Kalyani Singh vs Cbi

Kalyani Singh ... Petitioner

Versus

Central Bureau of Investigation, Chandigarh ... Respondent

CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Present: Mr. R.S. Cheema, Senior Advocate with Mr. S.S. Narula, Mr. Siddarth Bhukkal, Mr. Satish Sharma, Mr. Harish Mehla, Mr. Prabhat Gupta, Advocates for the petitioner. Mr. Ravi Kamal Gupta, Spl. Public Prosecutor CBI for the respondent/CBI. Mr. Amarjeet, Advocate for the complainant.

MANJARI NEHRU KAUL, J.

CRM No.17628 of 2024 In view of the averments made in the application and in the

interest of justice, the same is allowed as prayed for, subject to all just

exceptions. The rejoinder of the petitioner to the reply filed on behalf of

the respondent/CBI along with supporting documents (Annexures P-15 to

P-18A-C) are taken on record.

CRM-M No.18316 of 2024

1. The petitioner, in the instant petition, filed under Section 482

Cr.P.C., is seeking quashing of order dated 06.04.2024 (Annexure P-2)

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passed by the Court of learned Special Judge, CBI, Chandigarh vide which

her application under Section 207 of the Cr.P.C. was dismissed.

2. It has been contended by the learned senior counsel that

documents listed at Sr.No.6(a) and 6(b) of seizure memo (D/5) annexed at

Annexure P-5 be supplied to the petitioner inter alia on the following

grounds:

(i) That the CBI has relied on seizure memo (annexed as

Annexure P-5) in both its reports filed under Section

173(2) and 173(8) of the Cr.P.C. Despite this, the CBI is

now claiming that certain documents which form part of

the seizure memo, are 'unrelied upon' documents since

they are not a part of the challan. Rather, a perusal of the

seizure memo clearly reveals that it contains ten items in

total, from Sr.No. 'a' to 'j', and the entire seizure memo

has been relied upon by the CBI in its report under

Section 173(8) Cr.P.C., without making any distinction

qua the documents, which now as per the CBI are

'unrelied upon documents'. In support, attention of this

Court has been drawn to Sr. No. 5 of the Charge Sheet,

annexed as Annexure P-2;

(ii) that this bifurcation which has been drawn for the first

time is only an excuse to deny the supply of documents

to the petitioner, even though she is legally entitled to

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the same; further the reasoning now being given by the

CBI that at Sr. No. 5 of Annexure P-2 (in the reply filed

by the CBI, i.e. chargesheet) only specifically listed

documents in the column were being relied upon, i.e.

from Sr. No.(i) to (iv), is totally contrary to the material

on record; no doubt, the CBI has listed only four

documents in this column, however, the seizure memo

clearly shows that in fact, it contains a total of ten

documents;

(iii) that the petitioner has already been provided with 08 out

of the 10 documents mentioned in the seizure memo,

which documents, are in addition to those being claimed

as 'relied upon' by the CBI in its chargesheet filed

against the accused before the learned CBI Court.

Hence, it is evident that the entire seizure memo is being

relied upon by the CBI, or else why would they have

unhesitatingly supplied the allegedly 'unrelied upon

documents' to the petitioner and the mother of the

deceased;

(iv) that no doubt, there is a statutory restriction on

supplying copies of case diaries/police file to the

accused under the Cr.P.C., however, this restriction

would not apply in the present case as the case diaries

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pertain to the initial investigation carried out by the

Chandigarh Police. Thereafter, the Chandigarh police

had no role to play as the investigation was transferred

to the CBI, who then presented the final reports under

Sections 173(2) and 173(8) Cr.P.C. In case these diaries

were supplied to the petitioner, it would not cause any

prejudice to the prosecution, as they did not pertain to

the investigation carried out by the CBI, but only to the

initial investigation carried out by the Chandigarh

Police;

(v) that while referring to the contents of paragraph 16.80 in

the untraced report (Annexure P-15) filed by the CBI,

attention of this Court has been drawn to certain lapses,

(e.g. destruction of evidence), committed by then SHO

namely Poonam Dilawari and ASP Chandigarh Police

Guriqbal Singh Sidhu, which had seriously

'handicapped' the progress of investigation, and for

which a major penalty had also been recommended

against them; thus, to ascertain whether the investigation

was botched up initially as claimed by the CBI, it could

only be possible by perusing and examining the case

diaries and police files;

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(vi) that furthermore, and pertinently, all these documents

sought for, by the petitioner, had already been supplied

to the mother of the deceased. Still further, a detailed

protest petition (Annexure P-16) was filed by the

mother/family of the deceased against the petitioner and

officials of the Chandigarh Police, which left no manner

of doubt that the mother/family of the deceased was

privy to the contents of the case diaries/police file,

including the ones mentioned at Sr. No.6(a) and 6(b) of

the seizure memo; thus, in the circumstances, without

delving into the semantics of the language of Section

207 Cr.P.C. the Court should adopt a broader

perspective to serve the interests of justice and allow the

petitioner to have access to these two crucial documents,

which would aid in fully understanding the

incriminatory evidence against her.

3. Learned Special Public Prosecutor representing the

respondent/CBI, while opposing the submissions and prayer of the learned

senior counsel for the petitioner has inter alia made the following

submissions:

(i) That the case is at the stage of consideration on charges;

while categorically asserting that documents at serial

number 6(a) and 6(b) of the seizure memo are 'unrelied

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upon documents' and reiterating that they are not part of

the challan presented before the CBI Court, coupled

with the fact that charges can only be framed after

considering the 'relied upon' documents, the petitioner

in case, still seeks supply of those documents, then the

appropriate course for the petitioner would be to file an

application under Section 91 of the Cr.P.C., at an

appropriate stage before the trial Court;

(ii) that it is categorically refuted that the CBI (Investigating

Agency) had supplied other 'unrelied upon material' to

the family of the deceased. In support, attention of this

Court has been drawn to seizure memo (Annexure P-5)

prepared by the CBI, during transfer of the investigation

from Chandigarh Police to CBI, and has been submitted

that only entries from serial number 6(c) to 6(j) are the

'relied upon' documents/material by the prosecution;

only these documents had been supplied to the

mother/family of the deceased, which already stood

supplied to the petitioner, as well;

(iii) that the arguments raised by the learned senior counsel

for the petitioner that the entire seizure memo D5

(Annexure P-5) was relied upon by the CBI, was totally

misplaced; the Investigating Agency had bifurcated the

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seizure memo into 'relied upon' documents and articles

in the Charge Sheet at Annexure 2; entries 6(a) & (b) of

the seizure memo are not 'relied upon' by the

prosecution, either in the list of 'relied upon' documents

or in the list of articles in the Chargesheet (Annexure 2),

and thus, have not been supplied either to the petitioner

or even the family of the deceased;

(iv) that even otherwise through this petition, the petitioner

is seeking access to material which she is not entitled to

under Section 172(3) of the Cr.P.C.; rather, the

petitioner is actually seeking the supply of case diary,

supervision notes, which cannot be supplied to an

accused under Sections 207 and 208 of the Cr.P.C., on

account of the embargo contained in section 172(3) of

the Cr.P.C.;

(v) that the petitioner had previously also filed successive

applications under Section 207 Cr.P.C. before the CBI

Court; ever since the filing of the first application

(Annexure R-1), the petitioner had received all relevant

material, documents, soft data and other items.

Following the orders of Hon'ble the Supreme Court

dated 26.02.2024, the petitioner was further furnished

with all the 'relied upon' documents, as well as those

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provided to the family of the deceased, including a list

of 'unrelied upon' documents on 07.03.2024. Still

further, on 21.03.2024, the public prosecutor carried out

a thorough comparison of all the documents to ensure

that the petitioner had been provided with the 'relied

upon' documents as is evident from a perusal of

Annexure P-12;

(vi) that proper and complete compliance of the orders of

Hon'ble the Supreme Court dated 26.02.2024 had also

been noticed by the Ld. CBI Court in its orders dated

22.03.2024 and 03.04.2024. Not only this, the Ld.

defence counsel had acknowledged receipt of the articles

and the documents that had been supplied to the

petitioner. It is thus, evident that the petitioner is now in

receipt of all the relevant documents and material,

including those provided to the mother/family of the

deceased, and the present petition has been filed by the

petitioner as a deliberate attempt to delay proceedings

before the trial Court

4. FINDINGS OF THE COURT:

5. I have heard learned counsel for the parties and perused the

relevant material on record.

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6. Section 207 of the Cr.P.C. stands as a cornerstone in

safeguarding the constitutional right of an accused to a fair trial. It ensures

that the accused is informed of, and supplied all material, 'relied upon', by

the prosecution, so as to prevent any surprise introduction of crucial

evidence during trial that could deprive him or her of an opportunity to

mount an effective defence. The failure to comply with the provisions of

Section 207 Cr.P.C. would severely prejudice and be detrimental to the

accused, potentially vitiating the entire trial. Recognizing its significance,

Hon'ble the Supreme Court has time and again interpreted the provisions

of Section 207 Cr.P.C. to uphold not only the statutory framework, but

also the right of an accused to a fair trial.

7. Having said that, the applicability of the provisions of section

207 Cr.P.C. is limited to supplying the accused with documents and

materials only 'relied upon' by the prosecution. In the case of 'In Re: To

Issue Certain Guidelines Regarding Inadequacies And Deficiencies In

Criminal Trials vs. The State Of Andhra Pradesh & Ors.' 2021 (10)

SCC 598, Hon'ble the Supreme Court did acknowledge situations where

an accused could be caught unawares of other potentially exculpatory

material in the possession of the prosecution. To address this, Hon'ble the

Apex Court directed that along with furnishing statements, documents and

other material objects under Sections 207 and 208 of the Cr.P.C., the

Magistrate should also ensure that a list of seized but 'unrelied upon'

materials be also provided to the accused, but, the accused could only seek

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those 'unrelied upon' documents under Section 91 of the Cr.P.C., and that

too only at an appropriate stage, during the trial, however they cannot be

furnished to the accused under Section 207 Cr.P.C. at this stage of the

trial.

8. In the instant case, Hon'ble the Supreme Court, vide order

dated 26.02.2024, ordered the CBI to supply all materials to the petitioner-

accused that had been supplied to the mother of the deceased.

9. Learned Spl. Public Prosecutor for the CBI, during the course

of arguments before this Court has made an unequivocal and categoric

statement that in compliance with the orders of Hon'ble the Supreme

Court, the petitioner had already been furnished with all the materials

'relied upon' by the prosecution, along with a list of 'unrelied documents',

and also all the documents which had been supplied to the family of the

deceased. The said fact has also been noticed by the learned CBI Court in

its order dated 21.03.2024 annexed as Annexure P-12. The learned Special

Public Prosecutor for the CBI has further explicitly asserted and stated that

the documents sought by the petitioner have not been 'relied upon' by the

prosecution, nor have they been supplied to the family of the deceased. It

has further been categorically asserted by the learned Spl. Public

Prosecutor for the CBI that the entire seizure memo D5 had not been

relied upon and had rather been segregated into 'relied upon' documents

and articles. The documents sought by the petitioner do not find

mentioned even in the list of documents and articles 'relied upon' by the

CBI in the charge sheet (Annexure 2) as well as the 'untrace report'

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(Annexure 3) filed by it, lending credence to the submissions made and

undertaking given by the learned Spl. Public Prosecutor for the CBI that

these documents have not been relied upon by the prosecution.

Furthermore, a perusal of the Annexures P-7A to P-7D reveals that only

materials/articles/documents 'relied upon' by the CBI in its 'untraced

report' had been supplied to the mother of the deceased. Therefore, the

apprehension and the contention of the learned senior counsel for the

petitioner regarding the family of the deceased having access to the

'unrelied upon' documents including the ones being sought through the

instant petition, cannot be accepted, in the absence of any supporting

evidence or material, on record.

10. It is imperative to underscore that the prayer for unfettered

right to inspect case diary entries based solely on an unsubstantiated

apprehension that the family of the deceased/mother of the deceased, has

been provided such access by the police or the Court is untenable and goes

against settled ratio of law. Granting such broad access could potentially

compromise public interest, especially when sensitive information like the

identity of the informants is recorded in the case diary. Allowing

unrestricted access to such information could endanger the safety of

informants and also discourage cooperation with law enforcement

agencies. Therefore, the restriction outlined in Sub Section (3) of Section

172 Cr.P.C. is essential to uphold the integrity of the legal processes and

safeguard public interest. However, it is well settled law that, in case,

some documents are relevant and may impact the case of an accused, even

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if not relied upon by the prosecution, recourse under Section 91 Cr.P.C.

would remain available to her/him at the appropriate stage of the trial,

which needless to emphasize has to be decided by a Court, in accordance

with law.

11. Furthermore, with respect to the prayer made by the learned

senior counsel for the petitioner for supply of case diaries/police file

maintained by the Chandigarh Police during the initial stages of

investigation, in the light of the statutory disentitlement provided in

Section 172(3) of the Cr.P.C. the said prayer is untenable at the present

stage. Although an accused may, under certain circumstances, have the

right to peruse prior statements recorded in a police officer's diary under

Section 145 or 161 of the Evidence Act, however, this right is hindered by

the constraints imposed by Section 172(3) of the Cr.P.C., and cannot thus

be availed of, by the accused at this initial stage, under Section 207 of the

Cr.P.C.

12. Consequently, this Court finds no merit in the present petition

which is accordingly dismissed.

13. Nothing contained hereinabove, shall be construed to be an

expression on the merits of the case.

[MANJARI NEHRU KAUL] JUDGE April 25, 2024 rps

Whether speaking/reasoned Yes/No Whether reportable Yes/No

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