Can accused be allowed to inspect documents kept in “malkhana”: Read what Del HC said while rejecting CBI’s plea in INX Media case

Delhi High Court: Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

CBI challenged the impugned order passed by the Special Judge filed by the accused under Section 207 Criminal Procedure Code seeking supply of documents.

By the impugned order, Special Judge noted that the documents sought through these applications were broadly:

  1. Deficient documents
  2. Dim or illegible copies
  3. Incomplete or torn documents
  4. Part of documents which have been filed in Court by CBI
  5. The documents though seized or collected during investigation, but not filed in Court
  6. The documents referred to or reflected in correspondence of CBI and other authorities or in statements of witnesses

Contention of the CBI

CBI submitted that the respondent cannot seek production of the documents at this stage as any document which was required to be produced under Section 91 CrPC can be utilized by the accused at the stage of defence only to prove his innocence as held by the Supreme Court in (2005) 1 SCC 568, State of Orissa v. Debendra Nath Padhi.

Counsel for the CBI added that it is impossible for the CBI to pre-empt and segregate the documents which may be required later during investigation though not required for investigation at present. Since all documents relied upon by the CBI have been provided to the accused, no prejudice has been caused to them and their right to fair trial has also not been infringed.

The right of fair trial has to be not only from the perspective of the accused but also from the rights of the society at large.

 In the present case after the Court took cognizance and was in the process of supplying documents, applications were filed under Section 207 CrPC wherein to ensure a fair trial, the impugned order had been passed by the Special Court keeping due regard to the fact that at that stage it was deciding neither the relevancy of the unrelied documents nor whether they were of sterling quality.

It was noted that the accused were not producing any document of their own but wanting to inspect and seek documents that were in the possession of CBI and were being kept back from the Court.

At the time of framing of charge an accused can bring to the notice of the Court that an unrelied document recovered during the course of investigation and kept back by the investigating agency is relevant and has a bearing on the prosecution case only if the accused was aware of the said document.

High Court stated that the counsel for the CBI before this Court was that since the further investigation is going on, permitting the accused or their representatives to inspect the documents lying in Malkhana will hinder the investigation.

Bench noted that trial court had already clarified that the permission to conduct inspection being granted by the Court was not in respect of those documents in relation to which the investigation by the CBI was still pending.

Hence, CBI’s apprehension that inspection would hinder in further investigation was wholly unwarranted.

V.K. Sasikala v. State, (2012) 9 SCC 771  Supreme Court noted a common feature that seizure of a large number of documents takes place in the course of investigation in a criminal case and that after completion of the process of investigation and before submission of the report under Section 173 CrPC., the investigating officer is bound to apply its mind to the two sets of documents i.e. the one which support the prosecution case and the other which support the accused, however, it is not impossible to visualise a situation where the documents favouring the accused are not forwarded to the Court, even though the prayer in the said case was in relation to the documents forwarded to the Court but not relied by the prosecution.

Further, Clause 12.32 of the CBI (Crime) Manual 2020 also lays down the procedure of inspection of documents kept in the Malkhana on Court order. Thus Clause 12.32 of the CBI (Crime) Manual 2020 recognizes the right of the accused to carry out inspection as per the procedure laid down in the manual of CBI.

Concluding the matter, Court held that in view of the above discussion and the Supreme Court decision, this Court found no infirmity in the impugned order passed by the Special Judge.

Hence the petition was dismissed. [CBI v. Inx Media Pvt. Ltd., 2021 SCC OnLine Del 4932, decided on 10-11-2021]


Advocates before the Court:

For the Petitioner:

Mr Anupam S Sharma, SPP for CBI with Ms Sudha Rani Ralangi, Director of Prosecution-CBI, Mr Prakarsh Airan and Ms Harpreet Kalsi, Advs.

For the Respondents:

Mr. Shailesh Poria, Adv. for R-1. Mr. Sidharth Luthra, Sr. Adv. with Mr. Akshat Gupta, Mr. Pankaj Singhal and Ms. Shubhangi Jain, Advs. for R-3.

Mr. Pramod Kumar Dubey, Sr. Adv. with Mr. Nitin Saluja, Mr. Vikalp Sharma and Mr. Akshat Sharma, Advs. for R-4.

Mr. Vikas Pathak, Adv. for R-7.

Mr. Kumar Vaibhaw, Mr. Himanshu Gupta, Mr. Mohd. Ashaad, Advs. for R-8.

Mr. Aditya Wadhwa, Mr. Sougat Mishra and Mr. Ayush Shrivastava, Advs. for R-9.

Mr. Sidharth Aggarwal, Sr. Adv. with Mr. Varaz Maqbool, Mr. Abhinav Sekhri, Mr. Chandan Kumar and Mr. Chaitanya Sundariyal, Advs. for R-10.

Mr. Vikas Arora and Ms. Radhika Arora, Advs. for R-11.

Mr. Sandeep Kapur, Mr. Mridul Yadav, Mr. Aashneet Singh Anand, Advs. for R-13.

Mr. N. Hariharan, Sr. Adv. with Mr. Arshdeep Singh Khurana, Mr.Ayush Aggarwal, Mr.Siddharth S. Yadav, Mr.Varun Deswal, Ms. Akriti G. Mittal, Mr.Harsh Mittal, Advs. for R- 14.

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