At The Time Of Framing Of Charges, Accused Can Bring To Court's Notice About Relevancy Of Document Kept Back By Investigating Agency : Delhi HC

The Delhi High Court has observed that 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. Since the accused can exercise such right only if he is aware of the existence of the document, he should have the right to access and inspect the documents collected by the investigating agency.

Justice Mukta Gupta made the observation while dismissing CBI's plea challenging a Special Judge's order directing it to allow the accused persons, including former Minister P. Chidambaram, to inspect the documents kept in Malkhana room collected by the agency while investigating the INX Media Case.

Upholding the Trial Court order, the Court said that the apprehension of the CBI that document inspection by accused persons would hinder in the further investigation was wholly unwarranted.

It went ahead to observe that the Court is not barred to exercise its power to summon or rely upon the document at the stage of charge, if it is of sterling quality and has a crucial bearing on the issue of framing of charge.

"Therefore, at the time of framing of charge an accused can bring to the notice of the Court that an un- relied 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 is aware of the said document," the Court said.

Challenging the order passed by Special CBI Judge, MK Nagpal dated 5 March, the CBI had moved the Delhi High Court stating that the Special Judge had exceeded its jurisdiction in issuing directions to CBI to file or produce before the Court all the documents collected by it during the course of investigation and to observe that the accused persons are also entitled to copies of such documents irrespective of the fact that whether they are being relied upon by the CBI or not.

Justice Mukta Gupta was of the view that the issue raised in the plea was covered by the Supreme Court's decision in its suo moto case titled In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials wherein it had observed that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused.

In view of the said decision, the Court observed:

"…CBI cannot take the plea that since the Rules have not been notified as yet pursuant to the decision of the Hon'ble Supreme Court, the directions as laid down in Para 11 of the judgment whereby the draft Rules were amended, would not have the force of law till the Rules are notified."

The Court said 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.

The Court took note of the fact that the trial Court had clarified that the permission to conduct inspection was not granted for those documents in relation to which the investigation by the CBI was pending.

"Claim of learned counsel for the CBI is that the CBI at the moment cannot pre-empt which document would be necessary for the further investigation. In the present case charge sheet has already been filed and thus the claim of CBI that it is not aware which document would be relevant for further investigation is unwarranted," the Court observed at the outset.

"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 the CBI," it added.

Accordingly, the plea was dismissed.

About INX Media Case

CBI had registered an FIR dated 15th May 2017 against INX Media Pvt. Ltd., Karti Chidambaram and others for offences under sec. 120B read with sec. 420 of IPC along with sec. 8, 12(2) and 13(1)(d) of the Prevention of Corruption Act, 1988.

Since the offences find mention in the Schedule appeneded to the Prevention of Money Laundering Act, 2002, a case was also registered by the Directorate of Enforcement (DoE), Ministry of Finance, Department of Revenue, Government of India on 18th May 2017 and an investigation was therefore taken up for a possible action under PMLA.

The said FIR was registered on the allegations that Indrani Muherjea and Pratim Mukherjea, Director and COO respectively of INX Media entered into a criminal conspiracy with Karti P Chidambaram and committed illegal acts in receiving excess Foreign Direct Investment (FDI) than the amount approved by Foreign Investment Promotion Board (FIPB). Other allegation was that such unauthorized downstream investment by INX Media in INX News without the approval of FIPB, were got scuttled by Karti P. Chidambram by influencing the public servants of FIPB Unit, Department of Economic Affairs (DEA), Ministry of Finance (MoF)

It was therefore alleged that owing to the criminal conspiracy and influence of P Chidambaram and Karti Chidambaram, such officials abused their official positions and caused undue favours to INX Media due to which INX Media had paid huge amounts to some companies which Karti P Chidambaram had substantial interest in, either directly or indirectly.

The investigation revealed that for regularization of excess FDI and downstream investment by INX Media, proceeds of crime were generated on few occasions from criminal activities of the said case and the same were received by Karti P. Chidambram through some shell companies associated with him.

Furthermore, it was revealed that a fake invoice dated 26th June 2008 of Rs. 11,23,600 was raised in the name of ASCPL, a company beneficially owned by Karti Chidambaram, for providing consultancy services to INX Media. The investigation further revealed that four more fake invoices in the names of four other companies for amounts, totalling to approximately US $ 700,000 (equivalent to Rs.3.2 corers), in the month of September, 2008 were also raised on INX Media.

Case Title: CBI v. M/S INX Media Pvt Ltd. & Ors.

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