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2023 SCC OnLine Del 4870

In the High Court of Delhi at New Delhi

(BEFORE DINESH KUMAR SHARMA, J.)

Dheeraj Wadhawan … Petitioner;

Versus
Central Bureau of Investigation … Respondent.
Crl.M.C. 5108/2023 and Crl. M.A. 19403/2023
Decided on July 26, 2023
Advocates who appeared in this case:
Mr. Vijay Aggarwal, Mr. Yugant Sharma, Mr. Hardik Sharma, Mr.
Shekhar Pathak, Mr. Mukul Malik, Mr. Aachit Jain, Mr. Ashish and Mr.
Pankush Goyal, Advocates
Mr. Anupam Sharrma, SPP-CBI with Mr. Prakarsh Airan, Ms. Harpreet
Kalsi, Mr. Abhishek Batra and Mr. Riputdaman Sharma, Advts.
The Judgment of the Court was delivered by
DINESH KUMAR SHARMA, J. (Oral):—
CRL.M.A. 19404/2023 (exemption)
1. Exemption is allowed subject to all just exceptions.
2. Application stands disposed of.
CRL.M.C. 5108/2023, CRL.M.A. 19403/2023
3. Present petition has been filed challenging the order dated
24.05.2023 whereby the learned Special Judge (P.C. Act), CBI-08,
Rouse Avenue Court, New Delhi has inter alia relying upon the case of
P. Ponnusamy v. State of Tamil Nadu, 2022 SCC OnLine SC 1543, held
that unrelied documents/statements cannot be supplied prior to the
framing of charge. Learned Special Judge also inter alia held that prayer
for providing copies of unrelied documents, statements and other
material is also misconceived at this stage because only the list will be
made available to the accused even as per directions given in In Re : To
issue Certain Guidelines Regarding Inadequacies and Deficiencies in
Criminal Trial v. State of Andhra Pradesh, Suo Moto Writ (Crl) No.
1/2017, and not the documents, material etc. It was further inter alia
held that the accused will have the liberty to apply afresh for supply of
list of unrelied documents, statements etc. once the charges are framed
and case is put at trial. Learned Special Judge also inter alia held that
after receipt of list of such unrelied material, the accused will have also
an option to move another application under Section 91 Cr. P.C. for
production of any particular document or material which is related to
his defence and needed for the purpose of cross examination of any
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prosecution witness.
4. The petitioner aggrieved of the order passed by the learned
Special Judge has invoked the jurisdiction of this court under Section
482 Cr. P.C. and filed the present petition seeking the following
prayers:
a. Set aside the impugned order dated 24.05.2023 passed by Sh.
Ashwani Kumar Sarpal, Ld. Special Judge, Rouse Avenue District
Court, Delhi in CC No. 61/2022 titled as “CBI v. Kapil Wadhawan”
whereby the Ld. Special Judge has rejected the application filed
by the petitioner under Section 207 Cr. P.C. seeking supply of all
the un-relied documents, which are in possession of the
prosecution in connection with the present matter and seeking
directions to the Respondent/C.B.I. to make disclosure to the
effect that all relied/un-relied documents collected by the
investigating officer and all relied/un relied statements recorded
under 161 Cr. P.C. Act by the investigating officer during the
investigation have been supplied to the accused persons.
AND/OR
b) Pass necessary order and directions thereby directing the
Prosecution/Respondent to supply to the Petitioner/Accused the
list of all un-relied upon documents along with all the
documents/statements not-relied upon by the CBI.
5. Mr. Vijay Aggarwal learned counsel for the petitioner has
vehemently argued that the learned Special Judge vide the impugned
order has fallen into a grave error while denying the unrelied
documents to the petitioner. Mr. Vijay Aggarwal learned counsel
submits that the judgment rendered in In Re-Suo Motu (supra) and P.
Ponnusamy v. State of Tamil Nadu (supra) are not contrary to each
other, but rather supplementing to each other. Learned counsel for the
petitioner has further submitted that in Siddharth Vashisht @ Manu
Sharma v. State of NCT of Delhi, (2010) 6 SCC 1, it was specifically
held that the rights under Sections 207/208 Cr. P.C. are much wider
in range and cannot have a restrictive meaning in view of
Section 173 Cr. P.C. Mr. Aggarwal submits that merely supplying of
list of unrelied documents will have no purpose if the documents are
not supplied to accused persons. Mr. Aggarwal has invited the attention
of this court in detail to the judgments rendered in In Re : Suo Motu
(supra), Siddharth Vashisht @ Manu Sharma (supra) and P. Ponnusamy
(supra). Learned counsel submits that the learned Special Judge has
misinterpreted the judgments, and the impugned order in fact is in the
teeth of not only the judgments passed by the Hon'ble Apex Court but
also in violation of the provisions of Cr. P.C. Learned counsel further
submits that this matter has come up before this court in various
petitions wherein the stay has been granted by this court.
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6. Learned counsel specifically submitted that the following cases are

pending before this court for adjudication on this point only wherein
this Court has even granted the stay. In R. P Goyal v. Enforcement
Directorate, W.P.(CRL) 96/2022 and Directorate of Enforcement v.
Rajesh Kumar Aggarwal, Crl. MC. 657/2022, this Court has granted
stay vide orders dated 10.02.2022 and 27.09.2022 respectively. Ld.
Counsel submits that the stay order has even been passed by this court
in Directorate of Enforcement v. Contisteel Ltd., Crl. MC 4499/2023,
vide order dated 06.07.2023.
7. Learned counsel has submitted that P. Ponnusamy (supra) is a
three-judge bench decision, and it cannot be read as to have overruled
the judgment delivered In Re-Suo Motu (supra). Learned counsel has
submitted that in Re-Suo Motu (supra) it was specifically held that the
unrelied documents would be supplied to the accused persons. Learned
counsel has also argued that in fact the observations made in Re-Suo
Motu (supra) is much wider in nature as compared to the directions in
P. Ponnusamy (supra). Mr. Aggarwal has submitted that the coordinate
bench of this court in many cases have repeatedly held that the
documents are to supplied to the accused for the purposes of fair trial.
Learned counsel has submitted that even the SLP filed in CBI v. INX
Media Pvt. Ltd., Crl MC 1338/2021, has been dismissed by the Hon'ble
Apex Court vide order dated 18.07.2023. Mr. Aggarwal therefore
submits that the notice may be issued, and CBI may be directed to file
the reply.
8. Mr. Anupam Sharma learned Special PP for CBI has submitted
that there is no need for issuing the notice at this stage as the point is
well settled. Mr. Anupam Sharma states that even in Re-Suo Motu
(supra) it was specifically laid down by the Hon'ble Apex Court that
only the list of unrelied documents is to be supplied to the accused
persons by the prosecution.
9. Mr. Sharma further submits that the same dictum was followed in
Manoj v. State of Madhya Pradesh, 2022 SCC OnLine SC 677. Mr.
Sharma submits that in P. Ponnusamy (supra), which is a judgment of
three judges bench, merely clarified the order in Re-Suo Motu (supra)
and specifically held that even the list of unrelied documents can be
supplied after the framing of the charge. Mr. Sharma submits that as
far as the directions given in INX Media Pvt. Ltd., (supra) the accused
persons have a right to inspect the Malkhana relating to unrelied
documents. Mr. Sharma submits that the present petition is thus liable
to be rejected out rightly.
10. In rebuttal, Mr. Aggarwal submits that as per the CBI manual
after filing of the charge sheet all the documents are required to be
submitted before the learned trial court and there is no question of
having any material in the Malkhana. Mr. Aggarwal has also invited the
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attention of this court to the orders passed by a Coordinate Bench of

this court in Shashi Bala v. State Govt of NCT of Delhi, (2016) 158 DRJ
342 and Arvind Kejriwal v. State NCT of Delhi, Crl. M.C. 1867/2020.
11. This court has come across this question in various petitions as
has rightly been highlighted by Mr. Aggarwal, learned counsel for the
petitioner. However, fortunately, today both the learned counsel for the
petitioner and learned Special PP for CBI have advanced extensive
arguments and therefore this court deems it proper to dispose of the
present petition in light of the judgments of the Hon'ble Supreme Court
in the cases of Re Suo Motu (supra), Siddharth Vashisht @ Manu
Sharma (supra), Manoj (supra) and P. Ponnusamy (supra). In this
regard it would be advantageous to refer to the observation made by
the Hon'ble Supreme Court.
12. In In Re : To Issue Certain Guidelines Regarding Inadequacies
and Deficiencies in Criminal Trials v. The State of Andhra Pradesh, Suo
Moto Writ (Crl) Nos. 1/2017, it was inter alia held 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. P.C., 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. 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. P.C. for their production
during the trial, in the interests of justice.”
13. In Re - Suo Motu (supra), the Model Draft Rules were also
framed. The relevant Model Draft Rule is as under:
“4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208
Cr. P.C.
i. Every accused shall be supplied with statements of
witnesses recorded under Section 161 and 164 Cr. P.C. and a
list of documents, material objects and exhibits seized during
investigation and relied upon by the Investigating Officer in
accordance with Section 207 and 208 Cr. P.C.
Explanation : The list of statements, documents, material
objects and exhibits shall specify statements, documents,
material objects and exhibits that are not relied upon by the
Investigating Officer.
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14. Proceeding further, in Manoj v. State of Madhya Pradesh (supra)

it was inter alia held as under:
“188. This view was endorsed in a recent three judge decision of
this court in Criminal trials guidelines regarding Inadequacies and
Deficiencies, in re v. State of Andhra Pradesh. This court has
highlighted the inadequacy mentioned above, which would impede a
fair trial, and inter alia, required the framing of rules by all states
and High Courts, in this regard, compelling disclosure of a list
containing mention of all materials seized and taken in, during
investigation-to the accused. The relevant draft guideline, approved
by this court, for adoption by all states is as follows:
“4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND
208 Cr. P.C.
Every Accused shall be supplied with statements of witness
recorded under Sections 161 and 164 Cr. P.C. and a list of
documents, material objects and exhibits seized during investigation
and relied upon by the Investigating Officer (I.O) in accordance with
Sections 207 and 208, Cr. P.C.
Explanation : The list of statements, documents, material objects
and exhibits shall specify statements, documents, material objects
and exhibits that are not relied upon by the Investigating Officer.
189. In view of the above discussion, this court holds that the
prosecution, in the interests of fairness, should as a matter of rule, in
all criminal trials, comply with the above rule, and furnish the list of
statements, documents, material objects and exhibits which are not
relied upon by the investigating officer. The presiding officers of
courts in criminal trials shall ensure compliance with such rules.”
15. Thereafter in P. Ponnusamy (supra), the Hon'ble Apex Court
inter alia held as under:
“17. As stated earlier, the requirement of disclosure elaborated on
in Manoj, not only was premised on the formulation of draft rules,
but normatively premised on the ratio of the three-judge bench
decision in Manu Sharma (supra). In these circumstances, the proper
and suitable interpretation of the disclosure requirement in Manoj
(supra) would be that:
(a) It applies at the trial stage, after the charges are framed.
(b) The court is required to give one opportunity of disclosure,
and the accused may choose to avail of the facility at that
stage.
(c) In case documents are sought, the trial court should exercise
its discretion, having regard to the rule of relevance in the
context of the accused's right of defence. If the document or
material is relevant and does not merely have remote bearing
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to the defence, its production may be directed. This

opportunity cannot be sought repeatedly - the trial court can
decline to issue orders, if it feels that the attempt is to delay.
(d) At the appellate stage, the rights of the accused are to be
worked out within the parameters of Section 391 CrPC.”
16. There cannot be any dispute as to the contentions raised by Mr.
Aggarwal, Learned counsel for the petitioner that the principles of
natural justice have to be adhered to strictly for the purposes of fair
trial to the accused. The provisions of the Cr. P.C. are also to be read in
consonance and in sync with the basic canons enshrined in the
Constitution of India which guarantees a right of fair trial to every
accused persons. The provisions as contained in Section 207 and 208
Cr. P.C. are also in line with such golden principles that to enable the
accused persons to face the trial the copies have to be supplied to the
accused persons.
17. Section 207 and 208 of Cr. P.C. read as under:
“207. Supply to the accused of copy of police report and other
documents.—In any case where the proceeding has been instituted
on a police report, the Magistrate shall without delay furnish to the
accused, free of cost, a copy of each of the following:—
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161
of all persons whom the prosecution proposes to examine as its
witnesses, excluding therefrom any part in regard to which a
request for such exclusion has been made by the police officer
under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under
section 164;
(v) any other document or relevant extract thereof forwarded to
the Magistrate with the police report under sub-section (5) of
section 173:
Provided that the Magistrate may, after perusing any such
part of a statement as is referred to in clause (iii) and
considering the reasons given by the police officer for the
request, direct that a copy of that part of the statement or of
such portion thereof as the Magistrate thinks proper, shall be
furnished to the accused:
Provided further that if the Magistrate is satisfied that any
document referred to in clause (v) is voluminous, he shall,
instead of furnishing the accused with a copy thereof, direct
that he will only be allowed to inspect it either personally or
through pleader in Court.”
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“208. Supply of copies of statements and documents to

accused in other cases triable by Court of Session.—Where, in a
case instituted otherwise than on a police report, it appears to
the Magistrate issuing process under section 204 that the
offence is triable exclusively by the Court of Session, the
Magistrate shall without delay furnish to the accused, free of
cost, a copy of each of the following:—
(i) the statements recorded under section 200 or section 202,
of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under
section 161 or section 164;
(iii) any documents produced before the Magistrate on which
the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such
document is voluminous, he shall, instead of furnishing the
accused with a copy thereof, direct that he will only be allowed
to inspect it either personally or through pleader in Court.”
18. Before proceeding further, it is also necessary to refer to Section
173(5) of Cr. P.C., which reads as under:
“173. Report of police officer on completion of investigation -
(5) When such report is in respect of a case to which section
170 applies, the police officer shall forward to the Magistrate
along with the report—
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to
the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons
whom the prosecution proposes to examine as its witnesses.”
19. There also cannot be any dispute to the submissions of the
Learned counsel for the petitioner that Section 207 and 208 CrPC is
wider in amplitude than Section 173(5) Cr. P.C. as has been stated by
the Hon'ble Apex Court also in Siddharth Vashisht @ Manu Sharma
(supra), wherein it was inter alia held as under:
“219. The role and obligation of the Prosecutor particularly in
relation to disclosure cannot be equated under our law to that
prevalent under the English system as aforereferred to. But at the
same time, the demand for a fair trial cannot be ignored. It may be
of different consequences where a document which has been
obtained suspiciously, fraudulently or by causing undue advantage
to the accused during investigation such document could be denied
in the discretion of the Prosecutor to the accused whether the
prosecution relies or not upon such documents, however in other
cases the obligation to disclose would be more certain. As already
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noticed the provisions of Section 207 have a material bearing on this

subject and make an interesting reading. This provision not only
require or mandate that the court without delay and free of cost
should furnish to the accused copies of the police report, first
information report, statements, confessional statements of the
persons recorded under Section 161 whom the prosecution wishes to
examine as witnesses, of course, excluding any part of a statement
or document as contemplated under Section 173(6) of the Code, any
other document or relevant extract thereof which has been
submitted to the Magistrate by the police under sub-section (5) of
Section 173. In contradistinction to the provisions of Section 173,
where the legislature has used the expression “documents on which
the prosecution relies” are not used under Section 207 of the Code.
Therefore, the provisions of Section 207 of the Code will have to be
given liberal and relevant meaning so as to achieve its object. Not
only this, the documents submitted to the Magistrate along with the
report under Section 173(5) would deem to include the documents
which have to be sent to the Magistrate during the course of
investigation as per the requirement of Section 170(2) of the Code.
20. It is pertinent to mention here that in Re - Suo Motu (supra)
[three judge bench], Manoj (supra) [three judge bench] and P.
Ponnusamy (supra) [three judge bench] are later in time to Siddharth
Vashisht @ Manu Sharma's case [two judge bench]. These are the
broad principles but while deciding a particular question of law, the
court has to take into account the relevant provisions of law and the
judicial dictums. It is also relevant to mention here that it has
repeatedly been held that at the stage of charge, the court is only
required to look into the material placed by the prosecution. At the
stage of charge, the court cannot look into the documents being placed
by the defence. This position has been crystallized in a three judges
bench decision in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC
568, wherein the Hon'ble Apex Court while overruling the division
bench decision rendered in Satish Mehra v. Delhi Admn, (1996) 9 SCC
766, has inter alia held as under:
“23. As a result of the aforesaid discussion, in our view, clearly
the law is that at the time of framing charge or taking cognizance
the accused has no right to produce any material. Satish Mehra case
[(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] holding that the trial
court has powers to consider even materials which the accused may
produce at the stage of Section 227 of the Code has not been
correctly decided.
XXX
25. Any document or other thing envisaged under the aforesaid
provision can be ordered to be produced on finding that the same is
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“necessary or desirable for the purpose of investigation, inquiry, trial

or other proceedings under the Code”. The first and foremost
requirement of the section is about the document being necessary or
desirable. The necessity or desirability would have to be seen with
reference to the stage when a prayer is made for the production. If
any document is necessary or desirable for the defence of the
accused, the question of invoking Section 91 at the initial stage of
framing of a charge would not arise since defence of the accused is
not relevant at that stage. When the section refers to investigation,
inquiry, trial or other proceedings, it is to be borne in mind that
under the section a police officer may move the court for summoning
and production of a document as may be necessary at any of the
stages mentioned in the section. Insofar as the accused is
concerned, his entitlement to seek order under Section 91 would
ordinarily not come till the stage of defence. When the section talks
of the document being necessary and desirable, it is implicit that
necessity and desirability is to be examined considering the stage
when such a prayer for summoning and production is made and the
party who makes it, whether police or accused. If under Section 227,
what is necessary and relevant is only the record produced in terms
of Section 173 of the Code, the accused cannot at that stage invoke
Section 91 to seek production of any document to show his
innocence. Under Section 91 summons for production of document
can be issued by court and under a written order an officer in charge
of a police station can also direct production thereof. Section 91 does
not confer any right on the accused to produce document in his
possession to prove his defence. Section 91 presupposes that when
the document is not produced process may be initiated to compel
production thereof.
XXX
27. Insofar as Section 91 is concerned, it was rightly held that the
width of the powers of that section was unlimited but there were
inbuilt, inherent limitations as to the stage or point of time of its
exercise, commensurate with the nature of proceedings as also the
compulsions of necessity and desirability, to fulfil the task or achieve
the object. Before the trial court the stage was to find out whether
there was sufficient ground for proceeding to the next stage against
the accused. The application filed by the accused under Section 91 of
the Code for summoning and production of document was dismissed
and order was upheld by the High Court and this Court. But
observations were made in para 6 to the effect that if the accused
could produce any reliable material even at that stage which might
totally affect even the very sustainability of the case, a refusal to
look into the material so produced may result in injustice, apart from
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averting an exercise in futility at the expense of valuable

judicial/public time, these observations are clearly obiter dicta and in
any case of no consequence in view of conclusion reached by us
hereinbefore. Further, the observations cannot be understood to
mean that the accused has a right to produce any document at the
stage of framing of charge having regard to the clear mandate of
Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in
Chapter 19.
28. We are of the view that jurisdiction under Section 91 of the
Code when invoked by the accused, the necessity and desirability
would have to be seen by the court in the context of the purpose —
investigation, inquiry, trial or other proceedings under the Code. It
would also have to be borne in mind that law does not permit a
roving or fishing inquiry.”
21. However, in case of any documents which makes the story of the
prosecution preposterous, the court will also have a right to deal with
the same in accordance with the law as has been laid down in Nitya
Dharmananda @ K. Lenin v. Sri Gopal Sheelum Reddy, (2018) 2 SCC
93 : AIR 2017 SC 5846. In Nitya Dharmananda (supra) after
discussing. Debendra Nath Padhi (supra) and Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92, it was inter alia held as under:
8. Thus, it is clear that while ordinarily the Court has to proceed
on the basis of material produced with the charge-sheet for dealing
with the issue of charge but if the court is satisfied that there is
material of sterling quality which has been withheld by the
investigator/prosecutor, the court is not debarred from summoning
or relying upon the same even if such document is not a part of the
charge-sheet. It does not mean that the defence has a right to
invoke Section 91 CrPC dehors the satisfaction of the court, at the
stage of charge.
22. It is also relevant to mention that as per Articles 141 and 142 of
the Constitution of India, all the courts are strictly bound to adhere to
the dictum of the Hon'ble Apex Court. Para 11 in Re : Suo Motu which
has been read and relied by both the learned counsels, if read
holistically with an objective mind, makes it clear that the Apex court
expressed the opinion that while furnishing the list of statements,
documents and material objects under Sections 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 on) should be
furnished to the accused. The apex court also inter alia observed that
this is necessary 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,
the accused may seek appropriate remedies under the Cr. P.C. for their
production during the trial in the interest of justice. This direction has
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to be read along with the Draft Criminal Rules on Practice, 2021, which
forms part of this judgment. A perusal of the draft rules states that
every accused shall be supplied with statements of witnesses recorded
under Section 161 and 164 Cr. P.C. and a list of documents, material
objects and exhibits seized during investigation and relied upon by the
Investigating Officer in accordance with Section 207 and 208 Cr. P.C.
Thus, at the stage of Section 207 and 208 Cr. P.C. as per the draft
rules, the accused is only to be supplied with the relied upon
documents. However, the explanation appended to it states that list of
statements, documents, material objects and exhibits shall specify
statements, documents, material objects and exhibits that are not
relied upon by the Investigating Officer.
23. Thus, a conjoint reading of the both makes it clear that in
respect of the unrelied documents only the list of statements,
documents, material objects and exhibits are to be supplied, however
such documents, material objects and exhibits should specify
documents, material objects and exhibits. Thus, the contention of the
learned counsel for the petitioner that the reading of this provides that
along with the list of documents, the documents also have to be
supplied, cannot be accepted.
24. Now the question remains that at what stage such list of
unrelied documents have to be supplied. For this, it is imperative to
advert to the case of P. Ponnusamy (supra), wherein in para 17 it was
inter alia held that the disclosure requirement would indicate that it
applies at the trial stage, i.e. after the charges are framed. Learned
Special PP for CBI wants this court to read the judgment of P.
Ponnusamy (supra) in a manner that even the list of documents is to
be supplied only at the trial stage after the charges are framed.
However, this court finds it difficult to agree with the Learned Special
PP for CBI on this point. In view of the specific finding given in Re :
Suo Motu case, the list of other materials (such as statements, or
objects/documents seized, but not relied on) has to be furnished to the
accused at the stage of Section 207/208 Cr. P.C.
25. Thus, the discussion made above to the mind of this court
makes the following positions clear:
a. That at the stage of Section 207 & 208 Cr. P.C., the list of other
material (such as statements, or objects/documents seized, but
not relied on) should be furnished to the accused.
b. The accused has a liberty to call for such unrelied documents at
the stage of trial in accordance with the relevant provisions of Cr.
P.C. i.e. Section 91 Cr. P.C.
26. Learned Special PP for CBI has submitted that in fact in the
present case, the petitioner had not asked for the list of unrelied
documents before the learned trial court and therefore the proper
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course would be to direct the petitioner to move an appropriate

application before the learned trial court for supply of list of unrelied
documents. However, I consider that this would amount to simply delay
the proceedings. Thus, this court deems it appropriate to dispose of the
present petition with a direction that the list of other material (such as
statements, or objects/documents seized, but not relied on) should be
furnished to the accused before the framing of charge and the
documents may be furnished to the accused after the framing of the
charge in accordance with law, which are not relied upon by the
prosecution in accordance with the judgments delivered in Re : Suo
Motu (supra) and P. Ponnusamy (supra).
27. Mr. Aggarwal submits that inspection of unrelied documents can
be allowed in view of the judgment in INX Media Pvt. Ltd. (supra).
28. In INX Media Pvt. Ltd., Crl.M.C.1338/2021, a coordinate bench of
this Court has inter alia held as under:
“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. ……. As noted above, the learned
Trial Court directed the CBI to supply copies of all the pages/part
thereof, or the entire document to the accused persons in relation to
documents only a few pages or part of document were being relied
by the CBI. In relation to the documents which have not been filed in
the Court, the learned Trial Court did not direct the CBI to produce
the said documents in Court and held that the ends of justice would
be met if the accused persons are permitted to inspect the said
documents lying in the Malkhana of CBI and to find out if any such
document is relevant or vital for their defence or is of sterling quality
to demolish the very case of prosecution and after making inspection
learned counsel representing these accused shall let the Court know
the details of these documents so that copies thereof can be
supplied to them.
17. By the impugned order, the learned trial Court has already
clarified that the permission to conduct inspection being granted by
the Court was not in respect of those documents in relation to which
the investigation by the CBI was still pending…….
18. In the decision reported as (2012) 9 SCC 771 V.K. Sasikala v.
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
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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 right of the accused to carry out
inspection as per the procedure laid down in the Manual of the CBI.”
29. Therefore, in view of the judgment in INX Media Pvt. Ltd. (supra)
passed by this court in Crl.M.C.1338/2021 dated 10.11.2021, the
inspection be allowed in accordance with clause 12.32 of the CBI
(Crime) Manual, 2020. It is pertinent to mention that Special Leave to
Appeal (Crl.) No. 1274/2022 filed against the judgment passed by this
court has already been dismissed. However, right to inspection shall not
be in respect of the documents in relation to which the investigation by
CBI is still pending.
30. Accordingly, the present petition along with pending application
stands disposed of.
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