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TMI Blog2021 (11) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... r.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 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), (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 crucial bearing on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain guidelines regarding inadequacies and deficiencies in criminal trial Vs. State of Andhra Pradesh & Ors. dated 20th 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unrelied 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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