TMI Blog2021 (11) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... ects 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. 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 VISHAKA ORS. VERSUS STATE OF RAJASTHAN ORS. [ 1997 (8) TMI 456 - SUPREME COURT] 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. 1338/2021 And CRL.M.A. 7654/2021 (stay) - - - Dated:- 10-11-2021 - HON'BLE MS. JUSTICE MUKTA GUPTA Petitioner: Mr. Anupam S Sharma, SPP for CBI with Ms. Sudha Rani Ralangi, Director of Prosecution-CBI, Mr. Prakarsh Airan and Ms. Harpreet Kalsi, Advs. Respondents: Mr. Shailesh Poria, Adv., Mr. Sidharth Luthra, Sr. Adv. with Mr. Akshat Gupta, Mr. Pankaj Singhal and Ms. Shubhangi Jain, Advs., Mr. Pramod Kumar Dubey, Sr. Adv. with Mr. Nitin Saluja, Mr. Vikalp Sharma and Mr. Akshat Sharma, Advs., Mr. Vikas Pathak, Adv., Mr. Kumar Vaibhaw, Mr. Himanshu Gupta, Mr. Mohd. Ashaad, Advs., Mr. Aditya Wadhwa, Mr. Sougat Mishra and Mr. Ayush Shrivastava, Advs., Mr. Sidharth Aggarwal, Sr. Adv. with Mr. Varaz Maqbool, Mr. Abhinav Sekhri, Mr. Chandan Kumar and Mr. Chaitanya Sundariyal, Advs., Mr. Vikas Arora and Ms. Radhika Arora, Advs., Mr. Sandeep Kapur, Mr. Mridul Yadav, Mr. Aashneet Singh Anand, Advs., 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. ORDER 1. By this petition, the CBI challenges the impugned order dated 5th March, 2021 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 criminal trial Vs. State of Andhra Pradesh Ors. dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 quality can also be looked into by the Court at the time of framing of charge and the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 ..... 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