Kalyani Singh vs Central Bureau Of Investigation

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-8463-2023 (O&M) Date of Decision:- 8.5.2023

Kalyani Singh ...................Petitioner

Versus

Central Bureau of Investigation .................Respondent

CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL

Present: Mr. Sartej Singh Narula, Mr. Harish Mehla and Mr. Sandeep Sharma, Advocates for the petitioner.

Mr. Rajeev Anand, Advocate for the respondent - CBI assisted by Inspector Balwinder Singh. * * * * *

GURVINDER SINGH GILL, J.

1. The petitioner, in addition to assailing the commitment order dated 4.2.2023

(Annexure P-1), assails the following four orders passed by learned Special

Judicial Magistrate, CBI, Chandigarh, all of which pertain to furnishing of

copies of 'relied-upon' documents as well as 'un-relied' documents, in

compliance of provisions of Section 207 Cr.P.C. :

(i) Order dated 4.2.2023 (Annexure P-2) vide which an application dated 20.1.2023 (Annexure P-13), filed by the petitioner to unseal the record which had earlier been sealed vide order dated 27.7.2022 (Annexure P-22) and to supply copy of the same, has been declined;

(ii) order dated 30.1.2023 (Annexure P-3) vide which an application dated 20.1.2023 (Annexure P-14), moved by petitioner seeking copies of the evidence collected by the Chandigarh Police during the course of investigation of FIR No. 374 dated 21.9.2015, Police Station Sector 26,

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Chandigarh, which was lodged prior to handing over the matter to the CBI, has been dismissed;

(iii) order dated 16.12.2022 (Annexure P-4) vide which an application dated 15.10.2022 (Annexure P-15), filed by the petitioner seeking copies of documents which were found deficient or were illegible which were part of the supplementary challan filed under section 173(8) Cr.PC, has been partly declined inasmuch as legible copies of "relied upon" documents only were directed to be furnished to petitioner; the Court had, however, directed that cloned copy of electronic evidence be furnished;

(iv) order dated 22.12.2022 (Annexure P-5) whereby the CBI Court clarified that aforesaid order dated 16.12.2022 is be read so as to mean that a soft copy of 'relied upon' data only is to be supplied to accused.

2. The petitioner faces allegations of having murdered Sukmanpreet Singh @

Sippy Sidhu on 20.9.2015. The matter was initially investigated by the

Chandigarh Police but subsequently the investigation was transferred to CBI

vide order dated 15.1.2016, passed by Administrator, Chandigarh. During

the course of investigation, the Chandigarh Police as well as CBI police

collected evidence in the shape of statements of witnesses, documents,

digital data (from mobile phone and laptop of deceased). Initially, a report in

terms of section 173(2) Cr.P.C. in the shape of an 'untraced' report dated

7.12.2020 (Annexure P-9) was presented in the Court of Special Judicial

Magistrate, Chandigarh, by the CBI on 7.12.2020 but the Court did not treat

the same as untraced and vide order dated 14.12.2020, while granting

permission to further investigate the matter, directed CBI to file fresh report

upon conclusion. A protest petition had also been filed by de-facto

complainant i.e. the mother of deceased.

3. Thereafter, an application was moved by the petitioner seeking issuance of a

direction to the CBI to supply all the documents relied upon by the CBI KAMAL KUMAR 2023.05.08 14:30while submitting 'untraced report' dated 7.12.2020 including statements of I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) (3) 2023:PHHC:065516

all witnesses recorded under Section 161 Cr.P.C. as well as electronic data.

The trial Court, however, did not accede to the said request, while observing

that investigation was still underway and that it was only upon conclusion of

investigation and filing of report under Section 173 Cr.P.C. that copies of

such documents could be furnished to the petitioner/accused. The relevant

extract from said order dated 22.6.2022 (Annexure P-21) is reproduced

herein-under:-

" However, as final report under Section 173 Cr.P.C. is yet to be filed by the CBI after completion of its investigation, CBI cannot, at this stage, be directed to hand over the statement of witnesses so recorded under Section 161 Cr.P.C. as well as electronic data to the applicant-accused Kalyani Singh as in view of Section 207 Cr.P.C., accused is entitled to the entire record so relied upon by the prosecution only after filing of final report under Section 173 Cr.P.C. Thus, as admittedly the applicant has already received the copy of untrace report alongwith list of witnesses, concerned IO is directed to supply the copy of list of documents and list of articles so attached with the final report, so filed under Section 173 Cr.P.C. in the Court as per zimni order dated 08.12.2020, to the applicant. Application in hand stands disposed of accordingly."

4. The petitioner, thereafter, moved another application before the Magistrate

seeking compliance of provisions of Section 173(5) Cr.P.C. so as to direct

CBI to place on record all the documents, record, statements under section

161 Cr.P.C., as were relied upon by the investigating agency at the stage of

filing 'untraced report' under Section 173(2) Cr.P.C. The said application

was opposed by the CBI on the ground that a similar application had already

been disposed of vide order dated 22.6.2022 and that since investigation was

still continuing, the documents in question could not be furnished till the

final report is again presented. Although, the said application was dismissed KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) (4) 2023:PHHC:065516

but the learned Magistrate ordered for sealing of the record which had been

collected by the prosecution prior to presentation of the 'untraced' report.

The operative portion of the said order dated 27.7.2022 (Annexure P-22)

reads as follows :-

"Thus, in order to remove the apprehension of prejudice to the applicant/accused Kalyani Singh and in view of apprehension of prosecution, Investigating Agency (CBI) is directed to file same statements of witnesses recorded under Section 161 Cr.P.C. and documents as mentioned in final report under Section 173 Cr.P.C. dated 07.12.2020, in a sealed cover in the Court along with separate affidavit of Investigating Officer that he has submitted the same statements and documents as mentioned in final report dated 07.12.2020 in the sealed cover. The question of opening the sealed cover and to make the documents contained in sealed cover as part of the record, will be considered after filing of the fresh final report under Section 173 Cr.P.C., which will be filed after completion of ongoing investigation."

5. The matter was further investigated by CBI, during the course of which, the

petitioner was arrested on 15.6.2022. Upon conclusion of investigation, a

supplementary final report (Annexure P-11) under Section 173(8) Cr.P.C.

was filed against the petitioner on 12.9.2022. The documents relied upon by

the prosecution/CBI were furnished to the petitioner. However, the petitioner

being aggrieved by not having been supplied copies of all the

documents/evidence collected during investigation by both the agencies

including 'unrelied documents' moved applications before the Special

Judicial Magistrate, Chandigarh which were dismissed vide impugned orders

dated 4.2.2023, 30.1.2023, 16.12.2022 and 22.12.2022 (Annexures P-2 to P-

5) which have been assailed by petitioner in the present case.

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6. The gist of the four impugned orders is stated herein-under, in chronological

order :-

Gist of Order dated 16.12.2022 (Annexure P-4) :

After the CBI presented supplementary challan under Section 173(8) Cr.P.C.

against the petitioner on 12.9.2022, the petitioner moved an application dated

15.10.2022 (Annexure P-15) praying therein that copies of the deficient

documents and illegible documents be furnished to her. It was stated

specifically that the copies of the statements/documents/records, the details

of which have been mentioned therein in Para 3 of the application be

supplied. The learned Special Judicial Magistrate, Chandigarh, vide order

dated 16.12.2022 (Annexure P-4) disposed off the said application wherein it

is held that the petitioner was entitled to copies of only relied upon

documents and the cloned copies of electronic evidence. The relevant extract

from the said order dated 16.12.2022 (Annexure P-4) is reproduced herein-

under :-

"In view of the discussion made above, applicant/accused is held entitled only to legible copy of relied upon documents and cloned copy of electronic evidence contained in Articles, whereas her request to provide remaining documents/data is hereby declined. Resultantly, present application is accordingly disposed of, with direction to Investigating Officer to make necessary arrangement, for the compliance of this order."

Gist of order dated 22.12.2022 (Annexure P-5) :

The said order was passed by the learned Special Judicial Magistrate, CBI

Chandigarh pursuant to a request made on behalf of the CBI to the effect that

in case cloned copy of the requisite data is furnished, so as to comply with

order dated 16.12.2022, the same would result in furnishing irrelevant data as KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) (6) 2023:PHHC:065516

well whereas the accused was entitled to be supplied relied upon data only

which was the essence of order dated 16.12.2022. The trial Court accepted

the said request while holding as under :-

"After hearing contentions raised by both the parties, this Court is of the considered view that if cloned copy of any hard disk, pen drive, DVD and CD, containing relied upon as well as other data, is given to accused, then it will be against the letter and spirit of order dated 16.12.2022, vide which accused was held entitled only to reliable material. Now, under the pretext of cloned copy of relied upon data, accused cannot once again raise her demand of entire data. This Court is well conscious of the fact that as per order dated 16.12.2022, cloned copy was ordered to be supplied, but in clear terms, demand of accused to supply remaining data was declined. The order dated 16.12.2022 is to be read in entirety. Even otherwise also, a specific rider was put in the order itself that only relied upon data will be supplied. Hence, request of accused that she be provided cloned copy of relied upon data is hereby declined. However, it is clarified that soft copy of relied upon data will be supplied to the accused as the main purpose is to ensure the compliance of provision contained under Section 207 Cr.P.C."

Gist of order dated 30.1.2023 (Annexure P-3)

The petitioner moved an application dated 20.1.2023 (Annexure P-14) before

the Special Judicial Magistrate, CBI, Chandigarh seeking issuance of a

direction to CBI to supply copies of the evidence which had been collected

by the Chandigarh Police during the course of investigation of the case

before the investigation of the same was handed over to CBI. The learned

Magistrate, upon considering the said application dismissed the same vide

order dated 30.1.2023 (Annexure P-3) while observing that the petitioner

will get an opportunity to cross-examine all the witnesses, as may be

KAMAL KUMAR examined by the prosecution and that the applicant/accused/petitioner, in any 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) (7) 2023:PHHC:065516

case, has a right to seek production of any document/Article during the

course of trial in accordance with Section 91 Cr.P.C. in case any such

document comes to the notice of the petitioner and that such exercise may be

undertaken at appropriate stage. The concluding paragraph of said order

dated 30.1.2023 (Annexure P-3) is reproduced herein-under :-

" At the cost of repetition, it is reiterated that the statements of above named witnesses recorded under Section 161 Cr.P.C. have already been supplied to applicant/accused, in compliance of provision contained under Section 207 Cr.P.C. Needless to mention here that during trial, applicant/accused will have an opportunity to cross examine these witnesses, who also find mention in the statements of PW-64 Inspector Amanjot Singh, PW-69 Inspector Punam Dilawari and PW-70 Inspector Ram Rattan Sharma. Furthermore, applicant/accused has a right to seek production of any document/Article during the course of trial in accordance with Section 91 Cr.P.C. if such document/Article comes to the notice of the applicant/accused, in order to enable her to defend herself. Such exercise may be undertaken by applicant/accused at appropriate stage before Ld. Trial Court."

Gist of order dated 4.2.2023 (Annexure P-2)

Another application an application dated 20.1.2023 (Annexure P-13), had

been filed by the petitioner praying therein for unsealing the record which

had earlier been sealed vide order dated 27.7.2002 (Annexure P-22) and to

supply copy of the same. The said application was, however, dismissed while

observing that the petitioner can move appropriate application before the trial

Court and that no prejudice can be said to have been caused to the petitioner

as trial is yet to commence. The concluding paragraph of said order dated

4.2.2023 (Annexure P-2) reads as under :-

" ...........Even otherwise, at this stage, due to non supply of KAMAL KUMAR 2023.05.08 14:30 documents/Statements of witnesses recorded u/s 161 of Cr.P.C and Articles I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) (8) 2023:PHHC:065516

to applicant/accused, no prejudice can be said to be caused to her as trial is yet to be commenced. Needless to mention here that apprehension of any possible prejudice to applicant/accused has already been removed by keeping the entire record forming part of Untrace report dated 07.12.2020 in a sealed cover, which is under the custody of Court. Moreso, it is misconceived averment that applicant/accused is entitled to copy of documents, statement of witnesses recorded u/s 161 Cr.P.C., electronic data/Articles, in terms of order dated 22.06.2022 passed by Sh. Randeep Kumar, Ld. Duty/JMIC, Chandigarh and order dated 27.07.2022 passed by Undersigned. Both orders have been perused, which speaks otherwise. So far as the case law relied upon by Ld. Counsel for applicant/accused is concerned, same does not apply to the different facts and circumstances of the present case."

7. The learned counsel representing the petitioner submitted that although

during the course of investigation of the present case, the investigating

agency had taken into possession a large number of documents but it has

chosen to file only those documents alongwith supplementary chargesheet

(Annexure P-11), which suit the case of prosecution and has conveniently

withheld the documents in favour of accused. It has been submitted that

some of such documents which have not been filed alongwith said

supplementary challan (Annexure P-11) could prove innocence of the

accused.

7.1 The learned counsel for the petitioner submits that it is an indefeasible right

of the petitioner to be supplied with all the relevant documents in possession

of the investigating agency, which may even include 'unrelied documents'

and that the same not having been furnished, the petitioner stands seriously

prejudiced.

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7.2 The learned counsel has next submitted that the prosecution for reasons best

known to it has chosen to withhold the documents collected by the

Chandigarh Police, some of which were part of the untraced report filed by

the CBI initially on 7.12.2020, though the said untraced report cannot be

taken off the record and would always remain tagged with the supplementary

report filed under provisions of Section 173(8) Cr.P.C. on 12.9.2022,

particularly when the application for merging both the reports was disposed

off by the Special Judicial Magistrate, Chandigarh by ordering that the

'untraced' report be tagged with the supplementary challan at the time of

committing the case to the Special Judge, CBI.

7.3 The learned counsel has next submitted that in the present case the petitioner

has not been furnished with complete digital data i.e. the complete electronic

record as was found stored in the i-Phone (mobile phone) of the deceased

and in his laptop and that it is only copy of the selective parts which suits the

prosecution which have been furnished and the parts which would have

demolished the case of the prosecution have been withheld.

7.4 It has been submitted that while previously, as of practice all over India, the

investigating agencies/prosecution had been furnishing only such documents

which were relied upon by the prosecution in compliance of provisions of

Section 207 Cr.P.C. leaving it to the accused to procure and prove such

documents at a later stage but Hon'ble Supreme Court, taking note of such

practice, prejudicial to the rights of accused had issued directions to frame

rules for enabling accused to get copies of even 'unrelied' documents. The

learned counsel pressed into service 2021(10) SCC 598, In Re: To Issue

Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 10 ) 2023:PHHC:065516

Trials Vs. The State of Andhra Pradesh & Others, wherein the Hon'ble

Supreme Court, realising the aforesaid flaw in procedure has approved Draft

Rules 2021, pertaining to certain procedural aspects of trial including

providing copies of "un-relied" documents to accused and directed all the

High Courts to amend the existing rules accordingly. It has been submitted

that despite this Court having framed rules and having carried out

amendments in "Punjab and Haryana High Court Rules and Orders", which

were duly notified on 10.12.2021, the trial Court still chose not to provide

such documents to petitioner, resulting in prejudice to petitioner inasmuch as

she will be unable to effectively oppose the framing of charges in the

absence of relevant documents.

7.5 The learned counsel has, thus, submitted that the impugned orders dismissing

his applications be set aside and the accused be provided all the documents

prayed for including 'un-relied' documents and that the matter regarding

framing of charges be considered only after such documents are furnished to

petitioner.

8. Opposing the petition, the learned State counsel has submitted that the

petitioner has been furnished with all such documents as have been relied

upon by the prosecution in the supplementary charge-sheet filed under

provisions of Section 173(8) Cr.P.C. and that the accused shall be provided

opportunity to lead evidence to establish her innocence at the stage of

recording defence evidence.

8.1 It has been submitted by learned State counsel that in compliance of the rules

framed by this Court pursuant to directions issued by Hon'ble Supreme KAMAL KUMAR 2023.05.08 14:30Court, the petitioner has been furnished with a list of 'unrelied upon' I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 11 ) 2023:PHHC:065516

documents and that in case the petitioner desires to obtain any such

document out of the said list, he may move an appropriate application in

terms of Section 91 Cr.P.C. at appropriate stage during the trial and that as

such, it cannot be said that the rights of the petitioner has been defeated in

any manner. The learned State counsel, while pointing out that as on date

even the charges have not even been framed, the trial can not be said to have

commenced and thus, there is no occasion for demanding or supplying such

documents to the petitioner.

8.2 The learned State counsel has next submitted that as far as the contention of

the petitioner for supplying complete cloned copy of the data as found stored

in i-Phone and laptop of the deceased is concerned, the said record i.e. entire

data stored in the said devices cannot be said to be relevant to the case and

majority of it would be in the nature of personal data and as such, the

petitioner cannot stake her claim on the entire data found stored in the said

devices and on account of which she has been furnished with the relevant

data only out of the data retrieved from the said two devices.

8.3 The learned State counsel has submitted that in any case even provisions of

Sections 173(6) and 207(iii) Cr.P.C. and its provisos, vest a right with

prosecution to exclude any part of the statement of any witness or document.

The learned State counsel further submitted that even in cases of a record

which is voluminous, the Magistrate can direct that the accused would be

allowed only to inspect the record and may not be furnished with the entire

record and which would clearly show that in fit cases exceptions can be

drawn as have been drawn in the present case.

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document

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8.4 The learned State counsel has further submitted that the data stored in the

two devices could include some information pertaining to passwords of

various bank accounts, software accounts, income tax information etc. which

the family of the deceased would not like to share with anybody and in any

case would be irrelevant for the purpose of the case and thus, the entire data

cannot be shared with petitioner, being personal information or being

irrelevant. A prayer has, thus, been made for dismissal of the petition.

9. This Court has considered rival submissions addressed before this Court. The

controversy involved and the contentions put forth would require the

following question to be addressed:

(i) Whether an accused is entitled to copies of 'un-relied' documents/evidence which may have been collected by the investigating agency during the course of investigation but does not intend to rely upon the same during the course of trial and are thus, not part of the report under Section 173 Cr.P.C.?

(ii) In case the accused is entitled to copies of such 'un-relied' documents/evidence, then at what stage can he be provided with such documents/evidence? In other words, can the accused ask for such 'un-

relied' documents/evidence immediately upon presentation of challan i.e. before the charges are framed or as to whether he can exercise such right only after framing of charges?

(iii) Whether the accused is entitled to be furnished with copies of statements/documents/evidence collected by the first investigating agency i.e. before the investigation is handed over to another investigating agency, towards compliance of section 207 Cr.P.C.?

(iv) In a case where the 'relied upon' document/evidence is in digital form (electronic data) stored in a device/storage device wherein other data is also stored which is 'un-relied' document then as to whether the accused would be entitled to a copy of the entire stored data in such device/storage device or to only selective data?

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10. Each of the above framed question is being discussed individually herein

under:

11. First Question :

(i) Whether an accused is entitled to copies of 'un-relied' documents/evidence which may have been collected by the investigating agency during the course of investigation but does not intend to rely upon the same during the course of trial and are thus, not part of the report under Section 173 Cr.P.C.?

Under the scheme of the Code, upon completion of investigation by the

police, a final report shall be prepared by the police which is to be forwarded

to Magistrate concerned, accompanied by all documents on which the

prosecution proposes to rely and the statements recorded under section 161

Cr.P.C. of all the persons whom the prosecution proposes to examine as its

witnesses. The said procedure is prescribed in section 173 Cr.P.C. Section

207 Cr.PC, further provides that the Magistrate shall without delay furnish all

such documents i.e a complete copy of report filed by police in terms of

section 173 Cr.P.C. alongwith all statements and documents to the accused.

The relevant extracts read as under:

"173. Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

1A. x x x

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating ....... ...... .... ........

(3) x x x (4) x x x

(5) When such report is in respect of a case to which section 170 applies, the

police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

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(6) x x x (7) x x x (8) x x x

207. Supply to the accused of copy of police report and other documents. - In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of post, a copy of each of the following:-

(i) the police report; (ii) the first information report recorded under section 154;

(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for exclusion has been made by the police officer under sub-section (6) of section 173;

(iv) x x x (v) x x x (emphasis supplied)

12. One need not go far to appreciate that the idea underlying the aforesaid

provisions is that the accused is duly made aware as to what case he has to

meet and as to what is the evidence relied upon by prosecution to

substantiate allegations against the accused. The accused is not to be taken

by surprise at the stage of recording prosecution evidence and is expected to

know beforehand about the evidence proposed to be brought against him by

prosecution so that he is prepared in advance to defend himself. Such

defence would include submissions to be made at the stage of considering

framing of charges.

13. While the scheme of Cr.P.C., does specifically provide for an opportunity to

accused to produce evidence/documents in his defence to establish his

innocence at the stage of recording defence evidence, but in appropriate

cases, if permitted by Court, the accused, at the stage of recording

prosecution evidence, may confront such witness with documents during

cross-examination, subject to admissibility of such document. However, one

can visualize certain cases where investigating agency during course of

investigation would have laid its hands on some evidence which could be

KAMAL KUMAR 2023.05.08 14:30 suggestive of innocence of accused but more often than not, the prosecution I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 15 ) 2023:PHHC:065516

in its zeal to secure conviction would not chose to make such

documents/evidence a part of report filed under section 173 Cr.P.C. and in

which case the accused, who in some case would be in custody, is left on his

own to collect evidence to be produced in Court and which would mean

filing an application and its adjudication by Court and passing of order, when

infact such evidence/document is already in possession of prosecution. While

the documents annexed with report filed under section 173 Cr.P.C. are

generally referred to as 'relied upon documents', the remaining documents

though collected during investigation by police but not brought forth with

report under section 173 Cr.PC. are generally referred to as 'un-relied'

documents'.

14. Realising the aforesaid shortcoming in procedure, Hon'ble Supreme Court

in 2021(10) SCC 598, In Re: To Issue Certain Guidelines Regarding

Inadequacies and Deficiencies in Criminal Trials Vs. The State of Andhra

Pradesh & Others, issued certain directions to remedial effect. Para 11 of

said judgement reads as follow:

"11.The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion 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. 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. 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)]"

(emphasis supplied) KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 16 ) 2023:PHHC:065516

15. Hon'ble Supreme Court, in aforesaid judgement, further issued directions to

all the High Courts to suitably amend the relevant rules. Pursuant to

aforesaid directions, our High Court has carried out necessary changes in

'Punjab and Haryana High Court Rules and Orders, Volume III' vide

notification dated notification no. 40/Rules/II.D4 dated 10 th December, 2021.

The amended Rule 6, Part-D, Chapter 1 of Volume III of said rules reads as

follows:

Rule 6, Volume-III Chapter-1 Part-D, Punjab and Haryana High Rules and Orders ( substituted vide C.S. no. 40 Rules/II.D4 dated 10.12.2021.) PART D PROCEDURE IN ENQUIRIES AND TRIALS BY MAGISTRATES

"6. Warrant case on Police report - Police to furnish copies to accused before the trial commences:-

In a warrant-case (Chapter XIX of the Code of Criminal Procedure, 1973) the procedure would now depend on whether the case has been instituted on a police report or otherwise. Section 238 to 243 of Code of Criminal Procedure, 1973 govern the procedure in warrant cases instituted on police reports. When the accused appears or is brought before the magistrate, the magistrate should, at the commencement of the trial, satisfy himself that he has complied with the provisions of Section 207 Cr.P.C. Further, every accused should be supplied with statements of witness recorded under Sections 161 and 164 Cr.P.C and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer in accordance with Sections 207 and 208 Cr.P.C.

Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the Investigating Officer."

(emphasis supplied)

16. The emphasized portion shows the significant changes made in above

substituted Rule 6 which provides for not just copies of documents and

statements relied upon by prosecution but also a list of all the documents

including documents not proposed to be relied upon by prosecution.

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17. The aforesaid judgment and the rules framed thereunder clearly show that

while the investigating agency may not furnish all these documents in the

first instance to the accused alongwith report under Section 173 Cr.P.C. but it

cannot be said that he is dis-entitled for the same. The prosecution is

required to file a list on 'un-relied' documents along with the report under

Section 173 Cr.P.C. and it is then for the accused to decide as to which of

those 'un-relied documents' are required by him. Once the accused moves an

application for supply of such documents, the Magistrate would be obliged to

furnish copies of the same to the accused. It is only in exceptional cases that

instead of providing copy of any document, the accused may be permitted to

inspection only of such record. The said exception to the general rule shall be

discussed while discussing "Question no. 4". The first question stands

answered accordingly to the effect that an accused is entitled to ask for

supply of 'un-relied' documents and that the Magistrate would be obliged to

furnish copies of the same unless specific case for exclusion is made out.

18. Second Question :

(ii) In case the accused is entitled to copies of such 'un-relied' documents/evidence', then at what stage can he be provided with such documents/evidence? In other words, can the accused ask for such 'un-

relied' documents/evidence immediately upon presentation of challan i.e. before the charges are framed or as to whether he can exercise such right only after framing of charges?

As already held above an accused against whom report under section 173

Cr.P.C. has been presented is entitled to copies of 'unrelied upon documents'

though the prosecution is not obliged to furnish these documents when

report under section 173 Cr.P.C. is presented and the only obligation cast

upon the prosecution, as per the rules framed by this Court pursuant to

directions of Hon'ble Supreme Court, is that apart from supplying copies of KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 18 ) 2023:PHHC:065516

'relied upon documents', a List of 'un-relied' documents shall be furnished to

the accused at the time of presentation of challan. It is thereafter, that the

accused may make an application to the trial Court for furnishing all or any

of such 'un-relied' documents, as mentioned in the list of 'un-relied'

documents and which shall be furnished to the accused.

19. The question as regards the stage when an accused may exercise such right

has to be examined in light of the object for which this right has been vested

in an accused. The Hon'ble Supreme Court in Guidelines Regarding

Inadequacies and Deficiencies's case (supra) highlighted the necessity of

such right while observing that the material which is withheld by prosecution

may be such which could be exculpatory in nature, or absolve or help the

accused.

20. While, it is trite law that an accused builds his defence not only by leading

defence evidence but even while cross-examining the prosecution witness

but there could even be a situation that he could come out clean on the basis

of the evidence collected by the police itself. But the same is possible only if

such evidence/document recovered during the course of investigation is not

held back by the investigating agency and the accused is given an access to

such document/evidence. There could be a situation where the

record/evidence collected by police during investigation but not relied upon

by prosecution may include some document/evidence to explain the

allegations levelled against him on the basis of which he may be able to

establish his innocence. Say, in a case of some embezzlement or

misappropriation or cheating of some amount, the accused may be able to

show some ledger entry in one of the ledgers seized by police, but not a

KAMAL KUMAR 2023.05.08 14:30'relied upon document', which reflects that the allegedly misappropriated I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 19 ) 2023:PHHC:065516

amount had been paid back. In such a case, if accused is deprived of

opportunity of drawing the attention of the Court to evidence of such sterling

quality at initial stage when Court is to consider framing of charges, he

certainly would stand prejudiced inasmuch as such accused once charged

will have to undergo the ordeal of trial to establish his innocence on basis of

such document. Once charges are framed by Court, the trial has to proceed to

conduct a full-fledged trial and the case would end only upon conclusion of

trial as there is no intervening stage for discharge. It will result in a futile

exercise of holding an agonising trial and ultimately acquitting accused on

the basis of same very evidence which had been withheld earlier and which

the accused, in any case, would be entitled to produce at the stage of

recording defence evidence.

21. Section 229 Cr.PC does provide the accused with an opportunity to convince

the Court that he is innocent when the Court has to consider the question

whether to frame charges against the accused or not. The accused can

effectively put up his case only if he has access to the documents upon which

the case of prosecution is based and also documents which could prove his

innocence but are a part of 'unrelied' documents.

22. If the right of an accused to get copies of 'unrelied upon documents' has been

recognised, there would be no rationale in deferring supply of such

documents. Access to such documents at initial stage i.e immediately after

presentation of report under Section 173 Cr.P.C. should not be denied solely

on the ground that charges are yet to be framed or that trial has not

commenced.

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document

CRM-M-8463-2023 (O&M) ( 20 ) 2023:PHHC:065516

23. In other words, the accused would stand seriously prejudiced for want of

such evidence at the initial stage when framing of charges is to be

considered. On the other hand, the prosecution cannot claim to be prejudiced

on account of supply of such documents at the very outset, in case asked for.

The second Question is answered accordingly to the effect that an accused

can apply for and be furnished copies of 'unrelied' documents immediately

after presentation of challan before framing of charges.

24. Third Question :

(iii) Whether the accused is entitled to be furnished with copies of statements/documents/evidence collected by the first investigating agency i.e. before the investigation is handed over to another investigating agency, towards compliance of section 207 Cr.P.C.?

Whenever any offence is reported to have been committed, it is the police

officers assigned to the police station within whose territorial jurisdiction the

offence has been committed, who would investigate the case. The State for

certain reasons, at any point of time, may consider handing over of

investigation to any other agency including a central agency which has

acquired specialisation in such cases. Such a direction may even be issued

by High Court or Supreme Court in exercise of powers under Article 32 or

226 of the Constitution of India. The instant case is also one such case where

the matter was initially investigated by the Chandigarh Police but

subsequently the investigation was transferred to CBI vide order dated

15.1.2016, passed by Administrator Chandigarh.

25. Both the investigating agencies had recorded statements of witnesses under

Section 161 Cr.P.C., and also collected other evidence during investigation.

Initially a report in terms of section 173(2) Cr.P.C. in the shape of an KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 21 ) 2023:PHHC:065516

'untraced report' dated 7.12.2020 (Annexure P-9) was presented in the Court

of Magistrate by the CBI on 7.12.2020 but the Court did not treat the same as

untraced and CBI was directed to further investigate the matter. Subsequently

upon further investigation, supplementary challan was presented by the CBI

against the petitioner on 12.9.2022. It may here be mentioned that upon an

application made by the petitioner for merging both the challans, the trial

Court directed that the 'untraced report' be tagged with the supplementary

report. The petitioner moved two applications dated 20.1.2023 (Annexures

P-13 and P-14) seeking supply of documents collected by Chandigarh Police

but both the said applications were dismissed vide orders dated 4.2.2023 and

30.1.2023 (Annexures P-2 and P-3). An extract from order Annexure P-3 is

reproduced herein-under:

" .............Needless to mention here that during trial, applicant/accused will have an opportunity to cross examine these witnesses, who also find mention in the statements of PW-64 Inspector Amanjot Singh, PW-69 Inspector Punam Dilawari and PW- 70 Inspector Ram Rattan Sharma. Furthermore, applicant/accused has a right to seek production of any document/Article during the course of trial in accordance with Section 91 Cr.P.C. if such document/Article comes to the notice of the applicant/accused, in order to enable her to defend herself. Such exercise may be undertaken by applicant/accused at appropriate stage before Ld. Trial Court."

(emphasis supplied)

26. The investigation having concluded and a supplementary report having been

filed by CBI against the petitioner, the investigation conducted initially by

the Chandigarh police would form part of record and cannot be segregated.

While some of the said documents, are stated to be part of the documents

which are lying sealed pursuant to order dated 27.7.2022 (Annexure P-22),

KAMAL KUMAR 2023.05.08 14:30 some of them are stated to be with CBI, being 'un-relied' documents'. Said I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 22 ) 2023:PHHC:065516

record includes statements of some witnesses recorded under Section 161

Cr.PC., whose statements have also been recorded by CBI. Section 207(iii)

Cr.P.C. clearly mandates that statements of witnesses recorded under section

161 Cr.P.C., whom the prosecution proposes to examine as witnesses, are to

supplied to accused. Section 207(iii) Cr.P.C. is reproduced herein under :

207. Supply to the accused of copy of police report and other documents. -

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of post, a copy of each of the following:-

(i) x x x; (ii) x x x; (iii) the statements recorded under sub-section (3) of section 161 of all persons whom the

prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for exclusion has been made by the police officer under sub-section (6) of section 173;

(iv) x x x (v) x x x

27. Hon'ble Supreme Court in AIR 1964 (SC) 286 Noor Khan versus State of

Rajasthan while interpreting the purpose of Sections 162, 173(4) and 207(iii)

Cr.P.C. held that the object of the said provision was to enable the accused to

obtain a clear picture of the case against him before commencement of

enquiry so that he may utilize such statement for cross-examining the

witnesses to establish his defence. The relevant extract is reproduced herein-

under:-

"15. The object of Sections 162, 173 (4) and 207A(3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilise those statements for cross-examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony.

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 23 ) 2023:PHHC:065516

28. Confrontation of a witness during his cross-examination with his previous

statements which may be contradictory is the most lethal weapon in the

armoury of defence counsel and the accused under no circumstances can be

deprived of the same by not supplying him all the previous statements as

may have been recorded during investigation. Hon'ble Supreme Court in

Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, while dealing with a similar

proposition, wherein also there two reports under section 173 Cr.PC.,

framed the following question:

"Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short "the Code"), the trial court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a court? If so, to what effect?"

29. Referring extensively to case-law, the aforesaid question was answered in following manner:

"52. In light of the above discussion, we answer the questions formulated at the opening of this judgment as follows.

53. The court of competent jurisdiction is duty-bound to consider all reports, entire records and documents submitted therewith by the investigating agency as its report in terms of Section 173(2) of the Code. This rule is subject to only the following exceptions:

(a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof;

(b) Where an order is passed by the higher courts in exercise of its extraordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on "fresh investigation" or "reinvestigation" or any part of it be excluded, struck off the court record and be treated as non-

est.

30. The Supreme Court, thus, having held that documents/evidence collected by

both the investigating agencies has to be taken into account unless held non-

est by a higher Court, then it goes without saying that copies thereof are KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 24 ) 2023:PHHC:065516

required to be furnished to accused. In a recent judgment, in somewhat

similar circumstances, delivered by Hon'ble Karnataka High Court in 2023

AIR (Karn.) 123 Muzammil Pasha versus National Investigating Agency

wherein the matter was initially investigated by the State police but was later

on transferred to NIA and the statements recorded by the State police under

Section 161 Cr.P.C. were not made part of the charge-sheet presented by

NIA, the Court directed for supply of the said statements to the accused

while observing that investigating agency was not entitled to withhold the

same.

31. In view of the discussion made above, this Court has no hesitation in holding

that any such evidence collected by the investigating agency which has

initially investigated the case before such investigation is transferred to

another investigation would very much form part of the case and cannot be

segregated. Neither the previous proceedings can be said to have become

void or non-est nor such evidence can be said to be alien to the case. It is for

the Court to assess the value and reliability of such evidence. The copies of

all such documents collected in evidence by the first investigating agency

cannot be withheld and are required to be dealt with in the same manner as if

the same were collected by the second investigating agency which presented

final report under Section 173 Cr.P.C.

32. Fourth Question :

(iv) In a case where the 'relied upon' document/evidence is in digital form (electronic data) stored in a device/storage device wherein other data is also stored which is 'un-relied' document then as to whether the accused would be entitled to a copy of the entire stored data in such device/storage device or to only selective data?

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 25 ) 2023:PHHC:065516

It is not in dispute that a mobile phone, laptop, external drive of deceased

were seized by the police. The data stored in said i-phone 5 was retrieved

with the help of FBI, USA, and the volume of such data was found to be 51.6

GB. The said data included call logs, chats, facebook messages, text

messages, images, videos, MMS, audio recordings, emails etc including

some objectionable pictures. As per 'untraced report' under Section 173

Cr.P.C (Annexure P-9) chats with another 6 girlfriends were found, who are

referred to as GF-1, GF-2, GF-3, GF-4, GF-5 and GF-6 in the said report.

33. Interestingly, while there is specific mention in the 'untraced report'

initially filed by CBI that deceased was having multiple affairs with women

and some details and extent of relationship is also disclosed therein but the

the same is conspicuously missing in supplementary report (Annexure P-11)

filed by CBI. Similarly there is no reference to property transactions in

supplementary report (Annexure P-11) though the same was there in

'untraced report'. A majority of such information had been extracted from

the i-phone, laptop etc. which had been taken into possession by police and

do find referred in 'untraced report' .

34. The prosecution, however, has chosen not to furnish the entire copy of such

electronic data but has chosen to furnish extracts thereof only. Once the

police has taken into possession record, a part of which could have

propensity to dent the case of prosecution, the entire record ought to be

supplied to accused and the prosecution cannot be selective in furnishing

such data. If the data retrieved from mobile phone was found to be 51.6 GB,

the entire data (51.6 GB) ought to be furnished to accused, unless

specifically permitted to be excluded by Court.

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document

CRM-M-8463-2023 (O&M) ( 26 ) 2023:PHHC:065516

35. No such request in terms of section 173(6) Cr.P.C. for excluding any

statement or record was ever made nor any application was ever moved by

the prosecution seeking exclusion of any document/data. In the absence of

any such order, the record which finds mentioned to have been seized by

police cannot be withheld. This power to withhold statements or documents

cannot be unbridled or uncanalised. It can only be used under the

circumstances narrated in sub-section (6) of Section 173 of the Cr.P.C. or

under any specific order of Court. The investigating agency is not entitled to

use the power according to its whims and fancies so as to deprive an accused

of his invaluable right to effectively defend himself.

36. Still further, when the 'untraced report was filed, the de-facto complainant

i.e. the mother of the deceased had filed protest petition and she was supplied

copies of the entire record as is evident from order dated 22.9.2021

(Annexure P-19) vide which the complainant was furnished with a copy of

untraced report including statements of witnesses recorded under Section 161

Cr.P.C. and order dated 18.11.2021 (Annexure P-20) vide which the

complainant was furnished with electronic evidence in the shape of pen-

drive. In such circumstances, the accused cannot be kept at a

disadvantageous position by not supplying copies to him. More so, when the

case is based mainly on circumstantial evidence wherein the motive being

imputed to the accused i.e. her relationship with deceased having gone sour,

could be imputed to his other girl-friends as well particularly when his talks

of his matrimony were going on with one of them and he he was intimate

with one of them. The petitioner may even be successful in establishing her

plea that murder was a result of some property deal. It is such

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 27 ) 2023:PHHC:065516

record/evidence which could have propensity to shatter the case of

prosecution.

37. The manner in which the aforesaid aspects are now being underplayed would

be evident from juxtaposing relevant extracts from 'untraced report'

(Annexure P-9) and supplementary challan (Annexure P-11), pertaining to

data retrieved from mobile phone of deceased. The said extracts are as under:

Para 16.76 of 'Untraced Report' dated Para 16.67 of Supplementary Challan dated 7.12.2020 filed u/s 173(2) Cr.P.C.(Anx.P-9) 12.9.2022 (P-11) filed u/s 173(8) Cr.P.C.

Investigation has revealed that one Investigation has disclosed that data from

mobile phone i-phone 5 was recovered one mobile phone i-phone 5 recovered

from the person of the deceased on from the person of the deceased on

20.09.2015 was got retrieved with the 20.09.2015 was got retrieved with the

help of FBI, USA. The copy of 51.6 GB help of FBI, USA. The copy of 51.6 GB

data in the shape of call logs, chats i.e. data in the shape of call logs, chats i.e.

facebook messages etc., device Facebook messages etc., device

notifications, emails, MMSs, recordings, notifications, emails, MMSs, recordings,

SMSs, Audios, Vidoes, Images, text, SMSs, Audios, Vidoes, Images, text,

documents etc. revealed the presence of documents etc. revealed the presence of

objectionable pictures which were objectionable pictures which were

subject matter of sour relations of Ms. subject matter of sour relations of Ms.

Kalyani Singh with the deceased beside Kalyani Singh with the deceased.

incriminating chats of other girl

friends.

38. From the aforesaid juxtaposition, it is noticed that both are verbatim same

excepting for the fact that last seven words i.e. 'beside incriminating chats of

other girl friends' have been deleted in supplementary challan. Infact the

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 28 ) 2023:PHHC:065516

entire reference to affairs with other girls and also property details are

missing in supplementary report.

39. Hon'ble Supreme Court in Nirmal Singh Kahlon v. State of Punjab (2009)1

SCC 441, specifically stated that a concept of fair investigation and fair trial

are concomitant to preservation of the fundamental right of the accused

under Article 21 of the Constitution of India.

40. Recognising the rights of the accused, vis-à-vis the role of prosecution,

Hon'ble Supreme Court in Shiv Kumar v. Hukam Chand (1999)7 SCC 467,

observed as under :

"13. ..... ...... ....... A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge......"

41. While relying upon the aforesaid judgement, Hon'ble Apex Court in a recent

judgment rendered in Manoj v. State of M.P., (2023) 2 SCC 353, further

highlighted the role of prosecution in the following words:

"199. A Public Prosecutor (appointed under Section 24 CrPC) occupies a statutory office of high regard. Rather than a part of the investigating agency, they are instead, an independent statutory authority who serve as officers to the court. The role of the Public Prosecutor is intrinsically dedicated to conducting a fair trial, and not for a "thirst to reach the case in conviction". This Court in Shiv Kumar v. Hukam Chandfurther held that :

'13. ... If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it

KAMAL KUMAR available to the accused.' 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 29 ) 2023:PHHC:065516

200. In Manu Sharma v. State (NCT of Delhi) 2010(6) SCC 1,(hereafter "Manu Sharma") it was concluded that :

'187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused.'

207. In this manner, the Public Prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the accused's right to fair investigation, when faced with the might of the State's police machinery."

42. While admittedly, the police and the prosecution are integral part of Criminal

Justice Administration system but their job is not just to secure conviction

once FIR is lodged by complainant but to find out the truth and to place all

facts before the court, whether establishing his guilt or innocence. Every

effort has be made to ensure that no person is deprived of his liberty except

strictly in accordance with law. In a given case, even if the data in question is

otherwise highly sensitive but relevant, the accused can be given access to

the same by imposing certain safeguards and riders to ensure that it is not

misused or made public. Hon'ble Supreme Court in 2017 (2) RCR (Criminal)

85 Tarun Tyagi versus Central Bureau of Investigation dealt with a similar

question regarding non-supply of some electronic data which had been

seized by the police during the course of investigation but not supplied to the

accused alongwith the charge-sheet. Apprehension had been raised by the

prosecution regarding misuse of the data but Hon'ble Supreme Court while

recognizing the right of the accused to such data held that while supplying a

cloned copy of the hard disk some safeguards may be imposed while

ensuring a fair trial to the accused so as to enable him to defend himself and

while also taking care of the apprehension of the prosecution. KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document

CRM-M-8463-2023 (O&M) ( 30 ) 2023:PHHC:065516

43. In view of the discussion made above, there is no justification for witholding

complete data/electronic evidence retrieved from electronic/digital devices of

deceased. Question no. (iv) stands answered accordingly.

44. In view of the discussion made, and having regard to the conclusion drawn

on the questions framed above, the impugned orders dated 4.2.2023,

30.1.2023, 16.12.2022 and 22.12.2022 (Annexures P-2 to Annexure P-5),

inasmuch as the same pertain to denying the petitioner of his rights to get

complete set of copies of documents filed by prosecution alongwith

'untraced report' (Annexure P-9) including statements of witnesses recorded

under section 161 Cr.P.C. and denying complete copies of electronic data

retrieved from mobile phone, laptop and CDs seized by police during

investigation either by Chandigarh Police or by CBI, cannot sustain and are

hereby set aside. As regards the commitment order, the learned counsel for

petitioner has not seriously assailed the same. The same otherwise also is not

found to be suffering from any infirmity and cannot be set aside on account

of some document not having been furnished to accused.

45. The prosecution is directed to furnish complete set of documents which were

filed by prosecution alongwith 'untraced report' (Annexure P-9) including

statements of witnesses recorded under section 161 Cr.P.C. Since some of the

documents are lying sealed in the Court, the prosecution shall move

appropriate application before the trial Court for unsealing the same so as to

supply copies of such record immediately to accused. In case, any other

record in repect of investigation conducted by Chandigarh Police is lying

with CBI, copies of the same shall also be furnished to accused.

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document

CRM-M-8463-2023 (O&M) ( 31 ) 2023:PHHC:065516

46. As far as electronic record/data found stored on mobile phone, laptop and

CDs seized by police is concerned, though the petitioner is held entitled to

same in entirety, whether a 'relied upon' document or 'unrelied' documents

but this Court upon perusal of the 'untraced report' finds that there is some

data in the shape of chats between deceased and his girlfriends apart from

objectionable photographs, which could cause embarrassment to those to

whom it relates.

47. Although, section 173(6) Cr.P.C. provides for exclusion of statements from

the copies to be supplied to accused but no such provision is provided for

exclusion of documents. The only provision with regard to documents can be

found in proviso to section 207 Cr.P.C. wherein the Magistrate upon finding

the document to be voluminous can, instead of providing copy of such

document, direct that only inspection of such document shall be permitted

only to record and not the documents.

48. However, concerns as regards privacy have been duly acknowledged by

Hon'ble Supreme Court in in P. Gopalkrishnan v. State of Kerala, (2020) 9

SCC 161. Hon'ble Apex Court, while being fully aware that unlike in case of

'statements', there is no specific provision for witholding 'document' from

an accused, held that safeguards could be imposed while providing sensitive

data. The conclusions drawn therein are reproduced herein-under:

"50. In conclusion, we hold that the contents of the memory card/pen-drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 32 ) 2023:PHHC:065516

expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides."

49. The above referred judgment makes it clear that in case where personal

sensitive information of complainant is pitted against right of accused to

defend himself, some workable solution has to be made. An electronic

storage device, in layman's language could contain digitised record in the

nature of text, image, audio or video. Depending upon storage capacity of

such device, any volume of data/record can be stored. Each such text

document or image etc. are referred to as 'files' which could be further

managed and stored together in one part or section of storage device in the

nature of a compilation which, like in case of physical documents, are called

'folders' which can be assigned any name for identification and quick

retrieval. There can even be 'sub-folders' within 'folders'. To have ready

access to any 'file' from amongst various 'folders', there are 'directories'

and 'paths' , which are basically road-maps to reach the destination and be

able to have quick access to the required 'files' in stored data. There, for

sure, would be a large number of files which would be irrelevant to the case

which, in a given case, cannot possibly have any bearing on the case or some

personal information or some information which has tendency to scandalise

or be misused. If in such a case, the prosecution seeks to exclude certain

record or part of record from the copies of documents to be supplied to the

accused under Section 207 Cr.PC, it is required to make out a case for same.

P. Gopalkrishnan's case (supra) makes it clear that in fit cases some

safeguards may be ensured to check misuse of data.

50. Since, a part of data includes chats between deceased and his girlfriends

apart from objectionable photographs, which could lead embarrassment to KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 33 ) 2023:PHHC:065516

those concerned, it will be in the fitness of things that such data be either

provided by imposing some strict conditions on accused or only regulated

access is provided to the same to the accused. The prosecution may move an

application in this regard within one week from today. Such application shall

be moved after preparing a complete list of files/folders/directories found

stored on storage devices. If, the accused has no objection, only a general

description may be recorded as regards contents of folders. However, the

description and location, complete with directory/path of data, with respect

to which prosecution seeks imposing of some conditions on accused or seeks

that only regulated access be provided, should be specifically mentioned.

51. Though, no specific procedure has been laid in Cr.P.C. or High Court Rules

and Orders for considering such exclusion but in cases where such a request

for exclusion of some personal sensitive data is made by prosecution, the

same could be considered by the Magistrate in the following manner:

(i) the Magistrate should peruse or watch such data or part of data which is identified and proposed to be excluded, as the case may be, with the help of computer or any other compatible device. In case, upon such perusal, the Magistrate is of the opinion that such data or part of data is highly sensitive and could be misused, then some safeguards could be imposed while sharing the same with accused. The accused could be strictly directed not to share the same with others and not to play or watch in presence of anybody else except his lawyer. If feasible, such data could be given in a form which cannot be copied further;

(ii) in case such data or part of data is found sensitive to such an extent that it is not safe to hand over a copy of the same to accused, having regard to his character or position or any other consideration, the Magistrate may, instead of furnishing copy of the same, chose to allow the accused to have access to such record only in the Court in a very KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 34 ) 2023:PHHC:065516

regulated manner so that chances of the same being shared or made public are eliminated. The accused and his counsel, in such case, would be permitted to see such record in the presence of Magistrate only. However, such permission to be granted liberally and may be availed of any number of times, subject to convenience of Court. Such permission may be granted anytime after presentation of report under Section 173 Cr.P.C. In such cases, the original storage device shall be kept sealed and shall be unsealed only when required and shall again be resealed;

(iii) complete description and location of all files on storage device, whether classified as 'relied upon' documents' or 'unrelied upon' documents' including documents to which only regulated access is provided, shall be incorporated in the lists to be prepared, so as to facilitate quick access to relevant data/files whenever required. As far as possible such list/lists shall broadly account for each GB/MB of the total capacity of storage device seized or recovered during investigation. Such lists shall also be provided to accused;

(iv) the accused may be provided assistance of some computer savvy person, preferably from amongst official of the Court like System Analyst, for having access to such record in Court, if only regulated access/inspection has been permitted;

(v) the Court may fine-tune the above stated procedure as may be required in the given circumstances of a case;

(vi) it is clarified that such exercise, at the instance of prosecution, would be in the nature of request for 'exclusion' from supplying some specific data to accused. Since there is no provision for absolute exclusion, the Magistrate would be competent only to either supply such data with certain conditions as safeguard or to provide regulated access only to such data in Court instead of supplying such data. The accused would be furnished with complete copy of the data which was found stored on storage devices excepting for such specific data in respect of which only regulated access in Court is provided.

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document CRM-M-8463-2023 (O&M) ( 35 ) 2023:PHHC:065516

52. The trial Court shall defer the consideration as regards framing of charges till

the aforesaid documents/data is supplied to the petitioner. Since, during the

course of arguments, the learned counsel for the petitioner had offered to

bear all the expenses that may be incurred for copying the electronic data, the

CBI may inform the accused beforehand as regards the entire expenses to be

incurred for supplying electronic record including cost of storage devices,

which shall be deposited in advance by the petitioner either in Court or in the

office of the CBI. Needless to mention, it shall also be open to petitioner to

move any fresh application so as to seek copies of any other record. The

entire exercise be concluded expeditiously preferably within a period of two

weeks.

53. The petition stands accepted in above mentioned terms.

8.5.2023 ( Gurvinder Singh Gill ) kamal Judge

Whether speaking /reasoned Yes / No Whether Reportable Yes / No

KAMAL KUMAR 2023.05.08 14:30 I attest to the accuracy and authenticity of this document