INX Media Case- Delhi HC Reserves Order On CBI's Plea Challenging Trial Court's Order Allowing Inspection Of Documents By Accused Persons

The Delhi High Court on Friday reserved it's order on CBI's plea against 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.

Justice Mukta Gupta reserved order after reiterating that she was bound by the Supreme Court judgment which held 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.

"List will be given so that the accused knows what are the documents in possession of the agency. In case there is something relevant for him, he can approach the Court for order," Justice Mukta Gupta told CBI 

"It says you don't supply it  immediately as a document under sec. 207 CrPC because it's not a relied upon document but there will be a List B which will give the details of the documents not relied upon but are still seized by the agency so that if the accused wants, the Court can decide," she added.

Justice Gupta referred to the Supreme Court's judgment dated April 20, 2021, in its suo moto case titled In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials.

In paragraph 11 of the said case, the Supreme Court had held as follows:

"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. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. PC.3 for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. [Rule 4(i)]"

Earlier, the Court had said that whenever charge sheet is filed, the investigation agency has to prepare a list of both relied documents and un-relied documents. You will have provide the list so that the accused, if so desires, can make an application for inspection.

Anupam S Sharma appearing for the CBI said that in the present case, the investigation was still pending and that there is a chance that such documents may get tampered with.

Placing reliance on a Supreme Court Judgment, Sharma said that during investigation, the Apex Court observed that secrecy is of utmost importance.

To this, Justice Gupta responded:

"Answer me one question. If the investigating agency seizes 1000 documents and relies on 500 of them and keep the other half for themselves. May be those documents have some exculpatory material against the accused, why can't he access them?"

 "Law has just worsened. We are forgeting the basic criminal law and proceeding the way we want law to proceed which is not permissible," she added.

In view of this, the Court reserved orders by giving 4 days to CBI for submitting written submissions in the matter.

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.

"There is neither any provision in Cr.P.C. which casts a duty upon the Investigating Agency to forward to court documents on which it does not rely upon nor is there any provision in Cr.P.C. which empowers the Magistrate to allow the accused to inspect the documents which are neither filed in court nor relied upon by the prosecution and that too at the pre-trial stage." The plea states.

In view of this, the petition also submits that the right of the accused with regards to the disclosure of documents is a "limited right as codified and is the very foundation of a fair investigation and trial".

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.