Delhi High Court - Orders
Girdhari Lal Soni @G.L Soni & Anr vs Central Bureau Of Investigation on 23 May, 2022
Author: Asha Menon
Bench: Asha Menon
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2429/2022, CRL.M.A. 10209/2022 (for stay)
GIRDHARI LAL SONI @G.L SONI & ANR. ..... Petitioners
Through: Mr. Pramod Kumar Dubey, Senior
Advocate with Mr. SPM Tripathi, Mr.
Deepak Sharma, Mr. Anurag Andley,
Mr. Kausutubh Chouhan, Ms. Trisita
Parashar, Mr. Akshat Sharma and Mr.
Prince Kumar, Advocates
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Mridul Jain, SPP
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 23.05.2022 Crl.M.A.10210/2022 (Exemption)
1. Allowed subject to just exceptions.
2. The application is disposed of.
CRL.M.C. 2429/2022, CRL.M.A. 10209/2022 (for stay)
3. This petition has been filed under Section 482 Cr.P.C. by two of the accused in CC No.53/2020 against the orders dated 4 th March, 2022 passed by the learned Special Judge (PC Act), CBI-21, Rouse Avenue Courts, New Delhi.
4. The petition has been filed with the following prayers:
"A. Quashing orders dated 04.03.2022 and consequential Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 1 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:02 orders passed by Ld. Special Judge (P.C. Act) CBI-22, Rouse Avenue District Court in the matter of C.C. No.53/2022 titled as "CBI V. Satya Narain Sharma and Others" arising out of R.C. No.DAI 15(A)/2020/CBI/AC-III pending before the Ld. Special Judge (P.C. Act), CBI-22, B. Directing the CBI to supply deficient documents in the matter of C.C. No.53/2022 titled as "CBI V. Satya Narain Sharma and Others" arising out of R.C. No.DAI 15(A)/2020/CBI/AC-III pending before the Ld. Special Judge (P.C. Act), CBI-22, and C. Pass any such further orders/directions as deemed fit, just and proper in the present facts and circumstances."
5. However, in the course of the arguments, Mr. Pramod Kumar Dubey, learned senior counsel for the petitioners explained that the petitioners were not seeking the quashing of the order dated 4 th March, 2022 and the other consequential orders, but were wanting a totally different relief, namely, the deferring of the arguments on charge till the mirror image of the mobile phones mentioned at Serial No.11 to 14 in Annexure-C to the chargesheet was not supplied to the petitioners. The learned senior counsel has argued at length that it was the right of the petitioners, being the accused, to obtain copies of documents or statements not relied upon by the prosecution, but that in the present case, the prosecution was relying on the said mobile phones at Serial No.11 to 14 Annexure-C to the chargesheet. Reliance has been placed on the guidelines issued by the Supreme Court in Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. The State of Andhra Pradesh & Ors. [order dated 20th April, 2021 in Suo Moto Writ (CRL) No.(S) 1/2017] ("Guidelines" for short). Reliance Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 2 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:02 has also been placed on the decisions of the Supreme Court in Nitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC 93 as also the judgments of Co-ordinate Benches of this Court in Ashutosh Verma v. CBI 2014 SCC OnLine Del 6931 and Arvind Kejriwal and Anr. v. State NCT of Delhi 2020 SCC OnLine Del 1362. It was submitted that in all these cases, the right of the accused to all the materials collected by the Investigating Officer (IO) during investigation, whether or not relied upon by them in the chargesheet, were directed to be furnished to the accused persons. Thus, it was submitted that the SMS and WhatsApp chat of the seized mobile phones were required to be supplied.
6. The other limb of the argument of the learned senior counsel for the petitioners is that the arguments on charge could not be heard till the supply of these documents as the defence of the accused is built from the first day and if an opportunity is not granted to the accused to study the documents and seek a complete discharge on that basis, grave prejudice would be caused to them. It is also argued that this is not a case where the documents are in the custody of the accused, and thus are not of the nature to be excluded from the consideration of the learned Trial Court while framing charge. Therefore, it was prayed that the arguments on charge be deferred to a date post the supply of the mirror image of the WhatsApp chats and SMS of the seized mobile phones
7. Mr. Mridul Jain, learned counsel for the CBI, on the other hand, submitted that in terms of the Guidelines, what was required of the Investigating Officer was to list out those documents which they have taken into their possession, but were not relying on. The supply of the copies was dependant on an application being moved under Section 91 of the Cr.P.C.
Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 3 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:02But no such application has been moved by the petitioners. Moreover, since the prosecution was not relying on the SMS and WhatsApp chats, the copies of the same could not be supplied under Section 207 Cr.P.C. Nevertheless, since the Court had issued the directions, the same would be complied with, but there was no reason to call for deferring of the arguments on charge till the supply was effected.
8. I have heard the arguments of learned counsel at length and have perused the record as well as the cited case laws. As noted above, the prayers in the petition are vastly different from the prayers ultimately made before this Court. The first prayer runs counter to the interest of the petitioner, if the orders dated 4th March, 2022 were to be quashed. As regards the second prayer for supply of deficient documents, it is clear from the impugned order that the learned Trial Court has actually allowed this prayer and the only grievance appears to be that till date, the documents have not been supplied. Learned counsel for the respondent informs this Court that the mobile phones have been sent to the FSL in order to get the mirror images and that they would be obtained without delay and supplied. It is also informed that the copies of the CCTV footage have been furnished to the accused before the learned Trial Court.
9. The judgments relied upon by the learned senior counsel for the petitioners, as rightly pointed out by the learned counsel for the respondent, pre-date the Guidelines. These Guidelines would be referred to determine whether there is any grievance of the petitioners that require to be redressed. In para No.10 thereof, it is so recorded that the Supreme Court had taken into consideration all view points of the High Courts and considered divergence in opinions or reservations for adoption of various practices.
Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 4 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:02Directions have also been issued that these Guidelines be adopted by each High Court.
10. The Guidelines record the following;
"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. PC, 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. PC.3 for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. [Rule 4(i)]"
________________
391. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed -
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or
(c)to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 5 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:02
11. It is thus, clear that the "list" of such materials such as statements/documents seized, but not relied upon by the prosecution, should be furnished to the accused under Section 207/208 Cr.P.C. The purpose of the "list" is to allow an accused to seek appropriate orders if the production of such materials would be necessary for a proper and just trial. It is significant to note that the orders are to be sought under Section 91 Cr.P.C. Thus, though the supply of the "list" is under Section 207/208 Cr.P.C., if the accused seeks production of any document/object or statement from the "list" of such statement/documents and objects not relied upon by the prosecution, then the accused will have to move an application under Section 91 Cr.P.C. and the court would then proceed to determine the necessity of their production as per law, also being guided by the decisions of the Supreme Court and the High Courts in this regard.
12. Learned senior counsel for the petitioners submitted that the application that has been moved by the petitioners is not under Section 91 of the Cr.P.C. but under Section 207 Cr.P.C. and, therefore, supply could not be deferred to a later stage, that is, when the petitioners were to adduce their defence evidence. It may be noted that the application placed on the record as Annexure A-2 is titled as one under Section 207 Cr.P.C. The mobile phones are objects which have been listed in Annexure-C as "articles" that have been seized from the accused persons. The conversations through the mobile phones were recorded and the DVR has also been supplied to the accused. The voice samples have also been taken for analysis. The CDRs are on the record and all these copies have been supplied. It cannot, therefore, be said that the mobile phones are objects on which the prosecution is not going to place any reliance.
Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 6 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:0213. It is the other contents of the mobile phones seized by the Investigating Officer (IO) that were sought for by means of the application under Section 207 Cr.P.C. The learned Trial Court observed that the WhatsApp chats and SMS of the seized phones were necessary for the defence of the accused persons as was submitted before the learned Trial Court on their behalf. If that was so, the appropriate procedure would have been to either ask the accused persons to file an application under Section 91 Cr.P.C. at the appropriate stage, or to dispose of that part of the prayer, by considering the parameters for the disposal of an application under Section 91 Cr.P.C. Since that has not been done and the application has been treated as one under Section 207 Cr.P.C., clearly the supply of the same must precede the consideration of the charge that was required be framed.
14. In the circumstances, the present petition is disposed of alongwith the pending application directing the learned Special Judge (PC Act), CBI-21, Rouse Avenue Courts, New Delhi to defer the arguments on charge till the mirror image of the WhatsApp chats and SMS of the seized mobile phones at Serial No.11 to 14 are supplied to the accused persons and are also placed on the record before the learned Trial Court. However, it is clarified that it would be in the discretion of the learned Trial Court to consider the WhatsApp chats and SMS at the time of the arguments of charge and nothing in this order will tantamount to a direction to the learned Trial Court to so take them into consideration before framing of charge, particularly, since the contents of those SMS and WhatsApp chats are not before this Court.
Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 7 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:0215. The copy of this order be transmitted to the learned Trial Court electronically. Nothing in this order shall be an expression on the merits of the case.
16. The order be uploaded on the website forthwith.
ASHA MENON, J MAY 23, 2022 ak Signature Not Verified Digitally Signed CRL.M.C. 2429/2022 Page 8 of 8 By:MANJEET KAUR Signing Date:23.05.2022 20:02:02