Supreme Court resolves a document fight without choosing between its own precedents, ordering inspection instead of production

Justices J.B. Pardiwala and K. Vinod Chandran deal with each category of documents an accused sought from the CBI, and set aside the orders below to let the trial move.

An accused in a CBI case at Ranchi obtained orders in 2019 and 2022 requiring the agency to produce ten categories of documents it had not relied on, at the stage of framing charges. The CBI's appeal raised a question on which two Benches of the Supreme Court have said different things. Justices J.B. Pardiwala and K. Vinod Chandran declined to resolve the conflict, proceeded on the premise that an accused is entitled to the documents available with the prosecuting agency to shape his defence, and then worked through the ten categories one by one — producing some, refusing others, and converting the largest head into a right of inspection with production at trial.

How the dispute arose

The accused applied under Section 91 of the Code of Criminal Procedure, 1973 for certain documents. The Special Judge No. 1, CBI, Ranchi allowed that application on 21 September 2019, listing the documents sought as items (a) to (j).

The CBI filed a compliance report, producing some documents, resisting the production of others, and asserting that some were not in its possession at all. A further application by the accused resulted in an order of 18 July 2022, which was affirmed by the High Court in the order under challenge.

The Additional Solicitor General appeared for the CBI and senior counsel for the accused. One matter was cleared away before the hearing: pursuant to an order of the Court, the accused filed an affidavit that he was not seeking the source of information received by the CBI, nor the case diaries.

Two decisions pointing in different directions

The accused relied on Sarla Gupta v. Directorate of Enforcement; the CBI relied on the earlier decision of a Coordinate Bench in State of Orissa v. Debendra Nath Padhi.

Debendra Nath Padhi held that so far as the accused is concerned, his entitlement to seek an order under Section 91 would ordinarily not arise until the stage of defence. Sarla Gupta found that those observations were made in the context of what constitutes the record of the case for the purpose of Section 227. But Sarla Gupta also held that though the accused will be entitled to a list of documents, objects and exhibits that are not relied upon by the agency at the stage of framing of charge, in the ordinary course he is not entitled to seek copies of those documents at that stage.

Faced with that, the Bench took a route that avoids the doctrinal question. It said it need not look at those decisions, and would proceed only on the premise that the accused is entitled to the documents available with the prosecuting agency to shape his defence. The question arising, it held, is at what stage the documents could be sought — and that has to be looked at on the specific documents sought for.

That is a deliberately modest framing, and it has a consequence: the judgment decides this dispute without settling when an accused may have copies of unrelied documents as a matter of principle. The conflict between the two decisions remains where it was.

Why the stage matters

The dispute is a recurring one in cases investigated by central agencies, and it is worth setting out what is actually at stake on each side.

An agency that investigates for years gathers far more material than it eventually relies on. Some of what it sets aside may help the accused, which is why the law gives him access to it at some point. The contest is about when. At the charge-framing stage the court is deciding whether there is enough to put the accused on trial, and it does that on the record of the case as the prosecution presents it; an accused who can require production of everything the agency holds can turn that hearing into a trial in miniature, which is the concern behind Debendra Nath Padhi. Against that, an accused who must wait until his defence to see a document may find the trial has moved past the witness through whom he needed to prove it — which is the concern that Sarla Gupta addresses by giving him a list of what exists.

The mechanism this judgment settles on sits between the two. The accused is told what the bulk material is and allowed to inspect it; he identifies what he needs; and production follows at the point in the trial when the document can actually be used, with the agency obliged to keep the files ready. He gets the benefit of access without the charge-framing hearing becoming a documentary contest.

Category by category

What follows is an item-wise disposal, and it is the useful part of the judgment for anyone conducting such an application.

The seizure memos through which documents had been seized during the investigation from various departments and authorities — item (a) — had been produced.

Items (b), (c) and (d) were the daily diary register and the FIR register maintained in the CBI office for two months, the letter dispatch register for the same period, and the source information report with its verification. These, the Court held, are registers maintained by the CBI and the source information, which cannot be divulged. It also recorded that the accused had not insisted upon them, having withdrawn his request.

Item (e) was the voluminous head, and it received the Court's attention. The CBI had permitted examination of those documents. The Bench directed that the accused could examine them and seek production of the specific document required at the appropriate time, when the appropriate witness is being examined either by the prosecution or by the defence, for which purpose the CBI shall keep the files ready at the time of trial. As an alternative, the CBI could permit the accused or his authorised representative to specify, at the time of inspection, the particular document required; that specification is to be reduced to writing and signed by both parties and produced before the trial court without delay, and only the documents so specified need be kept available in court at trial.

Item (f) concerned minutes of meetings. The CBI stated that only the minutes of the eleventh meeting were relied upon in the case, while the accused contended there were other minutes that would absolve him of the alleged criminal culpability. Since the documents were sought by specific dates, the Court held that if they are available within the voluminous records the accused has been permitted to examine, production could be sought at the appropriate stage in the manner directed. If they are not available with the CBI, the accused would be entitled to procure them and prove them in his defence evidence — by resorting to the Right to Information Act, 2005, or otherwise.

For items (g), (h) and (i), the CBI categorically stated that they are not available with it, and the Court held that what is not available with the agency necessarily cannot be produced by it.

On item (j), the CBI's submission was that the persons concerned were not arrayed as accused, and that their appointments, if at all, would not in any manner exculpate the accused. The Court proceeded on that basis.

What the approach amounts to

Read together, the directions substitute a workable mechanism for a contest about production.

The accused gets access — inspection of the bulk material, with the agency obliged to keep files ready and to produce what is specified. He does not get wholesale production of unrelied documents before charges are framed. Where the agency does not hold a document, he is pointed to the Right to Information Act and to his own defence evidence rather than left with an unenforceable order. And the registers and source information are withheld, a point that did not need deciding because the request had been given up.

The Court's stated purpose was expedition. The impugned orders were set aside, in the words of the judgment, to facilitate an expeditious trial — in a case where applications about documents had been running since 2019.

A narrow decision, deliberately

It is worth recording what remains unsettled, because the judgment is explicit that it is not settling it.

Whether an accused may have copies of unrelied documents at the stage of framing of charge, and how Debendra Nath Padhi sits with Sarla Gupta, are questions the Bench expressly set aside. It proceeded only on the premise that the accused is entitled to documents available with the prosecuting agency to shape his defence, and treated the real question as one of timing to be answered document by document.

That has a practical consequence for anyone relying on this decision. It is authority for a method — inspect the bulk, specify what is needed in writing signed by both sides, produce it when the relevant witness is in the box — and for the propositions that registers and source information need not be divulged and that an agency cannot be ordered to produce what it does not hold. It is not authority on the larger question of entitlement, which awaits a case in which it has to be decided.

Order

The trial court was directed to proceed in accordance with the directions given, and the impugned orders were set aside to facilitate an expeditious trial.

The appeal was disposed of, and pending applications stand rejected.

Applications about documents in this case had been running since 2019, and the directions are framed to end that rather than to refine it further.