IMPORTANT POINT
Normally, documents gathered during investigation upon which prosecution wants to rely are required to be forwarded to Magistrate, but if there is some omission, it would not mean that remaining documents cannot be produced subsequently.

JUDGMENT :

(Abhay S. Oka, J.)

FACTUAL ASPECTS

1. A very short controversy arises in these appeals. The appellant is accused No. 7, who, along with others, is facing trial in Case No. RC-217/2013/A0004 (CC No.3 of 2013) registered for various offences under the Prevention of Corruption Act, 1988 (for short, ‘the PC Act’). An FIR was registered on 3rd May 2013 for the offences punishable under Section 120-B of the Indian Penal Code, 1860 (for short, ‘the IPC’) and Sections 7, 8 and 10 of the PC Act. The dispute revolves around two Compact Discs.

2. Between 8th January 2013 and 1st May 2013, the Ministry of Home Affairs had granted permission to intercept the telephone calls of accused nos.2, 3, 5, 6 and 8. The Ministry of Home Affairs also granted permission during this period to intercept the telephone calls of one Manoj Garg. On 4th May 2013 and 10th May 2013, two CDs (hereafter referred to as ‘the CDs’), containing call records of 189 and 101 calls, respectively, were seized. On 27th May 2013, the CDs were sent to the Central Forensic Science Laboratory (for short, ‘the CFSL’) for analysis. Sanction was granted thereafter on 2nd July 2013 under Section 19 of the PC Act. A charge sheet was filed by the respondent, the Central Bureau of Investigation (CBI), on July 2, 2013. On 4th July 2013, cognizance was taken by the Special Court of the offences punishable under Section 120-B of the IPC and Sections 7, 8, 9 and 10 of the PC Act.

3. On 25th October 2013, the CFSL forwarded its report and original sealed CDs back to the respondent, CBI. On 30th October 2013, though a supplementary chargesheet was filed along with the CFSL report, the CDs were not filed. On 11th March 2014, charges were framed against the accused. Ultimately, the recording of the evidence of the Prosecution Witnesses (PWs) commenced on 15th September 2014.

4. On 16th September 2014, while recording the evidence of PW-3, the CDs which were not filed on record were sought to be played by the prosecution. An objection was raised by the learned counsel representing the accused that the CDs were neither relied upon nor filed in the Court. Moreover, copies of the CDs were not supplied to the accused.

5. On 17th September 2014, the respondent-CBI filed an application for preparing copies of the said CDs. Thereafter, the evidence of PW-5 was recorded, and the evidence of PW-6 was partially recorded. The application made by the respondent, CBI, was strongly opposed by some of the accused. On 27th September 2014, the learned Special Judge passed an order allowing the application of the respondent, CBI. As the appellant was not heard before the order was passed, a quashing petition was filed by the appellant before the Delhi High Court. By the order dated 12th May 2015, the Delhi High Court allowed the petition. While setting aside the order dated September 27, 2014, the Delhi High Court issued a direction to the learned Special Court to permit the respondent-CBI to file an application to bring on record the CDs.

6. Accordingly, an application was filed by the respondent- CBI for production of the CDs by invoking Section 173(5) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’). On 13th October 2015, an order was passed by the learned Special Judge directing playing of the two CDs in the Court and comparing the same with unsealed CDs which were in Malkhana of the respondent-CBI. An application made by the accused opposing the prayer for playing the CDs was rejected by the order dated 31st October 2015. A petition was filed by the appellant before the Delhi High Court challenging the orders dated 13th October 2015 and 31st October 2015.

7. On 6th November 2015, the orders were set aside by the Delhi High Court with a direction to the Special Court to first decide whether the application of the respondent-CBI for production of CDs can be allowed. On 6th February 2016, the learned Special Judge allowed the application of the respondent-CBI to place the two CDs on recor