Mansimran Kaur

New Delhi, April 28, 2022: The Delhi High Court has reiterated that at the stage of framing of charge, the Trial Court is required to consider whether there are sufficient grounds to proceed against the accused.

The Bench of Justice Asha Menon was considering an appeal filed under Section 482 of Cr.P.C  read with Article 27 of the Indian Constitution, against the order dated November 20, 2020 passed by the Special Judge. 

The contention in the present case was that at the time of investigation, the CBI searched a locker belonging to the fourth respondent, Vaibhav Jain, maintained in the HDFC Bank. Thereafter a Locker Operation Memo dated April 12, 2018 was prepared and the documents found were mentioned therein. The memo contained various original sale-deeds of land purchased by the three companies held by the petitioner, namely, M/s. Akinchan Developers Pvt. Ltd., M/s. Paryas Infosolutions Pvt. Ltd. and M/s. Manglayatan Projects Pvt. Ltd.

In pursuance of the same, the fourth respondent filed an application under Section 91 of CrPCSeeking the summoning of the said Locker Operation Memo along with the documents mentioned therein. The petitioner also filed the same application. 

The Counsel for the petitioner submitted that at the time of framing of a charge, the petitioner had a right to show that he was not involved in any offence and urged that if these documents presenting the sale deed were produced before the Trial Court, the petitioner would have justified his plea for discharge. However, the Trial Court through its impugned order dismissed the application. 

The prime contention of the Counsel for the petitioner was with respect to sanction and it was contended that the Locker Operation Memo and the documents found in the locker, should have been placed before the Sanctioning Authority which would have impacted the exercise of discretion and the sanction may not have been granted. Since these documents were not placed before the Sanctioning Authority, the sanction was invalid and the Trial Court erred in observing that the validity of sanction would be considered at the appropriate stage.

To buttress his submissions, reliance was placed on various judgments in Nitya Dharmananda and Ors. v. Gopal Sheelum Reddy and OrsShakuntala v. State of Delhi, Ashutosh Verma v. CBI and Mansukhlal Vithaldas Chauhan v. State of Gujarat.

The Counsel for the respondent on the other hand, opposed the petition by submitting that the CBI was not in the possession of the documents found in the locker room. It was also submitted that the locker room was operated by the fourth respondent amid the FIR being registered. The CBI suspected the authenticity of the documents and was of the view that the documents were placed deliberately by the accused persons to defend their case. Reliance was placed on the judgments in   State of Orissa v. Debendra Nath Padhi, Ashok Chawla v. Ram Chander Garvan,, Assistant Collector of Customs and Ors. V. L.R. Malwani and Ors.

The question before this Court was pertaining to the supply of documents found in Locker No. 152 of fourth respondent and the consideration of the validity of the order of sanction passed by the Trial Court. 

The Court in view of the same, opined that that at the stage of framing of charge, the Trial Court is required to consider whether there are sufficient grounds to proceed against the accused. If, on a consideration of the record of the case and documents, and on the submissions made by both sides, the judge was to consider that there are insufficient grounds for proceeding against the accused, for reasons, it can discharge the accused under Section 227 Cr.P.C. However, if the Trial Court felt that there were sufficient grounds for presuming that the accused had committed such an offence, and then charge would be framed under Section 228 Cr.P.C.

The Bench said, “The Trial Court is required to consider only the Police Report and the documents sent with it under Section 173 Cr.P.C. and proceed on the presumption that all the materials produced are true.”

The Court referred to the judgment in Nitya Dharmananda’s Case (Supra) wherein the  the Supreme Court has reiterated that the defence cannot be considered at the stage of framing of charge, so as to avoid a mini trial. It was further observed that the defence had no right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court at the stage of charge. 

It was further observed that in Debendra Nath Padhi’s case (supra) that any document or other thing envisaged under Section 91 Cr.P.C. can be ordered to be produced on the finding that the same is “necessary” or “desirable” for the purposes of investigation, inquiry, trial or other proceedings. Thus, the first requirement of the Section is the determination of the necessity or desirability for the production of the document or other thing. Additionally, the stage at which such a prayer has been made to invoke Section 91 Cr.P.C. would also be determinative. However, Section 91 Cr.P.C. does not permit the accused to produce any document in his possession at the time of framing of charge, nor can documents that would form the defence of the accused be summoned at the stage when charge is to be framed.

On the question whether the documents summoned were in possession of the CBI , the Court observed that letter of the fourth respondent to the Bank uses the word “ ceased” . Therefore it couldnot be construed that the Bank meant that same thing as submitted by the petitioner. The note couldnot be treated as an information that the locker operations had been frozen and therefore, to infer that “constructive possession” could be assigned to the CBI, the Court observed. 

It was further noted that the fourth respondent in his application under Section 91 Cr.P.C. placed on the record Annexure P- 4 and averred therein that “the said documents were again kept back into the locker and were not taken deliberately in possession by CBI”, thus, acknowledging that the documents were not seized by the CBI. In these circumstances, when the documents referred to in the Locker Operation Memo were not in the custody of the CBI, the CBI couldnot be directed to produce and place the same on the record as if deliberately withheld. 

It was further observed that the Trial Court was right in its ruling and concluded rightly that the respondent and the petitioner were trying to  seek directions to the prosecution to first seize the document/ articles lying in the locker and then supply the same to them. 

Additionally, it was observed that the accused persons were relying on the documents in order to establish a defence that the land transactions by the three companies,  in which the accused persons were linked, were bona fide transactions and therefore the petitioner could not be charged for being  in possession of  disproportionate assets.

Lastly, this Court did not concede with the submissions of the Counsel for the petitioner, that the sanctioning authorities ought to reconsider the question of sanction, directing the respondent to place the documents found in the locker and listed in the Locker Operation Memo before the sanctioning authorities, particularly in the light of the conclusion that the said documents were not seized by the CBI and were not in its custody. It was also observed that before the CBI had operated the locker on April 13, 2018, the locker had been operated on January 6, 2018 by the respondent. Therefore, placing any reliance on these documents, at this stage, would be improper and their evidentiary value can be determined only after trial, added the Bench.

Thus, the impugned order of the Trial Court was upheld and the present petition was dismissed by this Court. 

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