It is a cardinal principle of criminal jurisprudence that the accused is to be supplied with all documents that the prosecution seeks to rely upon, before the commencement of the trial. There cannot be piecemeal disclosure of material on which the prosecution seeks to base its case. The requirement to disclose the entire incriminating material prior to framing of charge stems from the right of the accused of fair opportunity to meet the case of the prosecution and to effectively put forth the defence. {Para 39}
40. To elaborate, such requirement is imperative to afford a meaningful opportunity to the accused to defend at the following stages - firstly, prior to commencement of trial to enable the accused to contest the framing of charge and seek discharge. Secondly, in case the accused fails to seek discharge, he should have fair opportunity to cross-examine prosecution witnesses and put his defence to them. Thirdly, to enter on his defence and adduce any evidence in support thereof.
41. Thus, requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 4107/2023 & CRL.M.A. 5116/2024
CENTRAL BUREAU OF INVESTIGTATION Vs R. VASUDEVAN & ORS.
CORAM: HON'BLE MR. JUSTICE VIKAS MAHAJAN
Dated: 22.05.2024.
1. The present petition has been filed seeking following relief:-
“(i) Set aside the impugned order dated 13.05.2022 to the
extent of dismissal of application for placing on record
Hard Disks containing video footage dated 23.11.2009 of
Hotel Sheraton as additional documents;
(ii) Direct the Ld. Special Judge to take on record Hard
Disks containing video footage dated 23.11.2009 of Hotel
Sheraton as additional documents.”
2. The petitioner/CBI had filed an application under Section 91 CrPC
seeking to place on record hard disks (hereinafter also referred to as
‘HDDs’) containing video footage dated 23.11.2009 of Hotel Sheraton as
additional documents.
3. In the application it is alleged that the relevant extracts from the said
HDDs containing video footage were filed in the form of CD and also
supplied to the accused persons, but the High Court while discharging
accused no.3 and accused no.5 vide order dated 20.11.2014 passed in
Crl.M.C. 2455/2012 & CRL.REV.P.385/2012 had observed that “audio and
video CDs in question are clearly inadmissible in evidence for want of
required certificate in terms of Section 65B of the Evidence Act.” Therefore,
it became imperative for the just decision of the case to place on record
HDDs containing video footage, the same being primary evidence, to prove
the allegations levelled in the chargesheet against the accused persons.
4. The learned Special Judge vide impugned order dated 13.05.2022
dismissed the aforesaid application filed by the petitioner/CBI, inter alia,
observing as under:
(i) The record shows that it is the case of the CBI that hard disks
are not relied upon documents and this fact was also admitted
by the CBI in response to the query raised by the High Court in
Crl. M.C. 2455/2012.
(ii) Once it is an admitted case of the CBI that hard disks would not
be relied upon in the trial then it is estopped from raising the
same issue. The CBI has moved an application only after the
High Court has held that audio and video CDs are inadmissible
in evidence, only to fill up the lacunae and that too after a
considerable period of time of more than five years when 26
witnesses have already been examined before the court.
(iii) Admittedly, the CBI has challenged the judgment of the High
Court dated 20.11.2014 passed in Crl.M.C.2455/2012 before
the Hon’ble Supreme Court of India by filing a SLP (Crl.)
No.3713-3716/2015, which is stated to be pending before the
Hon’ble Supreme Court of India and a perusal of the SLP
shows that CBI has also taken the issue of hard disks (HDDs)
as a ground of challenge before the Hon’ble Supreme Court of
India, therefore, the application would not be maintainable on
account of pendency of the said matter before the Hon’ble
Supreme Court of India.
5. Mr. Atul Guleria, SPP for the petitioner/CBI submits that at the stage
when statement was made by the petitioner/CBI that hard disks would not be
relied upon, the CDs on which the extracts from the hard disks had been
recorded had not been declared inadmissible for want of certificate under
Section 65B of the Indian Evidence Act.
6. He submits that production of hard disks is necessary or desirable for
the purpose of trial as the CCTV footage which corroborate the meeting
between the accused persons is a foundational piece of evidence to establish
the charge of conspiracy and corruption. He places reliance on the decision
of the Hon’ble Supreme Court in V. K. Sasikala vs. State: (2012) 9 SCC
771, to contend that Section 91 empowers the court to issue summons for
production of any document or other thing which the court considers
necessary or desirable for the purposes of any investigation, inquiry, trial or
another proceeding under the provisions of the Code.
7. He submits that even otherwise this Court can allow placing on record
additional evidence in the form of hard disks for the just decision of the case
under Section 311 CrPC. He further contends that though under Section 311
CrPC, lacuna cannot be allowed to be filled in the prosecution case but
lacuna in the prosecution is not to be equated with the fallout of an oversight
committed by a Public Prosecutor during trial, either in producing relevant
materials or in eliciting relevant answers from the witnesses.
8. Placing reliance on the decision of the Supreme Court in Zahira
Habibulla H. Sheikh and Ors. vs. State of Gujarat & Ors.: (2004) 4 SCC
158, learned counsel contends that Section 311 CrPC and Section 165 of the
Evidence Act confer vast and wide powers on Presiding Officers of the
Court to elicit all necessary materials by playing an active role in the
evidence collecting process. The court cannot afford to be wishfully or
pretend to be blissfully ignorant or oblivious to serious pitfalls or dereliction
of duty on the part of the prosecuting agency. The relevant part of the said
decision on which emphasis was laid reads thus:
“43. The courts have to take a participatory role in a trial.
They are not expected to be tape recorders to record whatever
is being stated by the witnesses. Section 311 of the Code and
Section 165 of the Evidence Act confer vast and wide powers
on presiding officers of court to elicit all necessary materials
by playing an active role in the evidence-collecting process.
They have to monitor the proceedings in aid of justice in a
manner that something, which is not relevant, is not
unnecessarily brought into record. Even if the prosecutor is
remiss in some ways, it can control the proceedings effectively
so that the ultimate objective i.e. truth is arrived at. This
becomes more necessary where the court has reasons to
believe that the prosecuting agency or the prosecutor is not
acting in the requisite manner. The court cannot afford to be
wishfully or pretend to be blissfully ignorant or oblivious to
such serious pitfalls or dereliction of duty on the part of the
prosecuting agency. The prosecutor who does not act fairly
and acts more like a counsel for the defence is a liability to
the fair judicial system, and courts could not also play into
the hands of such prosecuting agency showing indifference
or adopting an attitude of total aloofness.”
(emphasis supplied)
9. Mr. Guleria submits that the application under Section 91 CrPC was
filed by the petitioner / CBI on 13.03.2020 i.e. when the prosecution
evidence was going on, but the learned Trial Court took more than two years
to decide the application and subsequent thereto the present petition is
pending before this Court since last one year approximately. According to
Mr. Guleria, the right of the petitioner stood crystalized on 13.03.2020,
therefore, the question of delay in filing the application does not arise.
10. He submits that no outer limit for concluding a criminal trial could be
set, especially in criminal cases relating to corruption in public offices. To
make good his contention, reliance was placed by him on the decision of the
Hon’ble Supreme Court in P. Ramachandra Rao v. State of Karnataka
(2002) 4 SCC 578.
11. Additionally, he submits that ultimate objective of a criminal trial is to
unearth complete truth before reaching a lawful conclusion so that ends of
justice are subserved. He submits that in cases relating to high level
corruption in public offices, it is the bounden duty of the Trial Court to not
stifle a legitimate prosecution in a nonchalant manner. In support of his
submission, reliance has been placed on the decision of the Hon’ble
Supreme Court in V. K. Sasikala (supra), Zahira Habibulla H. Sheikh
(supra) and Mohanlal Shamji Soni vs. Union of India & Anr.: 1991 Supp.
(1) SCC 271. He submits that the learned Trial Court has erred in law in
failing to perform its bounden duty to ensure that best evidence should come
on record.
12. It is further contended by Mr Guleria that while rejecting the
application of the petitioner under Section 91 CrPC seeking permission to
place on record original video footage, the learned Trial Court has placed
reliance on the judgment dated 20.11.2014 passed in Crl.M.C.2455/2012,
whereby the video CDs were held to be inadmissible and also on the fact
that the SLP preferred against the said order is still pending. He submits that
the learned Trial Court failed to consider that findings given in order dated
20.11.2014 are relating to CDs and the question of admissibility of the CDs
is pending before the Hon’ble Supreme Court but the pendency of the said
SLP has no bearing on the prayer seeking permission to place on record
original hard disks.
13. He submits that the documents can be brought on record at any stage
of the trial and such trial ends only with the pronouncement of sentence and
not merely upon closure of evidence. To buttress his contention, Mr Guleria
places reliance on the decision in Sukhpal Singh Khaira vs. The State of
Punjab: (2023) 1 SCC 289, the relevant part of which reads as under:
“29. The above aspects would indicate that even after the
pronouncement of the judgment of conviction, the trial is not
complete since the learned Sessions Judge is required to
apply her/his mind to the evidence which is available on
record to determine the gravity of the charge for which the
accused is found guilty; the role of the particular accused
when there is more than one accused involved in an offence
and in that light, to award an appropriate sentence.
Therefore, it cannot be said that the trial is complete on the
pronouncement of the judgment of conviction alone, though
it may be so in the case of acquittal as contemplated under
Section 232CrPC, since in that case there is nothing further to
be done by the learned Judge except to record an order of
acquittal which results in conclusion of trial.”
(emphasis supplied)
14. He further contends that the concession given by the petitioner/CBI
regarding non-reliance on original hard disks is a concession in law thus, the
same will not operate as estoppel. Further, the said concession was only
conditional as the petitioner/CBI had categorically reserved its right to rely
on the hard disks (HDDs) in future.
15. Referring to the provisions of Section 165 of the Indian Evidence Act,
1872 he submits that the court cannot dispense with primary evidence of a
document and for this reason also the learned Trial Court ought to have
allowed the petitioner/CBI to place on record the original hard disks, which
is the primary evidence.
16. It is thus, urged by Mr. Guleria that the impugned order be set aside
and consequently the application under Section 91 CrPC filed by the
petitioner / CBI be allowed.
17. Per contra, Mr Kapil Sibal, learned senior counsel for the respondent
no.1 submits that in the present case the FIR was registered as early as on
23.11.2009 and the hard disks were seized by the CBI from PW-5, namely,
Amrit Ghotra vide seizure memo dated 28.11.2009. Thereafter, the CDs of
the extracts of said hard disks were forwarded by CBI, Kolkata to CBI,
Delhi on 18.12.2009. The chargesheet was filed on 04.10.2010 but despite
the hard disks having been seized prior to filing of chargesheet, the same
were neither deposited in the learned Trial Court in terms of Section 102
CrPC nor made part of the chargesheet.
18. Mr. Sibal submits that an application seeking filing of hard disks
came to be filed only on 13.03.2020, but prior thereto on different occasions
the petitioner / CBI took categorical stand not to rely upon the hard disks.
19. He submits that in the reply dated 17.01.2012 given in response to the
application dated 24.12.2011 of the accused no.3 filed under Section 207
CrPC whereby copy of the hard disks were sought, it was stated by the CBI
that the hard disks/clones have not been supplied nor have they been
deposited in the Court as same are not being relied upon at present. Even the
IO who had filed chargesheet stated that the copies of all relied upon
documents have been supplied to the accused persons in terms of Section
207 CrPC.
20. According to Mr. Sibal, the charges were framed by the learned
Special Judge on 24.05.2012. Even thereafter an inspection application was
filed by accused no.5 and the same bears an endorsement that no CD
mentioned in seizure memo i.e. D-26 was found on record. Likewise, 15
CDs mentioned in D-19 were not on record. To buttress his contention, Mr.
Sibal invited attention of the Court to the said inspection application dated
13.07.2012.
21. Further referring to the statement of Amrit Ghotra, who was examined
as PW-5 by the CBI, Mr. Sibal submits that the said witness has only proved
the seizure memo (D-26) but neither hard disks nor CDs have been proved
through him.
22. Inviting the attention of the Court to the additional submissions dated
26.09.2014 filed by the CBI in Crl.M.C.2455/2012, Mr. Sibal contends that
in response to the queries of the Court during the proceedings on 04.07.2014
and 22.08.2014 in Crl.M.C.2455/2012 and Crl.Rev.P.385/2012 [petitions of
accused challenging the order on charge and the charges framed], CBI
reaffirmed that it had made a statement that hard disks will not be relied
upon in the trial. The relevant queries no.17 and 19 and response thereto,
reads thus:
“Q-17:Did CBI made a statement in the Trial Court that the
Hard Disk containing the video recording and the Hard
Disk containing the audio recordings would not be relied
upon in the trial? Legal positions thereof?
Ans: Yes. However the Hard Disk of Hotel Sheraton in sealed
condition are available to assist the court with regard to
the purity/authenticity of the video footage dated
23.11.2009.
Q-19:Where are the 15 CDs along with 6 CDs of sample voices
sent to CFSL and 2 Hard Disks of Hotel Sheraton?
Ans: The above articles in sealed condition (15 CDs along
with 6 CDs of sample voices with seal of CFSL) are lying
in the Malkhana of CBI.”
(emphasis supplied)
23. He submits that subsequently a decision was rendered by this Court
on 20.11.2014 passed in Crl.M.C. 2455/2012 and Crl.Rev.P. 385/2012,
whereby accused no.3 and accused no.5 were discharged and the video CD,
as well as, audio CD, were held to be inadmissible. The said decision was
challenged by the petitioner/CBI before the Hon’ble Supreme Court of India
by filing an SLP (Crl.) No.3713-3716/2015, which is still pending.
24. Mr Sibal submits that total 24 witnesses have been examined by the
CBI, of which 13 witnesses were examined post 2018, but it is only on
13.03.2020 that the petitioner/CBI filed an application under Section 91
CrPC seeking permission to place on record the hard disks, after the
respondents/accused had revealed their entire defence.
25. Mr. Sibal submits that application under Section 91 CrPC came to be
dismissed vide impugned order dated 13.05.2022 and the present petition
was filed on 30.05.2023 but no stay of the trial proceedings was either
insisted upon or granted. In the meanwhile, the trial and the final arguments
were concluded and the judgment was reserved for pronouncement. He
submits that at this stage the process of pronouncing the judgment cannot be
impeded. Reliance in this regard was placed on decision dated 02.02.2024
of Hon’ble Supreme Court in Manoj Daga v. Sanjay Nilkanth Derkar,
26. Mr Mohit Mathur, learned Senior Counsel, who also appeared on
behalf of the respondent no.1, submits that a right of an accused under
Section 207 CrPC is a facet of Article 21 of the Constitution of India and it
ensures fair trial. According to him, Section 207 CrPC imposes a duty on
the prosecution to supply all relied upon documents. Expanding on his
argument, he submits that the hard disks were consciously and deliberately
excluded from the trial and the accused persons led their defence and
completed the entire trial premised on the stand of the petitioner/CBI that
the hard disks will not be relied upon.
27. He submits that it is the requirement of law that all documents
through which the prosecution seeks to prove its case are to be supplied to
the accused at the inception so as to enable the accused to prepare his
defence accordingly. At a later stage, the prosecution cannot be permitted to
fill up lacunae. In support of his contention, Mr. Mathur places reliance on
the decision of the Hon’ble Supreme Court in Arjun Panditrao Khotkar vs.
Kailash Kushanrao Gorantyal & Ors.: (2020) 7 SCC 1.
28. He submits that the petitioner/CBI had made a categorical statement
of fact that it shall not rely upon the hard disks during the trial and this
concession of fact cannot be withdrawn and is binding on the petitioner/CBI.
According to him the present is not a case of inadvertence wherein hard
disks were mistakenly not relied upon and not deposited in Court but it is a
concession / informed decision taken by the CBI not to rely upon the hard
disks during trial which was communicated to the accused in unequivocal
terms.
29. He submits that the hard disks sought to be placed on record cannot
be permitted also for the reason that it will cause grave prejudice to the
accused persons for the reason that the accused persons have disclosed their
entire defence during the trial.
30. Next, it is submitted by Mr Mathur that the reason which has been put
forth by the petitioner/CBI for not making the hard disks part of the
documents in the chargesheet through which the prosecution now seeks to
prove its case, is that video CD made from the said hard disks was being
relied upon by the petitioner/CBI, however, subsequently, this Court vide
judgement dated 20.11.2014 held the video CD as inadmissible, which
furnished the reason to place on record the primary evidence in the form of
hard disks. Repelling this argument of the petitioner/CBI, Mr. Mathur
invites the attention of the Court to the order dated 02.05.2012 of learned
Trial Court (page 16 of documents filed by the respondent no.1), to contend
that it had come on record as early as in May 2012 that the CD does not
contain the portion of allegation of chargesheet sought to be proved through
the said CD and despite that knowledge the petitioner/CBI never made an
endeavour to file/prove the hard disks by making the same as part of the list
of documents in the chargesheet.
31. He further submits that even after the judgment dated 20.11.2014, the
petitioner/CBI did not seek to place on record the hard disks and proceeded
with the trial. According to him, in fact, prosecution witnesses from PW-12
to PW-24 were examined by the petitioner/CBI from 2018 to 2020. He
submits that the application under section 91 CrPC came to be filed only on
13.03.2020 after a delay of over 08 years from the knowledge of fact that the
CD does not contain the portion of allegation of chargesheet and after a
delay of almost 06 years from the date of judgment dated 20.11.2014.
32. He contends that even the present petition was filed after a delay of
one year from the date of impugned order dated 13.05.2022 but intriguingly,
in the petition, the CBI did not file an application seeking interim relief. In
the absence of the interim relief, the trial proceeded and terminated in terms
of provisions of Section 353(1) CrPC and the judgment was reserved by the
learned Trial Court.
33. Mr. Mathur submits that once a judgment is reserved for
pronouncement, the only remedy that is equally available to both the
prosecution and the accused depending on the outcome of the case, is an
appeal. Placing reliance on the decision in Vinod Kumar Singh vs. State of
Rajasthan: 2008 SCC OnLine RAJ 418, Mr Mathur contends that trial
stands terminated on the reserving of a case for pronouncement of judgment
and no application under Section 311 CrPC, or for that matter under section
91 CrPC, could be entertained at that stage.
34. Lastly, Mr Mathur contends that Article 21 of the Constitution of
India also ensures fairness in the trial and the prosecution cannot fill lacunae
in its case and accused cannot be taken by surprise at the end of trial, once
he has argued his entire case and revealed his defence, as well as, position in
law. He, therefore, urges the Court that the petition of the petitioner/CBI be
dismissed.
35. I have heard the learned SPP for the petitioner, as well as, the learned
Senior Counsel for the respondents and have perused the material on record.
36. It is not in dispute that the hard disks were seized by the CBI prior to
the filing of chargesheet, but the same were neither deposited with the
learned Trial Court in terms of Section 102 CrPC nor were made part of the
chargesheet.
37. From the record it is evident that the petitioner/CBI at following
stages had spelled out its stand in unequivocal terms that it will not be
relying upon the hard disks during trial:
i.In the reply dated 17.01.2012 filed to an application dated 24.12.2011
of accused no.3 under Section 207 CrPC whereby copy of the hard
disks were sought, it was stated by the CBI that the hard disks/clones
have not been supplied nor have they been deposited in the Court as
same are not being relied upon at present.
ii. The IO who had filed chargesheet, namely, D.S. Chauhan, was
examined on oath as CW-1 on 22.02.2012. He stated that the copies of
all relied upon documents have been supplied to the accused persons in
terms of Section 207 CrPC. Thus, the proceedings under Section 207
CrPC were closed as complied with on the basis of above stand of the
CBI / statement of IO.
iii. The additional submissions dated 26.09.2014 filed by the CBI
in Crl. M.C. 2455/2012, in response to the queries of the Court during
the proceedings on 04.07.2014 and 22.08.2014 in Crl.M.C.2455/2012
and Crl.Rev.P.385/2012 [petitions of accused challenging the order on
charge and the charges framed] the CBI reaffirmed that it had made a
statement that hard disks will not be relied upon in the trial.
38. Subsequent thereto, the trial proceeded and the CBI examined all the
witnesses and closed its evidence on 01.11.2023 in terms of Section 242
CrPC. Thereafter, the defence also closed its right of defence evidence under
Section 243 CrPC. Then, the statement of the accused under Section 313
CrPC was recorded on 21.11.2023 and additional statement under Section
313 CrPC was recorded on 13.12.2023. Thus, it goes without saying that at
various stages of the trial the accused persons must have unfolded their
entire defence premised on the concession made by the petitioner/CBI to the
effect that it would not be relying upon the hard disks, therefore, if at this
stage the petitioner/CBI is allowed to place on record the hard disks, it will
cause grave prejudice to the accused.
39. It is a cardinal principle of criminal jurisprudence that the accused is to be supplied with all documents that the prosecution seeks to rely upon, before the commencement of the trial. There cannot be piecemeal disclosure of material on which the prosecution seeks to base its case. The requirement to disclose the entire incriminating material prior to framing of charge stems from the right of the accused of fair opportunity to meet the case of the prosecution and to effectively put forth the defence.
40. To elaborate, such requirement is imperative to afford a meaningful opportunity to the accused to defend at the following stages - firstly, prior to commencement of trial to enable the accused to contest the framing of charge and seek discharge. Secondly, in case the accused fails to seek discharge, he should have fair opportunity to cross-examine prosecution witnesses and put his defence to them. Thirdly, to enter on his defence and adduce any evidence in support thereof.
41. Thus, requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement. Reference in this regard may be had to the decision of Hon’ble Supreme Court in Arjun Panditrao Khotkar (supra), wherein the Court while adverting to the question that at what stage certificate under Section 65-B of the Evidence
Act could be placed on record, both in the context of civil cases, as well as,
the criminal trials, observed as under:
“52. We may hasten to add that Section 65-B does not speak of
the stage at which such certificate must be furnished to the
Court. In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10
SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] , this Court did observe that such
certificate must accompany the electronic record when the
same is produced in evidence. We may only add that this is so
in cases where such certificate could be procured by the
person seeking to rely upon an electronic record. However, in
cases where either a defective certificate is given, or in cases
where such certificate has been demanded and is not given by
the person concerned, the Judge conducting the trial must
summon the person/persons referred to in Section 65-B(4) of
the Evidence Act, and require that such certificate be given by
such person/persons. This, the trial Judge ought to do when
the electronic record is produced in evidence before him
without the requisite certificate in the circumstances
aforementioned. This is, of course, subject to discretion being
exercised in civil cases in accordance with law, and in
accordance with the requirements of justice on the facts of
each case. When it comes to criminal trials, it is important to
keep in mind the general principle that the accused must be
supplied all documents that the prosecution seeks to rely
upon before commencement of the trial, under the relevant
sections of CrPC.
54. It is pertinent to recollect that the stage of admitting
documentary evidence in a criminal trial is the filing of the
charge-sheet. When a criminal court summons the accused
to stand trial, copies of all documents which are entered in
the charge-sheet/final report have to be given to the accused.
Section 207 CrPC, which reads as follows, is mandatory.
Therefore, the electronic evidence i.e. the computer output,
has to be furnished at the latest before the trial begins. The
reason is not far to seek; this gives the accused a fair chance
to prepare and defend the charges levelled against him
during the trial. The general principle in criminal
proceedings therefore, is to supply to the accused all
documents that the prosecution seeks to rely upon before the
commencement of the trial. The requirement of such full
disclosure is an extremely valuable right and an essential
feature of the right to a fair trial as it enables the accused to
prepare for the trial before its commencement.
56. Therefore, in terms of general procedure, the prosecution
is obligated to supply all documents upon which reliance may
be placed to an accused before commencement of the trial.
Thus, the exercise of power by the courts in criminal trials in
permitting evidence to be filed at a later stage should not
result in serious or irreversible prejudice to the accused. A
balancing exercise in respect of the rights of parties has to be
carried out by the court, in examining any application by the
prosecution under Sections 91 or 311 CrPC or Section 165 of
the Evidence Act. Depending on the facts of each case, and
the court exercising discretion after seeing that the accused is
not prejudiced by want of a fair trial, the court may in
appropriate cases allow the prosecution to produce such
certificate at a later point in time. If it is the accused who
desires to produce the requisite certificate as part of his
defence, this again will depend upon the justice of the case —
discretion to be exercised by the court in accordance with law.
(emphasis supplied)
42. Concomitant with an unfettered right of fair trial that flows from
Article 21 of the Constitution of India, there is a corresponding duty cast
upon the criminal courts under Section 207 CrPC to ensure that all
documents that the prosecution seeks to rely upon are supplied to the
accused before the commencement of trial.
43. No doubt it is the duty of the criminal court to allow the prosecution
to correct an error in the interest of justice1 at the later stages as well but in
criminal trials where the Courts decide to exercise their powers to allow
evidence to be brought at a later stage under Sections 91 or 311 CrPC or Section 165 of the Evidence Act, the same is not to be done for filling up the lacunae during the trial but only where the prosecution has mistakenly not filed a document. At the same time Court has also to ensure that permitting such evidence at a later stage in the Criminal trial should not result in serious or irreversible prejudice to the accused.2
44. In Mohanlal Shamji Soni (supra) the Hon’ble Supreme Court while
dealing with provisions of Section 540 of the Criminal Code of Procedure
1898 which is pari materia with Section 311 CrPC, 1973 held that lacuna
left by the prosecution cannot be allowed to be filled to the disadvantage of
the accused or to cause serious prejudice to the defence of the accused. The
relevant observations read thus:
“18...Therefore, it should be borne in mind that the aid of the
section should be invoked only with the object of discovering
relevant facts or obtaining proper proof of such facts for a just
decision of the case and it must be used judicially and not
capriciously or arbitrarily because any improper or capricious
exercise of the power may lead to undesirable results. Further
it is incumbent that due care should be taken by the court
while exercising the power under this section and it should
not be used for filling up the lacuna left by the prosecution
or by the defence or to the disadvantage of the accused or to
cause serious prejudice to the defence of the accused or to
give an unfair advantage to the rival side and further the
additional evidence should not be received as a disguise for a
retrial or to change the nature of the case against either of the
parties."
(emphasis supplied)
1 Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173
2 State of Karnataka v. T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi & Ors., 2023
SCC OnLine SC 1447 ; Arjun PanditRao Khotkar (supra) [para 56]
45. Likewise, in Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110,
the Hon’ble Supreme Court in the context of Section 311 CrPC observed
that mistakes of not adducing proper evidence or failing to bring relevant
material on record could be permitted to be rectified only when such
mistakes are due to any “oversight” or “inadvertence”. The relevant
observations read as under:
"8. Lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the
prosecution case. The advantage of it should normally go to
the accused in the trial of the case, but an oversight in the
management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can be foreclosed from
correcting errors. If proper evidence was not adduced or a
relevant material was not brought on record due to any
inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. After all, function of
the criminal court is administration of criminal justice and not
to count errors committed by the parties or to find out and
declare who among the parties performed better."
(emphasis supplied)
46. Similarly, a three Judge bench in Arjun Panditrao Khotkar (supra),
observed that in a criminal trial it is assumed that the prosecution has
concretised its case against an accused before commencement of the trial
and the prosecution ought not to be allowed to fill up any lacunae during a
trial. It was further observed that the only exception to this general rule is
where the prosecution had “mistakenly” not filed a document, as recognised
in CBI v. R.S. Pai.3 The relevant extract reads as under:
3 (2002) 5 SCC 82
“55. In a criminal trial, it is assumed that the investigation
is completed and the prosecution has, as such, concretised
its case against an accused before commencement of the
trial. It is further settled law that the prosecution ought not
to be allowed to fill up any lacunae during a trial. As
recognised by this Court in Central Bureau of Investigation v.
R.S. Pai, (2002) 5 SCC 82, the only exception to this general
rule is if the prosecution had “mistakenly” not filed a
document, the said document can be allowed to be placed on
record. The Court held as follows:
‘7. From the aforesaid sub-sections, it is apparent
that normally, the investigating officer is required to
produce all the relevant documents at the time of
submitting the charge-sheet. At the same time, as
there is no specific prohibition, it cannot be held that
the additional documents cannot be produced
subsequently. If some mistake is committed in not
producing the relevant documents at the time of
submitting the report or the charge-sheet, it is
always open to the investigating officer to
produce the same with the permission of the
court.’”
(emphasis supplied)
47. In the present case the FIR was registered on 23.11.2009 and the hard
disks (HDDs) were seized by the petitioner/CBI from PW-5 Amrit Ghotra
on 28.11.2009 whereas the charge sheet was filed on 04.10.2010. The
justification given by the petitioner/CBI for not filing the hard disks earlier
with the charge sheet is that it is only after the judgment dated 20.11.2014,
whereby a Coordinate Bench of this Court held audio and video CDs as
inadmissible, there arose an occasion to place the hard disks on record.
48. This submission of the petitioner/CBI is noted to be rejected.
Pertinently, after passing of the order dated 02.05.2012 by the learned Trial
Court, it had become apparent that the clipping/footage to support the
allegation in the chargesheet that three accused persons had met in the lobby
of hotel in question, could not be traced in the CD, but despite the said fact
coming to the notice of the petitioner/CBI, it did not make any application
for bringing the hard disks on record.
49. Even subsequent to the judgment dated 20.11.2014, the application
under Section 91 CrPC was filed only on 13.03.2020 i.e., after a delay of
over almost six years from the date of the said judgment. In the meanwhile,
the trial proceeded. As submitted by the respondents, the prosecution
witnesses from PW-12 to PW-24 were examined by the petitioner/CBI from
the year 2018 to 2020. The present petition itself came to be filed after a
delay of over one year from the date of the impugned order dated
13.05.2022. Intriguingly, no stay of the trial proceedings was insisted upon
nor an application seeking interim relief was filed by the petitioner/CBI.
Resultantly, the trial advanced to the final stage and subsequently terminated
in terms of Section 353(1) CrPC4. What remains is the pronouncement of
judgment.
50. The facts discussed above show that it was a conscious and well
4 353(1) CrPC reads as under:
1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the
presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the
parties or their pleaders,
1. by delivering the whole of the judgment; or
2. by reading out the whole of the judgment; or
3. by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is
understood by the accused or his pleader.
informed decision of the petitioner/CBI not to file the hard disks alongwith
the final report before the commencement of trial. Even the subsequent
lackadaisical approach of petitioner/CBI as noted above makes it evident
that it is not a case of an inadvertent mistake or where the petitioner could
not file hard disks with the final report under Section 173 CrPC due to
oversight nor it is a case where the hard disks were not available for being so
filed. Therefore, when the aforesaid dicta are applied to the factual matrix of
the present case, it is found that the test to produce additional material in the
form of hard disks is not satisfied.
51. The trial had commenced with the framing of charge more than a
decade back on 24.05.2012. Needless to say, a fair trial is a sacrosanct
principle under Article 21 of the Constitution of India and it takes within its
sweep the conception of a speedy trial. The sword of Damocles cannot be
allowed to forever hang on the heads of accused, falling unpredictably at the
whims of the prosecution seeking to produce additional documents at will.
Considering the fact that delay in the present case is caused by the
petitioner/CBI and such delay has led the trial to conclude, any interference
at this stage will not only violate the constitutional guarantee of a speedy
trial but will cause grave prejudice to the respondents/accused who have
disclosed and unfolded their entire defence.
52. In Manoj Daga (supra), the Hon’ble Supreme Court in an SLP
against the order of the NCLT deprecated the entertaining of a writ petition
by the High Court under Article 227 of the Constitution at the stage when
arguments had been addressed before the NCLT. The Supreme Court
further observed that the High Court ought not to have impeded the process
of pronouncement of judgment by the NCLT. The relevant part of the
judgment reads as under:-
“4 The High Court was not justified in entertaining a writ
petition under Article 227 of the Constitution at the stage
when arguments had been addressed on the IA filed by the
petitioner, raising an objection to the maintainability of the
main petition before the NCLT. The High Court ought not to
have impeded the process of the NCLT pronouncing the
judgment. Thereafter, if any of the parties was aggrieved by
the order of the NCLT, it was open to them to pursue their
rights and remedies in accordance with law.”
53. It also needs to be adverted to that any document or other thing
envisaged under Section 91 CrPC can be ordered to be produced for “the
purpose of investigation, inquiry, trial or other proceedings under the
Code". In the context of trial, pendency of the trial is a pre-requisite for
ordering production of any document therein. A perusal of sub-section (1) of
Section 353 CrPC shows that the stage for pronouncement of judgment in a
criminal case comes after the termination of trial. Therefore, at this stage
giving a direction or permission to file additional documents, when the trial
has concluded and the case is fixed for pronouncement of judgment, will not
be in the interest of justice especially when it is the lack of alacrity on part
of the petitioner/CBI which is responsible for this situation.
54. Reliance placed on the decision of Sukhpal Singh Khaira (supra) to
contend that trial concludes with the imposition of sentence, is misplaced in
the context of the present case. In the said case, question involved was
whether additional accused could be summoned to stand trial after the other
accused had already been convicted, in view of the phrase “could be tried
together with the accused” contained in Section 319(1) CrPC. In this
backdrop it was held that where there are more than one accused and if one
or more among them are acquitted and the others are convicted, the trial
would stand concluded only as against the accused who are acquitted and
the trial will conclude against the convicted accused with the imposition of
sentence. At the same time, it was also observed that the ‘conclusion of trial’
is to be understood as the stage before pronouncement of the judgment. The
relevant extract reads as under:
“23. ……. Obviously, when such power is to summon the
additional accused and try such a person with the already
charged accused against who the trial is proceeding, it will
have to be exercised before the conclusion of trial. The
connotation “conclusion of trial” in the present case cannot
be reckoned as the stage till the evidence is recorded, but, is
to be understood as the stage before pronouncement of the
judgment as already held in Hardeep Singh5 since on
judgment being pronounced the trial comes to a conclusion
since until such time the accused is being tried by the court.”
(emphasis supplied)
55. Further, Section 91 CrPC and the title of Chapter VII - ‘Process to
compel the production of things’ – in which the said Section occurs,
presupposes that when the document is withheld or not produced, process
may be initiated to compel production thereof from the custody of someone
else, whereas the present is a case where the petitioner/CBI was in custody
of the hard disks and it had voluntarily taken well informed and conscious
decision not to file the hard disks and then did not act with promptitude
despite being alive to the developments that – (i) the footage to support the
5 Hardeep Singh v. State of Punjab, (2014) 3 SCC 92
prosecution version that three accused persons had met in the lobby of hotel
in question could not be traced in the CD as observed in order dated
02.05.2012, and (ii) later the CDs were held to be inadmissible by the High
Court in its judgment dated 20.11.2014. For this reason, as well, Section 91
CrPC will not come to the aid of the petitioner / CBI.
56. There is yet another facet of the issue involved. The stand taken by
the petitioner / CBI is that the concession given by the petitioner regarding
non-reliance on original hard disks is a concession in law, thus, the same
will not operate as estoppel. This contention of the petitioner is not tenable,
inasmuch as repeated stand taken not to rely on the hard disks cannot be said
to be a concession in law but is a concession on fact. Premised on the said
concession the trial proceeded. If at this stage, the concession given by the
petitioner is allowed to be withdrawn, it will cause prejudice to the accused
persons who disclosed their entire evidence at different stages of the trial
relying upon the said concession. It is trite that concession made on facts can
be withdrawn only if it is shown that the concession had been made either
on misapprehension or on misrepresentation of facts.6 It is not the case of
the petitioner/CBI that such a concession of fact was made by it either on
misapprehension or on misrepresentation of facts.
57. The upshot of above discussion is that the learned Trial Court was
justified in dismissing the application of the petitioner/CBI under Section 91
CrPC. No ground is made out by the petitioner to interfere with the decision
of the learned Trial Court. Therefore, the petition lacks merit and is
accordingly, dismissed.
58. The present petition has been filed seeking following relief:-
“i) Set aside the impugned order dated 09.06.2023 passed in
C.C. no. 144/2019 arising out of RC-
03(A)/2009/CBI/ACU-IX/N.D.C.S u/s Sec 120-B IPC r/w
Sec. 7, 8, 9, 12 and 13(2) r/w 13(1)(d) of PC Act 1988,
titled CBI versus R. Vasudevan & Ors, presently pending
before the court of Sh. Ashwani Kumar Sarpal, Special
Judge- PC Act-08, Rouse Avenue Courts, Central
District, New Delhi.”
59. The challenge in the present petition is to the order dated 09.06.2023,
which undisputedly is corollary of the order dated 13.05.2022, impugned in
Crl.M.C. 4107/2023. The said petition has already been dismissed as above.
60. Vide impugned order dated 09.06.2023 the learned Special Judge (PC
Act), CBI-08 has discarded the statements of the witnesses who had been
cited to prove the audio and video recording in the CDs relating to the
accused persons.
61. As noted in the earlier part of this judgment, the said audio and video
CDs were held to be inadmissible by the judgment of this Court dated
20.11.2014 passed in Crl.M.C.2455/2012 for want of required certificate in
terms of Section 65B of the Evidence Act. In this factual backdrop the
learned Special Judge observed that it is of no use to call the prosecution
witnesses to prove the same. Consequently, the witnesses who had to prove
the CDs of audio and video recording of intercepted calls and the CCTV
footage, respectively, were dropped holding that they cannot be permitted to
Balu Sudam Khalde and Anr. vs. State of Maharashtra; 2023 SCC OnLine SC 355 (para 35) be examined.
62. The petitioner/CBI has though, challenged the judgment of this Court
dated 20.11.2014 passed in Crl.M.C.2455/2012 before the Hon’ble Supreme
Court of India by filing the SLP (Crl.) 3713-3716/2015, but the same is
stated to be still pending before the Hon’ble Supreme Court, therefore, the
finding recorded in the said judgment that audio and video CDs in question
are inadmissible in evidence for want of required certificate in terms of
Section 65B of the Evidence Act, have not yet been reversed.
63. Further, this Court in the earlier part of the judgment has also taken a
view that the petitioner/CBI cannot be permitted to bring hard disks on
record at this stage.
64. Therefore, there is no occasion for the petitioner/CBI to prove either
the said CDs or the hard disks. Accordingly, the witnesses cited to prove the
audio and video recordings are no more the relevant witnesses. Thus, there
is no infirmity in the impugned order whereby the said witnesses have been
dropped and not permitted to be examined by the petitioner/CBI.
65. In view of the above discussion, the petition is dismissed. All the
pending applications are disposed of.
VIKAS MAHAJAN, J.
MAY 22, 2024
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