TMI Blog2015 (5) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... gued straightway that he is trying for making of any roving or fishing inquiry or is making a request which may be unreasonable. It is settled law that in a criminal trial the prosecution has to be absolutely fair and impartial. The main purposes of a criminal trial is not to get some one convicted. The object is to discover the truth and punish the accused if found guilty. The documents which he himself cannot procure for the purposes of putting his defence have to be requisitioned by invoking Section 91 Cr.P.C., if the Court is satisfied that those are necessary or desirable for the purpose of trial. The defence has to be built up from day one of the trial. The right to defend, which flows from the fundamental right to "life" and "personal liberty" enshrined in Article 21 of the Constitution of India, is not an illusionary right, but a substantive one. The tool given in the hands of the court to discover the truth of the controversy before it. The power under Section 91 Cr.P.C. to discover the truth and to do complete justice to the accused. Naturally, the discretion vested in the Court must be applied judiciously, while keeping in mind the constitutional mandate, and the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commonwealth Games 2010 ought not to have been awarded to Swiss Timing/Omega, but to a Spanish company by the name of MSL Software. 5. By the impugned order dated 16th May, 2015 the petitioner's application dated 7th April, 2015 under Section 91 of the Code of Criminal Procedure, 1973 seeking production of Call Detail Records for the phone number 9811806773 of Mr. Jyoti Chhabra being a representative of a company by the name of ATOS Origin, was dismissed. 6. The petitioner had prayed in the application for the production of Call Detail Records for the purpose of cross-examining PW-18 Mr. Sujit Panigrahi. In his testimony before the Trial Court on 7th April, 2015, PW-18 Sujit Panigrahi has identified the phone number 9811806773 as belonging to one Mr. Jyoti Chhabra of ATOS Origin , who was also a potential bidder for the proposed TSR RFP. It is the case of the petitioner that he was also in a commercial relationship with Microsistemas Lagasca S. A. de Madrid (hereinafter referred to as MSL ), which had in fact bid for the TSR RFP. 7. It is also the case of the Petitioner that PW-18 Mr. Sujit Panigrahi was in regular contact with ATOS Origin and MSL through the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose. The name of Mr. Jyoti Chhabra is not mentioned in the list of witnesses. The petitioner at the initial stage to cross the star witness on this aspect. The suggestion of the respondent to summon Jyoti Chhabra as defence witness has no consequence when the PW-18 the main witness is under cross-examination and at the present stage is the most appropriate to produce the details of mobile call record of Jyoti Chhabra. The other suggestion of the respondent is that the witness be recalled in subsequent stage has no bearing as the petitioner has a right to built up his defence from the day one. 12. It is alleged by Mr. Sibal that these Call Detail Records are crucial for the petitioner to establish his defence and disprove the principal charge of a criminal conspiracy to favour M/s. Swiss Timing; and, for the Court to discover the truth about the allegations against the accused and no prejudice would cause if the respondent would produce their documents which are relevant and connected with the present case. Mr. Sandeep Sethi, learned Senior counsel for the petitioner has also referred few decisions in support of petitioner's case. 13. It is also matter of record that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra) was again considered and referred to by the Supreme Court of India in V.K. Sasikala vs.: (2012) 9 SCC 771. After reproducing paragraph nos. 216 to 221 in Manu Sharma's case, it was observed that 'the concept of a free and fair trial, painstakingly built up by the Courts on a purposive interpretation of Article 21 of the Constitution was much larger and was not limited only to the compliance with the provisions of section 207 of the Code.' Their Lordships, inter alia, observed that the individual notion of prejudice, difficulty, or handicap, in putting forward a defence would vary from person to person and there can be no uniform yardstick to measure such perceptions. Their Lordships further observed : It is not for the prosecution or for the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop and if the same is founded on a reasonable basis it is the duty of the Court as well as the prosecution to ensure that the accused should not be made to labour under any such perception and the same must be put to rest at the earliest. Such a view, according to us, is an inalienabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t before the Court. 59...Undoubtedly, Principles of Natural Justice are an integral part of a fair trial. Article 21 of the Constitution of India and the Universal Declaration, mentioned above, both guarantee a fair trial to the accused. Even if the Code does not contain any provision for providing all the evidence collected by the investigating agency such a provision has to be read into the Code. For principle of natural Justice audi alteram partem would have to be read into the Code. It is trite to state that opportunity of hearing means effective and substantial hearing. Truncated evidence, half hidden evidence given to the accused or placed before the Court, do not amount to effective hearing. Thus, under the principle of audi alteram partem the accused would have the right to access the evidence which is in his favour but which the prosecution is unwilling to produce in the Court and whose disclosure does not harm the public interest. In case the relevant evidence in favour of the accused is not supplied, we would be creating Kangaroo Courts and weaving an illusion of justice. Such Courts and such illusions are an anathema to the judicial sense of fair play........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re no pleadings, but the request was made during the arguments it was submitted by learned counsel for the petitioner that these documents are required for the purpose of cross examination of prosecution witnesses. It was held by the court that it was a vague submission which was made. The prosecution witnesses had already been examined and cross examined. Even otherwise it was held that in any case no relevancy of any of those documents and the purpose of putting them in cross examination to any prosecution witness, have been spelt out. Merely by saying that these documents were required for the purpose of cross examination was not enough. The situation, however in the present case is entirely different as the application was made during the course of cross-examination of PW-18 when few facts were disclosed and reasons were also spelt out in the application. Therefore, the same referred decision is distinguishable in view of different circumstances in the present case. 18. In the case of Ravinder Kumar Chandolia (supra) the court after examining the details of documents sought to be produced by the otherside for the purpose of cross-examination of PW-7, in para 14, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself. According to him that these documents are connected with the case in hand. Therefore, it cannot be argued straightway that he is trying for making of any roving or fishing inquiry or is making a request which may be unreasonable. It is settled law that in a criminal trial the prosecution has to be absolutely fair and impartial. The main purposes of a criminal trial is not to get some one convicted. The object is to discover the truth and punish the accused if found guilty. The documents which he himself cannot procure for the purposes of putting his defence have to be requisitioned by invoking Section 91 Cr.P.C., if the Court is satisfied that those are necessary or desirable for the purpose of trial. 21. The defence has to be built up from day one of the trial. The right to defend, which flows from the fundamental right to life and personal liberty enshrined in Article 21 of the Constitution of India, is not an illusionary right, but a substantive one. The tool given in the hands of the court to discover the truth of the controversy before it. The power under Section 91 Cr.P.C. to discover the truth and to do complete justice to the accused. Naturally, the discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OC, i.e. Prosecution witness PW- 18 Sujit Panigrahi attempted to favour MSL as a bidder and these facts in support of this are evident and demonstrable, but have been deliberately overlooked or concealed by the Prosecution and therefore, the petitioner has a right to an effective opportunity to establish this case with the aid of relevant documents such as the Call Detail Records of Mr. Jyoti Chhabra. At this stage, the Court is not concerned whether the averments made in the application under Section 91 Cr.P.C. may be gospel truth or not. If the documents are necessary in order to decide the real controversy, the same cannot be thrown particularly when the application is filed by the accused. 25. There is some force in the submission of the petitioner for some extent as it also appears from the pleadings that the Trial Court has taken an inconsistent view while passing the Impugned Order. In similar applications under Section 91 Cr.P.C. moved by Accused No. 3 for summoning Call Detail Records of PW-18 Sujit Panigrahi and PW-29 Vijay Kumar Gautam, the Trial Court by orders dated 16th April, 2013 and 9th July, 2013 summoned the records sought. However, the prayer of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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