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 iv. That the selective disclosure of excerpts of the opinion by Justice (Retd.) B.N. Srikrishna, amounted to cherry picking by SEBI which cannot be allowed. The accused is entitled to the complete document to ensure a fair trial.

v. That the action of SEBI of disclosing excerpts of the report clearly amounts to waiver of litigation privilege claimed by SEBI.

57. Before we part with the present appeal, another disconcerting aspect of this case that comes to the fore is SEBI’s attempt to cherry­pick the documents it proposes to disclose. There is a dispute about the fact that certain excerpts of the opinion of Justice (Retd.) B. N. Srikrishna, were disclosed to the appellant herein. It is the allegation of the appellant that while the parts which were disclosed, vaguely point to the culpability of the appellant, SEBI is refusing to divulge the information which exonerate it. Such cherry­picking by SEBI only derogates the commitment to a fair trial. In Nea Karteria Maritime Co Ltd v. Atlantic and Great Lakes Steamship Corporation, [1981] Com LR 138 at 139, Mustill J. held as under:

‘I believe that the principle underlying the rule of practice exemplified in Burnell v British Transport Commission [1956] 1 QB 187 is that where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.’  The aforesaid principle is often referred to as the ‘Cherry­ picking’ principle.

58. In the case at hand, SEBI could not have claimed privilege over certain parts of the documents and at the same time, agreeing to disclose some part. Such selective disclosure cannot be countenanced in law as it clearly amounts to cherry­picking.

59. In view of the aforesaid discussion, we allow the present appeal and direct the respondents to furnish a copy of the following documents to the appellant forthwith:­

(i) First opinion of Justice (Retired) B.N. Srikrishna