Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 27 August, 2021
Decided on: 10th November, 2021
+ CRL.M.C. 1338/2021 and CRL.M.A. 7654/2021 (stay)
CENTRAL BUREAU OF INVESTIGATION ... Petitioner
Represented by: Mr. Anupam S Sharma, SPP for CBI
with Ms. Sudha Rani Ralangi,
Director of Prosecution-CBI, Mr.
Prakarsh Airan and Ms. Harpreet
Kalsi, Advs.
versus
M/S. INX MEDIA PVT. LTD. & ORS. ..... Respondents
Represented by: Mr. Shailesh Poria, Adv. for R-1.
Mr. Sidharth Luthra, Sr. Adv. with
Mr. Akshat Gupta, Mr. Pankaj
Singhal and Ms. Shubhangi Jain,
Advs. for R-3.
Mr. Pramod Kumar Dubey, Sr. Adv.
with Mr. Nitin Saluja, Mr. Vikalp
Sharma and Mr. Akshat Sharma,
Advs. for R-4.
Mr. Vikas Pathak, Adv. for R-7.
Mr. Kumar Vaibhaw, Mr. Himanshu
Gupta, Mr. Mohd. Ashaad, Advs. for
R-8.
Mr. Aditya Wadhwa, Mr. Sougat
Mishra and Mr. Ayush Shrivastava,
Advs. for R-9.
Mr. Sidharth Aggarwal, Sr. Adv. with
Mr. Varaz Maqbool, Mr. Abhinav
Sekhri, Mr. Chandan Kumar and Mr.
Chaitanya Sundariyal, Advs. for
R-10.
Mr. Vikas Arora and Ms. Radhika
Signature Not Verified
Digitally Signed By:JUSTICE
MUKTA GUPTA
Signing Date:10.11.2021
21:04:51
CRL.M.C. 1338/2021 Page 1 of 14
Arora, Advs. for R-11.
Mr. Sandeep Kapur, Mr. Mridul
Yadav, Mr. Aashneet Singh Anand,
Advs. for R-13.
Mr. N. Hariharan, Sr. Adv. with Mr.
Arshdeep Singh Khurana, Mr.Ayush
Aggarwal, Mr.Siddharth S. Yadav,
Mr.Varun Deswal, Ms. Akriti G.
Mittal, Mr.Harsh Mittal, Advs. for R-
14.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
th
1. By this petition, the CBI challenges the impugned order dated 5
March, 2021 passed by the learned Special Judge on the applications filed
by the accused under Section 207 Cr.P.C. seeking supply of documents.
2. By the impugned order, the learned Special Judge noted that the
documents sought through these applications were broadly:
a. Deficient documents
b. Dim or illegible copies
c. Incomplete or torn documents
d. Part of documents which have been filed in Court by CBI
e. The documents though seized or collected during investigation, but
not filed in Court
f. The documents referred to or reflected in correspondence of CBI
and other authorities or in statements of witnesses
3. During the course of hearing before the learned Trial Court, no
dispute was raised by the CBI in respect of the documents mentioned at
serial Nos. (a), (b) and (c), however documents mentioned at serial Nos.(d),
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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(e) and (f) were disputed and the stand of the CBI was that since the same
were not relied upon by the CBI in the charge-sheet, the documents
mentioned in the category (d), (e) and (f) cannot be given to the accused.
4. Vide the impugned order, the learned Special Judge directed CBI to
supply all the pages/parts thereof or the entire documents in relation to the
documents few pages whereof or parts of the said documents are relied upon
and filed by the CBI i.e. the documents at serial No. '(d)'. As regards the
documents at serial nos. '(e)' and '(f)' are concerned, referring to the various
decisions of the Hon'ble Supreme Court and this Court as also relying upon
Clause 12.32 of the CBI (Crime) Manual, 2020 which lays down the
procedure of inspection of documents kept in the Malkhana on Court orders,
the learned Special Judge permitted inspection of records of the case lying in
Malkhana of CBI during the working hours of the CBI Malkhana as per
provisions contained in Clause 12.32 of CBI (Crime) Manual and other
clauses of the Manual and the policy, guidelines or rules framed on this
issue, if any, to the learned defence counsel or their associates as per the
requirements by way of a written authorization. The concerned SP was also
directed to give necessary directions to the Officer Incharge of CBI
Malkhana to depute requisite and responsible staff to facilitate the inspection
under the direct supervision of some responsible officer. The HIO or IO of
the case was also directed to be present at the time of said inspection so as to
facilitate in finding the nature and relevance of such documents. The Court
also directed that the security of records had to be maintained and any
tampering thereof shall have to be ruled out and the inspection be completed
within 10-15 days.
5. Further, to rule out the apprehension of CBI that inspection of
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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CRL.M.C. 1338/2021 Page 3 of 14
documents if permitted may hamper further investigation, the learned
Special Judge also clarified that this permission of inspection of records
lying in the Malkhana granted by the Court shall not be in respect of those
documents in relation to which the investigation by the CBI is still pending,
as has also been indicated in the charge sheet itself and even witnesses
related to such documents have yet not been examined. It was also noted
that the issue whether or not any document supplied to the accused persons
as a result of this order is of sterling quality or can be considered at the stage
of charge for uprooting the case of prosecution is kept open to be considered
at the stage of framing of charge itself.
6. Contention of learned counsel for the CBI is that the respondent
cannot seek production of the documents at this stage as any document
which is required to be produced under Section 91 Cr.P.C. can be utilized by
the accused at the stage of defence only to prove his innocence, as held by
the Hon’ble Supreme Court in (2005) 1 SCC 568 State of Orissa Vs.
Debendra Nath Padhi . Even in the decision relied upon by the learned
Special Judge reported as AIR 2017 SC 5846 Nitya Dharmananda @ K.
Lenin & Anr. Vs. Sri Gopal Sheelum Reddy it is made clear that the accused
cannot invoke Section 91 Cr.P.C. at the time of framing of charge, however,
if the Court is satisfied that there is material of sterling quality, which has
been withheld by the investigator/ prosecutor, it can be summoned by the
Court. It is stated that since the proceedings before the learned Special
Judge are at the stage of compliance of Section 207 Cr.P.C. and has not
reached the stage of charge as yet, hence the prayers in the application on
which the impugned order was passed is premature. Further, if learned
Special Judge is satisfied that prosecution has some document which has a
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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CRL.M.C. 1338/2021 Page 4 of 14
crucial bearing on the issue of framing charge and is of sterling quality, the
Court can summon the same at the stage of charge. Thus, it is within the
ambit of the learned Special Judge to summon the said documents and the
accused cannot be permitted to carry out the inspection of the documents in
the Malkhana records. It is further submitted that since further investigation
is continuing, the effectiveness of the further investigation will be
compromised, hence no inspection of the document be permitted to the
accused. Further, as per Section 207 Cr.P.C. inspection of only relied upon
documents referred in Clause (v) of Section 207 Cr.P.C. can be permitted in
case the documents are voluminous.
7. According to learned counsel for the CBI, it is impossible for the CBI
to pre-empt and segregate the documents which may be required later during
investigation though not required for investigation at present. Since all
documents relied upon by the CBI have been provided to the accused, no
prejudice has been caused to them and their right to fair trial has also not
been infringed. The right of fair trial has to be not only from the perspective
of the accused but also from the rights of the society at large. It is claimed
that the impugned order has been passed by the learned Special Judge in
violation of Article 50 of the Constitution of India and reliance in this regard
is placed on the decision of the Hon’ble Supreme Court reported as AIR
1980 SC 326 State of Bihar & Anr. Vs. J.A.C. Saldanha & Ors . It is further
stated that even as per the CBI Manual inspection of the documents in
Malkhana by the learned counsel for the accused can be only in respect of
the documents mentioned in proviso to Section 207 Cr.P.C. and Para 12.32
of the CBI Manual only mentions the procedure to be adopted during such
inspection. The accused do not have an indefeasible legal right to claim
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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every document on the Police file or even the portions which are permitted
to be excluded from the documents annexed to the report under Section 173
Cr.P.C. Reliance placed by learned Special Judge on the decision reported
as AIR 2013 SC 613 V.K. Sasikala Vs. State is misconceived as in the said
decision the documents though not relied upon by the prosecution had been
forwarded to the Court under Section 173(5) Cr.P.C. The decision of the
Hon’ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 titled ‘ In re:
To issue certain guidelines regarding inadequacies and deficiencies in
th
criminal trial Vs. State of Andhra Pradesh & Ors . dated 20 April, 2021
pointed out during the course of hearing has no application to the facts of the
case. The decisions relied upon by the respondents also have no application
to the facts of the case and hence the petition be allowed and the impugned
order be set aside.
8. Learned counsels for the respondents submit that at the stage of
consideration of framing charge, the Court is bound to consider the evidence
collected by the investigating officer during investigation of the case,
whether relied upon or not by the prosecution. Every document which is
seized is required to be produced before the Court. Hon’ble Supreme Court
in Suo Moto W.P.(CRL) 1/2017 has laid down detailed guidelines and one
of the guidelines which was left out i.e. in respect of list of all un-relied
materials/ documents/ statements, has also been directed to be given to the
accused. Relying upon the decision reported as 2014 SCC Online Del 6931
Ashutosh Verma Vs. CBI it is contended that even at the stage of scrutiny of
documents under Section 207 Cr.P.C., the Court is required to supply all
documents to the accused even if the same are not relied upon by the
prosecution. A conjoint reading of Sections 207/208 read with Section 173
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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Cr.P.C. clarifies that even those documents which have been forwarded to
the Magistrate during investigation are to be supplied to an accused person
in addition to the documents relied upon by the prosecution. Without
prejudice, it is further submitted that CBI cannot be allowed to be selective
in supply of the documents; since the CBI has already supplied those un-
relied documents which have been filed before the learned Trial Court while
choosing not to supply those un-relied documents which are kept in the CBI
Malkhana. There being no difference between the two sets of unrelied
documents i.e. those placed before the Court and the one kept in CBI
Malkhana, the respondents are entitled to at least an inspection of the said
un-relied documents. It is only on inspection that the relevancy and the
sterling quality of the documents can be found out. Further, the CBI Manual
itself confers powers on the Court to grant inspection of the documents lying
in the Malkhana of the CBI and reliance in this regard is placed on Clause
13.28 of the CBI Manual, 2005 which has been re-christened as Clause
12.32 in the CBI Manual, 2020. There being no illegality in the impugned
order, the petition be dismissed.
9. The issue raised in the present petition is to a great extent dealt by the
Hon’ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 wherein the
Hon’ble Supreme Court issued guidelines regarding inadequacies and
deficiencies in criminal trial and while the necessary draft rules were
approved, in relation to the documents collected during the course of
investigation and not relied upon by the prosecution thus not permitting
copy thereof to the accused, the Hon’ble Supreme Court in Para 11 noted as
under:
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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“ 11. The amici pointed out that at the commencement of trial,
accused are only furnished with list of documents and
statements which the prosecution relies on and are kept in the
dark about other material, which the police or the prosecution
may have in their possession, which may be exculpatory in
nature, or absolve or help the accused. This court is of the
opinion that while furnishing the list of statements, documents
and material objects under Sections 207/208, Cr. PC, the
magistrate should also ensure that a list of other materials,
(such as statements, or objects/documents seized, but not relied
on) should be furnished to the accused. This is to ensure that in
case the accused is of the view that such materials are
necessary to be produced for a proper and just trial, she or he
may seek appropriate orders, under the Cr. PC. for their
production during the trial, in the interests of justice. It is
directed accordingly; the draft rules have been accordingly
modified. [Rule 4(i)] ”
10. Further, reproducing Section 91 Cr.P.C. in the footnote does not
qualify the directions in Para 11 of the judgment for the reason Hon'ble
Supreme Court in response to the suggestion of the learned amicus curiae
pointed out that there may be material with the Police or the prosecution
which may be exculpatory in nature, or absolve or help the accused,
however the accused is kept in dark with the said material. Hon'ble
Supreme Court clearly directed that while furnishing the list of statements,
documents and the material objects under Section 207/208 Cr.P.C., the
Magistrate should also ensure that a list of other materials (such as
statements, or objects/ documents seized, but not relied upon) should be
furnished to the accused so as to ensure that in case the accused is of the
view that such materials are necessary to be produced for a proper and just
trial, she or he may seek appropriate orders under the Code of Criminal
Procedure for their production during the trial. The draft Rules were
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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accordingly modified and considering the efficacy of the draft Rules, the
Hon’ble Supreme Court directed all High Courts to take expeditious steps to
incorporate the said draft Rules 2021 as part of the Rules governing criminal
trial within six months from the date of the order i.e. April 2020.
11. In view of the decision of the Hon’ble Supreme Court, CBI cannot
take the plea that since the Rules have not been notified as yet pursuant to
the decision of the Hon’ble Supreme Court, the directions as laid down in
Para 11 of the judgment whereby the draft Rules were amended, would not
have the force of law till the Rules are notified. In the decision reported as
(1997) 6 SCC 241 Vishaka and Others vs. State of Rajasthan & Ors .
Hon'ble Supreme Court in a writ petition under Article 32 of the
Constitution of India, in the absence of an enacted law to provide for the
effective enforcement of the basic human right of gender equality and
guarantee of sexual harassment and abuse and more particularly against
sexual harassment at work places, laid down the guidelines and norms for
due observance at all work places or other institutions, until a legislation is
enacted for the purpose. Hon'ble Supreme Court noted that the guidelines
were laid down in exercise of power under Article 32 of the Constitution of
India for enforcement of the fundamental rights and further emphasized that
the guidelines laid down should be treated as law declared by the Supreme
Court under Article 141 of the Constitution of India. In Suo Moto Writ
(Crl.) 1/2017 directions have been issued by the Hon'ble Supreme Court
under Article 32 of the Constitution of India in order to ensure uniformity
and clarity, to overcome the deficiencies which occur in the course of
criminal trials and certain practices adopted by the trial courts in criminal
proceedings thereby having a tendency of prolonging proceedings. Hon'ble
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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Supreme Court also noted that Draft Rules of Criminal Practice 2020 as
formulated and directed to be notified were not contrary to the provisions of
Cr.P.C. Contention of learned counsel for the CBI that the same is violative
of Article 50 of the Constitution of India which provides for separation of
judiciary from executive deserves to be rejected for the reason the Draft
Rules were in no way repugnant or contrary to the provisions of the Cr.P.C.
12. In State of Bihar & Anr. Vs. J.A.C. Saldanha & Ors (supra) relied
upon by learned counsel for the CBI, Hon'ble Supreme Court was dealing
with an appeal against the order of the High Court which quashed the order
of the Magistrate keeping in abeyance, acceptance of the final report
submitted awaiting further investigation being carried out. In the light of
these facts, Hon'ble Supreme Court held that general power of
superintendence conferred by Section 3 of the Police Act, 1861 would
comprehend the power of the State Government to direct further
investigation if the circumstances so warrant and there is nothing in the
Code of Criminal Procedure contrary thereto, so as to limit this power.
Supreme Court further held that sub Section (8) of Section 173 is not the
source of power of the State Government to direct further investigation, it
enables the officer in charge of a police station to carry on further
investigation even after a report under Section 173(2) is submitted to the
Court. It was held that if State Government has otherwise power to direct
further investigation, it is neither curtailed, limited nor denied by Section
173(8) Cr.P.C. It is in the light of these facts, the Hon'ble Supreme Court
held that investigation of an offence is the field exclusively reserved for the
executive through the police department, superintendence over which vests
with the State Government. Once it investigates and finds an offence having
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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been committed, it is its duty to collect evidence for the purpose of proving
the offence. Once that is completed and the investigating officer submits
reports to the Court requesting the Court to take cognizance of the offence
under Section 190 of the Code, its duty comes to an end.
13. In the present case after the Court has taken the cognizance and is in
the process of supplying documents, applications have been filed under
Section 207 Cr.P.C. wherein to ensure a fair trial, the impugned order has
been passed by the learned Special Court keeping due regard to the fact that
at that stage it was deciding neither the relevancy of the unrelied documents
nor whether they were of sterling quality.
14. Learned counsel for the CBI has vehemently relied upon the decision in
Debendra Nath Padhi (supra). In the said decision Hon'ble Supreme Court
clarified that the issue before it was not about the exercise of jurisdiction for
quashing under Section 482 Cr.P.C. where alongwith the petition, the
accused may file unimpeachable evidence of sterling quality and on that
basis seek quashing, but about the right claimed by the accused to produce
material at the stage of framing of charge. In the present case, the accused are
not producing any document of their own but wanting to inspect and seek
documents which are in the possession of CBI and are being kept back from the
Court.
15. Further contention of CBI is that the documents can be sought under
Section 91 Cr.P.C. only at the stage of defence and hence the stage for seeking
inspection of the un-relied documents in possession of the CBI and kept in CBI
Malkhana has not arrived. It is trite law that an accused can build the defence
not only by leading defence evidence but even while cross-examining the
prosecution witness. Further, a document which is relevant and is of sterling
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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quality can also be looked into by the Court at the time of framing of charge
and the Court is not barred to exercise its power to summon or rely upon the
said document at the stage of charge, if it is of sterling quality and has a
crucial bearing on the issue of framing of charge. Therefore, at the time of
framing of charge an accused can bring to the notice of the Court that an un-
relied document recovered during the course of investigation and kept back
by the investigating agency is relevant and has a bearing on the prosecution
case only if the accused is aware of the said document.
16. Indubitably, while passing an order of inspection of unrelied upon
documents, the Court is bound to strike a balance between the competing
interest of ensuring a fair trial to the accused as also maintaining the sanctity
of further investigation, in case further investigation is to be carried on.
Case of learned counsel for the CBI before this Court is that since further
investigation is going on, permitting the accused or their representatives to
inspect the documents lying in Malkhana will hinder the investigation. As
noted above, the learned Trial Court directed the CBI to supply copies of all
the pages/ part thereof, or the entire document to the accused persons in
relation to documents only a few pages or part of document were being
relied by the CBI. In relation to the documents which have not been filed in
the Court, the learned Trial Court did not direct the CBI to produce the said
documents in Court and held that the ends of justice would be met if the
accused persons are permitted to inspect the said documents lying in the
Malkhana of CBI and to find out if any such document is relevant or vital
for their defence or is of sterling quality to demolish the very case of
prosecution and after making inspection learned counsel representing these
accused shall let the Court know the details of these documents so that
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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copies thereof can be supplied to them.
17. By the impugned order, the learned trial Court has already clarified
that the permission to conduct inspection being granted by the Court was not
in respect of those documents in relation to which the investigation by the
CBI was still pending. Therefore, the apprehension of the CBI that
inspection would hinder in the further investigation is wholly unwarranted.
Claim of learned counsel for the CBI is that the CBI at the moment cannot
pre-empt which document would be necessary for the further investigation.
In the present case charge sheet has already been filed and thus the claim of
CBI that it is not aware which document would be relevant for further
investigation is unwarranted.
18. In the decision reported as (2012) 9 SCC 771 V.K.Sasikala vs. State
Hon'ble Supreme Court noted a common feature that seizure of a large
number of documents takes place in the course of investigation in a criminal
case and that after completion of the process of investigation and before
submission of the report under Section 173 Cr.P.C., the investigating officer
is bound to apply its mind to the two sets of documents i.e. the one which
support the prosecution case and the other which support the accused,
however it is not impossible to visualise a situation where the documents
favouring the accused are not forwarded to the Court, even though the
prayer in the said case was in relation to the documents forwarded to the
Court but not relied by the prosecution.
19. Further, Clause 12.32 of the CBI (Crime) Manual 2020 also lays
down the procedure of inspection of documents kept in the Malkhana on
Court order. Thus Clause 12.32 of the CBI (Crime) Manual 2020 recognizes
the right of the accused to carry out inspection as per the procedure laid
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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down in the Manual of the CBI.
20. In view of the discussion aforesaid and the judgment of the Hon’ble
Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 this Court finds no
infirmity in the impugned order passed by the learned Special Judge.
21. Petition and application are dismissed.
22. Order be uploaded on the website of this Court.
(MUKTA GUPTA)
JUDGE
NOVEMBER 10, 2021
‘ga’
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Digitally Signed By:JUSTICE
MUKTA GUPTA
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