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TMI Blog2014 (12) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... icer 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 threa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... Act), CBI-02. In the said application, the petitioner had mentioned that during the course of investigation, CBI had recorded statements of nine witnesses named from (a) to (i) in para 3 of the application and also of the Directors of five companies mentioned from (a) to (e) in para 4 of the said application which had not been supplied to the petitioner nor have been placed on record and the same were necessary and desirable for reaching at a just decision. The petitioner had also asked for some documents which are mentioned in the said application. Vide impugned order dated 01.11.2013, learned trial court dismissed the application regarding witnesses (c), (d) & (g) in para 3 and witnesses (a) to (e) in para 4 of the application filed by the petitioner. 4. Feeling aggrieved by the said order the petitioner has filed the present petition. 5. Learned senior counsel for the petitioner contended that the respondent CBI has concealed the relevant material from the trial court as it has relied upon specific statements of witnesses despite the fact that such statements have been recorded on more than one occasion. He pointed out that during investigation the prosecuting agency had reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the statements of Nikhil Nanda, Deepak Chawla, Ajay Kumar Gupta, Ravinder Aggarwal, Amit Saxena and Pradeep Sahni recorded by the investigating officer under Section 161 Cr.P.C. have already been supplied to the petitioner. However, the statements of Rajpal Malik, Chhabi Lal and Vinit Khetan were not supplied as they have not been relied upon as witnesses in the charge-sheet. Similarly, the 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. were examined by CBI but their statements were not relied upon in the charge-sheet. 10. Learned Special PP also pointed out that vide order dated 03.06.2013, trial court directed to supply the documents relied upon and filed along with the charge-sheet and not the ones upon which CBI has not relied. 11. I have bestowed my anxious thought to the submissions made by learned counsel for the petitioner and learned Special PP for CBI and have also perused the material on record. 12. Before adverting to the facts of the present case, it is necessary to consider the relevant provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) Statements recorded under sub-section (3) of Section 161Cr.P.C. of all the 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 of Cr.P.C.; (iv) The confessions and statements, if any, recorded under Section 161 of Cr.P.C.; and (v) Any other document or relevant extract thereof forwarded to the Magistrate with police report under sub-section (5) of Section 173 of Cr.P.C. 14. 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. 15. A conjoint reading of section 173(5), 173(6) and first proviso attached to Section 207 of Cr.P.C. leaves no scope of doubt that it is the bounden duty of the police officer to forward to the Magistrate all the statements mentioned in sub-section (5)(b) of Section 173 of Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under Section 207 of Cr.P.C. b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to be of serious nature than prejudice would definitely be said to have been caused to the accused as in such an eventuality, the accused would be denied proper opportunity of discrediting those witnesses by bringing on record the contradictions which exists between their evidence in the Court and their earlier statements recorded by the police. 18. Now adverting to the facts of the present case, a perusal of charge-sheet filed before the Court below, would reveal that no specific request has been made by the police officer forwarding the charge-sheet, to the Magistrate for withholding any statement under Section 161(3) of Cr.P.C. or any particular document or portion thereof from the petitioner what to say of citing reasons thereof in this backdrop. The opposition made by respondent/ CBI to the request of petitioner for supplying the requisite statements under Section 161(3) of Cr.P.C. of prosecution witnesses namely Rajpal Malik, Chhabi Lal and Vinit Khetan 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., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld mean that the prosecution would be bound to supply all the statements even if recorded more than once of such witnesses as contemplated under Section 161(3) of the Code whether recorded in a police diary or otherwise and thereby a very valuable right has been conferred upon an accused person and the same cannot be denied to him and was wrongly denied to him by the prosecution as also by the learned committing magistrate by rejecting the prayer of the accused-petitioner in that behalf by wrongly placing emphasis on the "statements" sought to be relied upon by the prosecution in a contra-distinction to the "witnesses" making them. The provision of Sub-section (3) of Section 161 of the Code was introduced only to put a halt to the curious and rather perverted ingenuity of the police officers in following the practice of incorporating oral statements made to them by the witness in the case diaries under Section 172 of the Code in the belief that by doing so those statements could be kept back from the knowledge of the accused but that practice was not abolished by the law and is maintaining its continuance to subserve the surreptitious mischief of an Investigating Officer. These in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined under Section 172, Criminal Procedure Code." 21. In 'Shakuntala vs. State of Delhi', ILR (2007) I Delhi 1005, this Court held as under: - "4. It is settled law that fair and just investigation is a hallmark of any investigation. It is not the duty of the Investigating Officer to strengthen the case of prosecution by withholding the evidence collected by him. If an Investigating Officer withholds the evidence collected by him, the accused has a right to rely upon that evidence and tell the Court to take that evidence into account while framing the charges. The Court while framing charges may not take into account the defence of the accused or the documents in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the Court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. If it is brought to the notice of the Court by the accused that some of the evidence or documents have been withheld by the Investigating Officer or the prosecution deliberately, so that truth does not come out before the Court, the Court, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents forwarded to a court by the police along with the charge sheet or sent to it earlier during the course of investigation on the one hand and the statements of prospective witnesses recorded by the police during investigation under Section 161 Cr.P.C., copies of which are also forwarded to the Court along with the charge sheet, on the other. This is plain from the language of Section 173(5)(a) when compared with that of Section 173(5)(b) read with Section 173(6) and the first and second provisos to Section 207(v) Cr.P.C. For instance, the reference in Section 173(6) to 'any such statement' is to the statement of witnesses referred to in Section 173(5)(b), Cr.P.C. i.e. statements recorded of prospective witnesses under Section 161 Cr.P.C. In relation to these statements the police office has a discretion under Section 173(6) Cr.P.C. to withhold a part thereof if he forms an opinion that it is inexpedient in public interest to do so and inform the Magistrate accordingly. Further, the first proviso to Section 207(v) gives a discretion to the Magistrate to provide to the accused even those statements which 'the Magistrate thinks appropriate' shall be furnished. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other than those already sent to the Magistrate during investigation in terms of Section 170 (2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine, as witnesses shall also be sent to the Magistrate. Some element of discretion is vested with the police officer under Section 173 (6) where he is of the opinion that any such statement is not relevant to the subject matter of the proceedings or its disclosure to accused is not essential in the interest of justice and is expedient in the public interest he shall indicate that part of the statement refusing a Magistrate that part from the copies to be granted to the accused and stating his reason for making such a request. Sub-Section 7 of the same Section is indicative of another discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents refer to Sub-section 5 of the Section. xxxx xxxx xxxx 216. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all documents or relevant extracts and the statement recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the police report, first information report, statement, confessional statement 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 161. 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. xxxx xxxx xxxx 221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bonafidely and has bearing on the case of the prosecution and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 28. In view of the dictum in the aforementioned judgments, 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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