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2024 Supreme(Online)(GAU) 1094
HIGH COURT OF GAUHATI
Malasri Nandi, J
CHINTAN JAIN – Appellant
Versus
CBI/AC-1/NEW DELHI – Respondent
Crl.Pet. / 742 / 2024
MS. J BAISHYA, SC, CBI
The accused has no right to seek unrelied documents prior to charge framing under Section 91 Cr.P.C., as established in P. Ponnusamy vs. State of Tamil Nadu.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 91 - Indian Telegraph Act, 1885 - Surveillance orders - The petitioner sought to quash the order rejecting his application under Section 91 Cr.P.C. for production of documents related to surveillance, asserting the necessity for a fair trial. The court emphasized that the accused has no right to seek unrelied documents prior to framing of charges, as established in P. Ponnusamy vs. State of Tamil Nadu, and that such applications can only be made post-charge framing. (Paras 4, 17, 19)
(B) Fair Trial - Right to Disclosure - The court reiterated that the right to a fair trial includes the right to complete disclosure of evidence, but this right is circumscribed by the stage of the proceedings. (Paras 7, 18)
Facts of the case:
The petitioner, a director of a private firm, was implicated in a conspiracy involving illegal gratification related to railway contracts. He sought documents to challenge the legitimacy of the charges against him. (Paras 3, 4)
Findings of Court:
The court found that the application under Section 91 Cr.P.C. was premature, as the charges had not yet been framed, and thus dismissed the petition. (Paras 22, 23)
Issues: The primary issue was whether the petitioner had the right to seek production of documents under Section 91 Cr.P.C. before the framing of charges. (Para 17)
Ratio Decidendi: The court held that the accused cannot invoke Section 91 Cr.P.C. prior to framing charges, and the discretion to consider unrelied documents lies with the court. (Paras 18, 19)
Result: The criminal petition is dismissed.
Heard Mr. D. V. Pathy, learned counsel for the petitioner. Also heard Mr. M. Haloi, learned Standing counsel CBI.
2. By filing this petition u/s 482 Cr.P.C. read with Article 227 of the Constitution of India, the petitioner has prayed for quashing of the order dated 13/05/2024 passed by the learned Special Judge, Additional Court No. 2, CBI, Assam in Misc. (CBI) case No. 29/2023 arising out of special Case no. 02/2022, whereby the CBI court has rejected the petition filed by the petitioner u/s section 91 of Cr.P.C.
3. The allegation in the FIR in brief is that during the year 2021 one Ranjit Kumar Borah, who was then working as a Deputy Chief Electrical Engineer in N.F. Railways, while acting in pursuance of criminal conspiracy with the present petitioner who is Director of M/s Sunshine Devices Pvt. Ltd. Patna and also operating a firm under the name and style of Athak Udyog, Patna, was facilitating and extending undue favours in matters of various works like preparation of measurement books, processing of bills, early release of payments against bills related to North East Frontier Railway in lieu of demand and acceptance of illegal gratification being paid by the present petitioner. Subsequently, a charge-sheet has been submitted in the case against the accused/petitioner along with some other accused.
4. The petitioner, thereafter, filed an application u/s 91 Cr.P.C. requesting the trial court to summon production of documents which form the basis of the launch of the first information report. The petitioner made such request primarily on the grounds that there is no material or documents annexed to the First information report in which allegations were made and the same were contained only in the annexure appended thereto. There was no sanction or approval as required under mandatory requirement of Rule 419 A and 16, 17 of Indian Telegraph Act and also the requirement of post facto approval or sanction of any such order or decision permitting tapping or surveillance of mobile phones and also without considering the necessity and desirability of production of such material evidence to prevent a commencement of vexatious trial in the ends of justice and fair play. But the learned trial court merely reiterating the judicial pronouncements rendered by the Hon’ble Supreme Court without appropriate consideration thereof rejected the application u/s 91 of Cr.P.C. Hence, this criminal petition.
5. It was urged by learned counsel for the petitioner that the learned Special Judge CBI has erred in passing the order dated 13/05/2024 by rejecting the petition u/s 91 Cr.P.C. as because the surveillance order which has been relied upon can only be issued u/s 5 (2) of Indian Telegraph Act , 1885 and in compliance with the direction issued by the Hon’ble Supreme Court in PUCL vs. Union of India reported in (1997) 1 SCC 301 .
6. It is also submitted that neither there exist any documents, thereby establishing that those orders were issued by the respondents. There exist no previous statement regarding any orders, the process whereby the surveillance order had been issued or had been duly sent to the Review Committee as contemplated under Rule 419 A of Indian Telegraph Rules, 2014. Thus the documents filed along with present charge-sheet do not prove the legitimacy and therefore, the alleged electronic data is not admissible in law.
7. According to the learned counsel for the petitioner, the application u/s 91 of Cr.P.C. was filed for the purpose of conducting fair trial and the fair trial includes right of complete disclosure and the petitioner has a right to seek indulgence to bring on record the documents which are in possession of the respondents and are of starling quality as contemplated by the Hon’ble Supreme court in the case of Hardeep Singh vs. State of Punjab reported in (2014) 3 SCC 92 .
8. Learned counsel for the petitioner has further contended that the court can invoke section 91 Cr.P.C. either suo moto or on behest of some
