Accused Entitled to Inspect Original Foreign Documents During Cross-Examination to Verify Statutory Authentication Under Section 78(6) Evidence Act

The Petitioner challenged a common order dated 20.12.2017 passed by the Ld. ACMM, Delhi, which dismissed her application for the production and inspection of original foreign documents

Following a search and seizure operation in 2016, the Income Tax Department filed eight complaints alleging undisclosed foreign assets in the British Virgin Islands (BVI) and Singapore under Sections 276C(1) and 277 of the Income Tax Act, 1961

During pre-charge evidence, the complainant (CW-1) exhibited photocopies of foreign bank and entity records (Ex. CW-1/6 and CW-1/10), which were marked "Original Seen and Returned" (OSR).

Petitioner moved an application to inspect the originals, contending they lacked mandatory diplomatic authentication.

The Trial Court dismissed the application as a "delay tactic" and imposed costs of Rs. 5,000/-.

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

Whether the lack of diplomatic authentication under Section 78(6) of the Indian Evidence Act renders foreign documents obtained via official government channels inadmissible.

The court primarily 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 certificate under the seal of a Notary Public or an Indian Diplomatic Agent.

It further referred to Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, which empowers diplomatic officers to perform notarial acts.

The court underscored the principle that the right to a fair trial includes the right to effective cross-examination, and the 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 observed that while the documents were received through official "Exchange of Information" channels under TIEA and DTAA treaties, this official transmission does not automatically exempt them from statutory proof requirements under Section 78(6) of the Evidence Act.

Although the Trial Court marked the documents "OSR," the High Court reasoned that if the defense intends to challenge the admissibility based on the absence of necessary diplomatic seals, the accused must be allowed to inspect the originals to verify such compliance.

The Court held that denying this inspection causes grave prejudice to the defense, as the documents form the core of the prosecution's case.

It further noted that procedural rights regarding evidence cannot be bypassed solely on the ground of preventing trial delay, especially when the documents are already in the Department's possession.

It held that the Petitioner is entitled to inspect the original documents (Ex. CW-1/6 and Ex. CW-1/10) during the cross-examination of CW-1 in the presence of the Magistrate.

The Respondent was directed to produce the originals at the next hearing, with the caveat that cross-examination must proceed immediately thereafter.

Additionally, the cost of Rs. 5,000/- imposed on the Petitioner was set aside.