right
on the accused to produce document in his possession to
prove his defence. Section 91 presupposes that when the
document is not produced process may be initiated to
compel production thereof.
26. Reliance on behalf of the accused was placed on
some observations made in the case of Om Parkash
Sharma v. CBI : 2000CriLJ3478 . In that case the
application filed by the accused for summoning and
production of documents was rejected by the Special Judge
and that order was affirmed by the High Court. Challenging
those orders before this Court, reliance was placed on
behalf of the accused upon Satish Mehra's case (supra).
The contentions based on Satish Mehra's case have been
noticed in para 4 as under:
"The learned counsel for the appellant reiterated the stand
taken before the courts below with great vehemence by
inviting our attention to the decision of this Court reported
in Satish Mehra v. Delhi Admn. : (1996)9SCC766 , laying
emphasis on the fact the very learned Judge in the High
Court has taken a different view in such matters, in the
decision reported in Ashok Kaushik v. State :
78(1999)DLT423 . Mr Altaf Ahmed, the learned ASG for the
respondents not only contended that the decisions relied
upon for the appellants would not justify the claim of the
appellant in this case, at this stage, but also invited,
extensively our attention to the exercise undertaken by the
courts below to find out the relevance, desirability and
necessity of those documents as well as the need for
issuing any such directions as claimed at that stage and
consequently there was no justification whatsoever, to
intervene by an interference at the present stage of the
proceedings.
28. We are of the view that jurisdiction under Section 91 of
the Code when invoked by accused the necessity and
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 9 of 14
desirability would have to be seen by the Court in the
context of the purpose - investigation, inquiry, trial or other
proceedings under the Code. It would also have to be
borne in mind that law does not permit a roving or fishing
inquiry.
11. This provisions of section 91 Cr. P.C. empower a court to summon or order
production of any document which it think necessary or desirable for the purpose of
inquiry or trial. The word ‘document’ through not defined in Cr. P.C., however, has
been defined in section 3 of Evidence Act and would mean any matter expressed or
described upon any substance by means of letter, figures or makes, or by more than
one of those means. The accused under section 91 Cr. P.C. cannot ask the
production of documents as a matter of right. However, while making application
he has to specify the document and show its relevance. He cannot ask the court to
make roving and fishing enquiry as has been done in the applications under
consideration. Only when he discloses the nature of document and its relevance,
the court to decide if the documents sought to be summoned was necessary or
desirable for the just decision of the case.
12. During arguments, counsel for the parties tried to impress upon the court
that PW-1 was under cross examination and the documents sought in the
application should be allowed before cross examination of this witness was
completed. However, it has not been stated either in the application moved by the
accused persons or during the arguments before this court that how statement of
any of the persons mentioned in the application, or any of the unknown, unspecified
documents allegedly in custody of CBI was relevant for cross examination of PW-1 or
PW-2. The only argument made was that these documents were necessary for
defence of the accused and no prejudice was going to be caused to CBI and these
documents should be supplied to the applicants.
13. When imputations are put to an accused person in the form of charge, the
only question put to the accused person is whether he pleads guilty or not. No
question is asked to the accused as to what is his defence. The only defence which is
taken in all criminal trials is the defence of innocence of accused persons. Even in
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 10 of 14
summon trial cases, where the law provides that accused can be asked question as
to his defence, normally the only defence taken is “I am innocent”. Defence is
something known to the accused if the accused claims a specific defence and states
that the documents were required to help him in cross examination of the witness
so that he can ask questions to the witness about his defence then he has to disclose
his defence to the Court in the application made by him and state how the witness
could be asked questions on such defence with the help of document. The only
defence taken in this case is that the victim was facing trial in several criminal cases
and he had reasons to abscond. In order to prove this defence, the accused persons
in their application were liable to say as to which of the alleged persons examined by
CBI had given statement that victim was facing trials in different criminal cases or he
had absconded due to such cases and how the alleged statement of alleged persons
were relevant for the court to consider at the stage of examination of PWs.
14. The arguments advanced by the counsels that the trial court did not consider
the relevancy of these documents does not hold ground because in none of the
applications, the applicants had stated or described the relevancy of each such
document or statement to the Trial Court. If the applicants /accused chose to
remain silent about the relevancy of the alleged unspecified documents and
statements & did not disclose to the court what were the contents of these
documents & statements and why they were relevant, they cannot expect the trial
court to discuss the relevancy of the documents. In fact, the applications on this
count are absolutely vague and from the arguments it can be gathered that the
accused persons were trying to aim at an unknown target in darkness. None of the
accused persons disclosed what were the statements made to CBI, what were the
documents collected by CBI except that in one of the application accused has relied
upon an order sheet of a civil court and reproduced the order-sheet showing
attendance of the victim.
15. I consider that the trial court, could have summarily dismissed the
application on the ground that accused persons have not shown relevancy of the
alleged undisclosed documents and merely saying that some alleged documents
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 11 of 14
were necessary for the accused persons to take their defence is no argument.
Unless accused persons disclosed the contents & nature of the documents and knew
how the documents were going to affect their defence, the accused persons could
not have asked for them.
16. The stage at which the applications are made by the accused persons i.e.
when the examination of witnesses started after about 13 years of the incident
itself, shows that the applications were made with the intention to delay the trial
and not with an intention to take some specific defence. Moreover, trial court had
given liberty to the accused persons to produce relied documents at the stage of
defence. An argument is raised that by giving this liberty, the trial court has
admitted the relevancy of the documents. I fail to understand how this argument
could have been raised when neither trial court has seen nor the accused persons
have seen the documents. The trial court could have commented upon the
relevancy of documents had the same been seen by it. The documents/statements
sought are in respect of a report made by CBI that it has examined 70 persons. It is
not the case of CBI that those 70 persons were having knowledge of the facts of the
case and were to be cited as witnesses in the case.
17. It is settled law that accused can demand copy of only those
documents/statements on which reliance is placed by the prosecution to prove its
case. If the accused has knowledge of other documents which can prove his
innocence, he is at liberty to produce all such documents in his defence and if he
seeks assistance of the court in producing those documents the contents of which
are known to him, the court definitely would help in production of those documents
which are available, but, accused cannot be allowed to scuttle the trial by making
frivolous applications and to stall the examination or cross examination of witnesses.
18. Various judgments relied upon by the petitioners are of no help to them. In
Neelesh Jain Vs. State of Rajasthan, 2006 Cri. L. J. 2151 , the court had allowed
production of earlier report filed by prosecutrix’s father to be used by the accused to
confront the father of prosecutrix when he stepped into witness box. Similarly, a
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 12 of 14
report lodged by prosecutrix at Mahila Thana was allowed to the produced as that
would have thrown some light on the controversy. In this case, the court had
allowed the documents, the nature and contents of which were known to the
accused and which were authored by the witness so that witness could be
confronted with contents.
19. In Shakuntala Vs. The State of Delhi, 139 (2007) DLT 178, (Supra) the
Revision Petition was filed by the appellant against the order on charge and the
court observed that the entire material placed before the Court in the form of
earlier complaint and statements made against the husband, should have been
considered by the court since these statements showed that it was her own case
that her father-in-law & mother-in-law were cooperating her for action against their
son and they had gone to the extent of disowning their son and supported their
daughter-in-law. However, daughter-in-law made both of them accused in her
subsequent complaint. In Rajeshwar Singhal Vs. CBI, 2007 (3) JCC 2083 (Supra) , two
documents stated in the application under section 91 Cr. P.C. were seized by CBI in
the search of petitioner’s premises and the court allowed the application for
production of these two documents since the accused relied upon these documents
showing the relevancy of these documents. State of Kerala Vs. Raghavan etc., 1974
Cri. L.J. 1373 (Supra), was not a case under section 91 Cr. P.C. and the provisions of
Section 91 were not even discussed. Similarly, in State of Punjab Vs. Mohinder Singh
and Others, 1974 CLR 301 (Supra), the court had not at all considered the provisions
of Section 91 Cr. P.C. and had rather observed that accused had a right to the copies
of statements made by the witnesses during investigation at the stage of supply of
documents. This was not a case where documents were asked after charge was
framed and statements of witnesses were being recorded. In S.J. Chowdhary Vs. The
State, 1984 Cri.L.J. 864, the accused had demanded a copy of cassette containing
tape recorded conversation allegedly having taken place between accused and other
persons. A transcript of conversation was supplied to the accused but duplicate
cassette was not supplied. The court directed for supply of a duplicate cassette.
Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 13 of 14
20. It is settled law that it is the statutory provisions which govern the trial and
the court has to act in accordance with various provisions of Cr. P.C. The judgments
of High Courts and Supreme Court are given in facts and circumstances of each case.
Judgments are not to be read as a statute. Each case represents its own problem
adjudicated upon by the Court and unless and until the High Court and Supreme
Court lay down a general principle of law to be followed by the courts below, the
judgments would have to be considered as adjudication of the particular issue
before the Court. I, therefore, consider that the judgment relied upon by the
petitioner are of no help to the petitioner. The trial court rightly dismissed the
applications made by the petitioners.
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26 July, 2010 SHIV NARAYAN DHINGRA, J.
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Crl. M.C. No 1272, 1356, 1861 & 1862 of 2010 Page 14 of 14