ASHOK CHAWLA Vs. RAM CHANDER GARVAN

JUDGEMENT

(1.) A complaint under Section 13 of the Official Secrets Act, 1929 ( in short "the OS Act?) was filed by Shri Ram Chander Garvan, Inspector of Police, CBI against the Petitioner herein and one Ms. Vijaya Rajgopal. The complaint is pending since 20th November, 2000 and not even a single witness has been examined so far. On the Petitioner filing a petition being Criminal M.C. 1927/2009 this Court vide order dated 15th February, 2010 exempted the Petitioner from personal appearance subject to certain conditions and directed the learned Trial Court to expedite the recording of pre-charge evidence and conclude the same within one year from that date. Soon thereafter on 20th February, 2010 the Petitioner moved an application under Section 91 Code of Criminal Procedure for summoning of documents/reports/final reports before the learned Trial Court. The prayer in the application was not for the supply of documents relied upon by the prosecution but the Final Report-I (FR-I) and Final Report-II (FR-II) prepared by the erstwhile Investigating Officer DSP Ram Chandra who carried out the investigation of the case from September, 1996 to April, 1997. The contention of the Petitioner was that these final reports showed that the searches were motivated and there were circumstances under which the planting of documents cannot be ruled out and therefore the recovery and possessions of the documents itself was in serious doubt. Shri Ram Chandra DSP, CBI who conducted the investigation from September, 1996 to April, 1997 recorded the statements of the Petitioner, his employees and other income tax Officials and submitted his Final Report - I and further Final Report-II not recommending the prosecution of the Petitioner and the other accused because he was of the view that the recovery of the document itself could not be proved beyond doubt and any further investigation particularly examination of defence personal etc. would not be fruitful. It was thus, the view of the Investigating Officer that a closure report be filed.

(2.) The learned Trial Court after hearing the arguments dismissed the application of the Petitioner inter alia for the reasons; that no doubt the Court has power to call for the record and peruse the same but the satisfaction has to be of the Court and the accused is entitled to be supplied with the copies of the material used by the prosecution against the accused so that he can defend himself properly. It was held that the documents sought by the Petitioner were not meant to be used against him as they were not being relied upon by the CBI and thus, the Petitioner was not entitled to the production of the said documents. Challenging this order the Petitioner first filed a Criminal Revision Petition bearing No. 381/2010 before this Court which was dismissed as withdrawn vide order dated 3rd August, 2010. The Petitioner has thereafter filed the present petition challenging the impugned order dated 30th April, 2010.

(3.) Learned Counsel for the Petitioner contends that the scope of provision of Section 91 Code of Criminal Procedure is much wider than Sections 207 or Section 208 Code of Criminal Procedure According to Section 91 of the Code, whenever a Court considers that the production of any document or other thing is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings before the Court, such Court may issue summons to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it. Under Section 91 of the Code, the Court has power to call documents not even relied upon by the prosecution. It is stated that under Section 3 of the Evidence Act a final report prepared by the Investigating Officer is a "Document?; and the "Evidence? under the said Section means and includes all documents produced for the inspection of the Court; such documents being called "documentary evidence". The prosecution in this case has taken contrary stands; first stating that no such report was prepared and then taking legal objections. Once the privilege claimed by CBI of those documents in terms of the CBI manual has been turned down by the learned Trial Court, and the Respondent having not challenged the said finding, the same has attained finality and cannot be allowed to be reopened in this writ petition. The prosecution cannot also claim recourse to Section 124 of the Indian Evidence Act as no public interest would suffer by the production or disclosure of the documents asked for. The CBI manual cannot override the provisions of Code of Criminal Procedure and in any case the same cannot take away the fundamental right of the accused guaranteed under Article 21 of the Constitution of India of a proper defence of his case. Reliance is placed on Neelesh Jain v. State of Rajasthan, 2006 CrLJ 2151 wherein the Court directed production of documents like photos, love letters between the prosecutrix and the accused Petitioner, some STD bill slips and the ledger book which were though recovered but not filed by the police along with the charge sheet.