Accused Entitled to Inspect Original Foreign Documents During Cross-Examination to Verify Statutory Authentication Under Evidence Act

The Petitioner, Ritu Butalia, was subjected to a search and seizure operation by the Income Tax Department in February 2016

Following the search, eight complaints were filed alleging undisclosed foreign assets in the British Virgin Islands (BVI) and Singapore under Sections 276C(1) and 277 of the Income Tax Act, 1961, and Section 191 of the IPC

During pre-charge evidence, the Complainant (CW-1) exhibited foreign documents (Ex. CW-1/6 and Ex. CW-1/10) which were marked "Original Seen and Returned" (OSR)

The Petitioner moved an application for the production and inspection of the original documents, contending they lacked mandatory diplomatic authentication.

The Trial Court dismissed the application on December 20, 2017, labeling it a delay tactic and imposing a cost of ₹5,000

The Petitioner challenged this order before the High Court

Whether the accused has a right to inspect original foreign documents at the stage of cross-examination to challenge their admissibility under the Indian Evidence Act

Whether documents received through official government-to-government channels (TIEA/DTAA) are exempt from the mandatory proof requirements of Section 78(6) of the Indian Evidence Act

The court applied Section 78(6) of the Indian Evidence Act, 1872, which mandates that public documents of a foreign country must be proved by the original or a certified copy bearing a seal of a Notary Public or an Indian Diplomatic Agent

It also referenced Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, regarding the legal recognition of notarial acts performed by Indian diplomatic officers abroad

Furthermore, the court emphasized the fundamental principle that mere marking of a document as an exhibit does not dispense with the requirement of proving it according to the rules of evidence

The Court reasoned that while the documents were received via official international channels (TIEA and DTAA) through the Ministry of Finance, such transmission does not automatically exempt the documents from statutory proof requirements

Since the Petitioner’s defense rests on the alleged lack of diplomatic certification—a requirement under Section 78(6) of the Evidence Act—denying inspection would cause grave prejudice

The Court observed that even though the documents were marked "OSR" during examination-in-chief, the right to a fair trial includes the right to effective cross-examination and verification of the original's physical attributes, such as seals or certificates

The Court found that the Trial Court erred in dismissing the request as a "delay tactic," noting that the documents were already in the Department's possession and their production would not cause unjustified delay

It held that the Petitioner is entitled to inspect the original documents to verify the presence or absence of diplomatic authentication

The Court directed Respondent No. 2 to produce the originals of Ex. CW-1/6 and Ex. CW-1/10 during the next cross-examination hearing of CW-1

The cost of ₹5,000 imposed by the Trial Court was set aside, with a direction to the Petitioner to proceed with the cross-examination immediately after inspection without seeking further adjournments