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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep K.Shinde, J.
Mukesh P. Meena - Appellant
Versus
CBI, ACB - Respondent
Criminal Application (Apl) No.544 of 2021
Decided On : 26-11-2021
Sec. 482 - Application challenges the order declining to direct investigator to produce documents sought by the accused in CBI Special Case No.45 of 2019 - Cr.P.C. - Sec. 91 - Indian Evidence Act, 1871 - Sec. 173(5) - The court discussed the accused's right to seek production of documents at the stage of framing charge, the nature of documents that can be summoned, and the admissibility of statements of witnesses recorded under Sec. 161 of the Cr.P.C.
Fact of the Case:
The accused sought production of various documents at the stage of framing charge to prove innocence and assist the court in deciding the charges against him. The trial court declined to summon the documents, relying on the judgment of the State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359.
Finding of the Court:
The court found that the accused's entitlement to seek production of documents under Sec. 91 would ordinarily not come till the stage of defense. The court also held that at the appropriate stage, it is empowered to summon production of documents not part of the charge-sheet but of sterling quality, which has been withheld by the investigator to ensure fair and impartial trial.
Issues: The main issue was whether the accused has the right to seek production of documents at the stage of framing charge and whether the expression 'Document or other thing' employed in Sec. 91 of the Cr.P.C. includes a statement of witnesses recorded under Sec. 161(3) of the Cr.P.C.
Ratio Decidendi: The court held that the accused's right to seek production of documents under Sec. 91 would ordinarily not come till the stage of defense. It also clarified that the expression 'Document or other thing' used in Sec. 91 of the Cr.P.C. excludes the statements of witnesses recorded under Sec. 161 of the Cr.P.C.
Final Decision: The court rejected the application but granted the accused liberty to move an application for production of statements of witnesses at the appropriate stage of trial.
JUDGMENT
S.K.SHINDE, J. - Rule.
2. Rule made returnable forthwith. With consent of the learned counsel for the parties, matter is taken up for final hearing forthwith.
3. This application under Sec. 482 of the Code of Criminal Procedure, 1973 ( "Cr.P.C. " for short) challenges the order dated 30th March, 2021, by which the Special Judge, CBI, Greater Bombay, declined to direct investigator to produce the documents sought by the applicant (accused) in CBI Special Case No.45 of 2019.
4. Back-ground facts giving rise to this application are as under:
The Central Bureau of Investigation registered a regular case BA1/2018/A0012 on a written complaint 25th April, 2018 against the applicant, Deputy Commissioner of Customs and others under Sec. 120-B of the Indian Penal Code, 1860 and Sec. 7, 13(2) read with Sec. 13(1)(d) of the Prevention of Corruption Act, 1988. After completion of investigation, charge-sheet was filed on 28th November, 2019 against the applicant and seven others. Whereafter, applicant-accused approached the trial Court with the prayer that entire material available with the investigator, which was not made part of the charge-sheet, be summoned under Sec. 91 of the Cr.P.C. Applicant sought production of following documents;
"(i) Statements of witnesses,
(ii) Call Detail Records
(iii) Internal reports, recommendations of supervisory officers,
(iv) Opinion of law officers,
(v) Findings recorded by the Investigating Officer on the complaint given by the applicant,
(vi) Comments recorded by the Deputy Inspector General and Joint Director of the Central Bureau of Investigation on draft investigation report placed before them,
(vii) Rebuttal findings given by the investigating officer on the representation given by the applicant,
(viii) Correspondence between the Central Bureau of Investigation and Customs Department from the date of registration of the First Information Report,
(ix) Report with comments of the Superintendent of Police, CBI, Anti Corruption Bureau, submitted on investigation report produced before
(x) Copy of comments of the Investigating Officer or any other proper officer of the CBI with regard to representation of Sandip Yadav (Accused No.6)
(xi) Proof of submission of the Investigating Officers or any other proper officer of the CBI and comments on representation of the applicant and Sandip Yadav (co-accused) to the Sanctioning Authority,
(xii) Sanction order issued by sanctioning authority,
(xiii) CFSL report along with a) auditory report, b) spectrogram report and work-sheet,
(xiv) Comments recorded by DIG and Joint Director on draft investigation report,
(xv) Comments of Legal Department/ Dy. Legal advisor on draft investigation report,
(xvi) Rebuttal findings of Investigating Officer,
(xvii) Note Sheet of opinion of SP (CBI),
(xviii) Opinion of Investigating Officer on application of Mr. Kunal Kashyap officer of Customs Department for his deputation in CBI,
(xix) Seizure Panchanama of Mobile Phone,
(xx) Any other report regarding Cell Phone Data recovery,
(xxi) Proof of submission of Law Officer Report to CVC"
5. The Central Bureau of Investigation agreed to produce sanction order; CFSL report; CD and DVR recorder alleged to have been used during the course of the investigation; entire Call Detail Records for the month of April, 2018 in respect of mobile used by the applicant and CDR for the month of April, 2018 in respect of mobile used by co-accused Sandeep Yadav and Chandrashekhar Rane; seizure panchanama for mobile phone of applicant, coaccused Sandeep Yadav; another report recording cell phone data recovery. However, the CBI declined to produce documents relating to draft investigation report submitted by Investigating Officer to Supervisory Officer. CBI, relied on the Criminal Manual, 2005, Chapter 19 thereof and claimed that contents of Supervisory Officers ' report being ordinarily classified as "Confidential ", the same cannot be produced for claiming privilege under Sec. 124 of the Indian
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