2014 (12) TMI 1405 - HC - Indian Laws

Criminal conspiracy - manipulation of the appraisal report of income tax investigation to show undue favour to the accused No.2 - demand and accepting huge amount of illegal gratification - HELD THAT - On perusal of Section 173 of Cr.P.C. it is manifestly clear that after completion of investigation the investigating officer shall make a detailed report and the concerned Officer In-Charge of the police station shall forward this report to the Magistrate having jurisdiction to take cognizance. Thereafter the Magistrate would consider the charge-sheet and the accompanying documents as well as the statements of the witnesses and would decide whether to take cognizance of the offence or not - A bare reading of provisions contained in Section 207 of Cr.P.C. shows that it is the obligation of the Magistrate to see that all the documents which are necessary for the accused for proper conduct of his defence are furnished to him well before the trial. It is only when specific request has been made by a police officer in his forwarding memorandum of the charge-sheet while being forwarded to the Magistrate stating that any particular statement recorded under Section 161(3) of Cr.P.C. or any document or any part thereof should not be supplied to the accused that the Magistrate shall on the basis of the discretion conferred upon him by virtue of first proviso attached to Section 207 of Cr.P.C. after considering the reasons given by the police officer making such request would either issue directions for furnishing copy of that part of statement or would issue directions for furnishing any relevant portion of that statement thereof to the accused or otherwise - in case where no such specific request has been made by a police officer while forwarding the charge- sheet to the Magistrate then the copies of all the statements recorded under Section 161(3) of Cr.P.C. documents or relevant extract thereof etc. as provided in clause (i) to (v) of Section 207 of Cr.P.C are required be provided to the accused. It is settled rule of law that impartial and fair opportunity in a trial are Constitutional as well as human right. It is an undeniable duty of the Court to ensure that nothing causes a threat to such a right. It is the right of an accused to adduce evidence in order to raise defence failing which it may tantamount to jeopardizing the right to fair trial. Justice can only be ensured if the rules of procedure that have been designed are diligently adhered to. No court shall allow breach of these principles. Furthermore incompletely adduced evidence would lead to incomplete defence which may result in incorrect or incomplete answers consequently strengthening the prosecution case against the accused. In case the prosecution is permitted to withhold what might be vital evidence for an accused to establish his case the unscrupulous investigating agency would be with utmost ease able to keep the court in the dark. Since the charges framed by CBI are of criminal nature the petitioner under such circumstances has the full right to lay down his defences for the purposes of which all necessary disclosures have to be duly made in accordance with the procedures laid down under Cr.P.C. Accused can ask for the documents that withhold his defence and would be prevented from properly defending himself until all the evidence collected during the course of investigation is given to the accused. Defence has to be build up from day one and not on ad-hoc basis denying the same would seriously prejudice the rights of the accused as enshrined in the Constitution of India. This Court is of the opinion that petitioner cannot be denied an access to the documents in respect of which prayers have been made in the petition merely because CBI does not consider it relevant. If there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of the prosecution and the investigating officer ignores these documents and forward only those documents which favour the prosecution in such a scenario it would be the duty of investigating officer to make such documents available to the accused. The respondent is directed to supply copy of statements under Section 161(3) of Cr.P.C. of prosecution witnesses namely Rajpal Malik Chhabi Lal and Vinit Khetan Nikhil Nanda Deepak Chawla Ajay Kumar Gupta Ravinder Aggarwal Amit Saxena and Pradeep Sahni as well as Directors of M/s. Blueview Commodities Pvt. Ltd. M/s. Kush Hotels and Resorts Pvt. Ltd. M/s. Longview Infrastructure Pvt. Ltd. M/s. Brijdham Properties States Pvt. Ltd. and M/s. Tolly Commercial Pvt. Ltd. as also the copies of the documents i.e. (i) Copy of the alleged Appraisal Report of Shri Suresh Nanda Group of Cases; (ii) Copy of the missing pages of the CDRs forming a part of D17 and listed in Annexure A herein; (iii) Copy of the complete and correct transcription of the alleged telephone calls and conversations as alleged by the CBI (iv) Copy of the complete and unedited video footage as seized by the CBI as per Seizure Memo dated 14.03.2008 (marked as D19) to the petitioner to establish his defence. Petition allowed.

Summary

Issues Involved:
1. Legality of the trial court's order dated 01.11.2013 regarding the supply of documents and witness statements.
2. Petitioner's right to access all statements and documents collected during the investigation.
3. Interpretation and application of Sections 173 and 207 of the Code of Criminal Procedure (Cr.P.C.).

Detailed Analysis:

1. Legality of the Trial Court's Order:
The petitioner challenged the order dated 01.11.2013 by the Special Judge (PC Act), CBI-02, Patiala House Courts, New Delhi, which partly allowed the petitioner's application under Section 207 Cr.P.C. The order directed that only certain documents and witness statements be provided to the petitioner while denying others. The trial court's decision to review its previous order dated 03.06.2013, which directed the CBI to supply all documents seized during the investigation, was deemed impermissible in law.

2. Petitioner's Right to Access All Statements and Documents:
The petitioner argued that the CBI had concealed relevant material by not providing complete statements of witnesses recorded multiple times and certain documents seized during the investigation. The petitioner cited judgments, including 'S.J. Chowdhary vs. The State' and 'Dharambir vs. Central Bureau of Investigation,' to assert that the CBI is obligated to supply all witness statements recorded during the investigation unless explicitly exempted by the Magistrate under Section 173(6) Cr.P.C.

3. Interpretation and Application of Sections 173 and 207 Cr.P.C.:
The court examined Sections 173 and 207 of Cr.P.C., emphasizing that after completing the investigation, the investigating officer must forward a detailed report to the Magistrate, who then decides whether to take cognizance of the offense. Section 207 mandates that the Magistrate furnish the accused with copies of the police report, FIR, statements recorded under Section 161(3) Cr.P.C., confessions, and any other documents forwarded with the police report. The court highlighted that the Magistrate must ensure all necessary documents are provided to the accused for a fair trial.

The court noted that the prosecution cannot withhold statements or documents that might be vital for the accused's defense. The court emphasized the importance of fair and just investigation and the accused's right to access all evidence collected during the investigation. The court ruled that the petitioner's request for additional documents and witness statements was justified and directed the CBI to supply the requested materials.

Conclusion:
The court allowed the petition, directing the CBI to provide the petitioner with the statements of specific witnesses and documents necessary for the petitioner's defense. The court underscored the principle that an accused must have access to all evidence to ensure a fair trial and effective defense. The petition was disposed of, and the related application was dismissed as infructuous.