Excise policy scam case: What’s the fear in supplying list of ‘unrelied documents’, Delhi HC asks CBI

“Unrelied” documents are collected by probe agencies at the time of investigation but not used as evidence by the prosecution.

The CBI has challenged the May 22 Rouse Avenue special CBI court order, which had stated that the court will proceed with the arguments on charges “once the relied-upon digital evidence copy and the list of URDs are supplied to the accused individuals”.

The trial court had reasoned that “as the CBI must provide copies of relied-upon digital data currently with CFSL (Central Forensic Science Laboratory), this court cannot yet hear arguments on charge, given that all relied-upon documents must be available to the accused before charges”.

It had directed that “all notices under Section 91/160 CrPC and written communications sent by CBI to others, including witnesses and accused, and all written communications/documents received by CBI concerning those notices/written communications, must be included in the list of URDs if CBI does not intend to rely on them in this trial”.

Section 160 of the Criminal Procedure Code (CrPC) empowers police officers to summon individuals to assist in the probe.

Directing that the list of URDs should be filed in court, and copies of the list must be supplied to all accused, the trial court had directed that the investigating officer (IO) “shall file an affidavit confirming that no other such notice/communication/document is omitted from the relied-upon documents or the URD”.

Opposing the direction to the IO, the CBI, while arguing before Justice Ravinder Dudeja, also opposed the direction that notices issued to and statements made by the accused under Section 160 of CrPC — before they were considered to be an accused in the case — be considered a part of URDs.

The CBI’s counsel told HC, “We have already given whatever we are relying upon, the (special CBI) judge wants the entire data to be given… CrPC sections 91 and 160 are tools of investigation, how can it be given? It is not part of the evidence collected.”

“There cannot be a procedure in the Delhi excise case which is different from any other case… (IO of) CBI has to file an affidavit for (filing all unrelied communication/notices) everything? It is unheard of… Some people have intimate messages and videos, some have competitive information (as businesses are also accused in the case)… There are privacy concerns… Inter se, conflict of privacy in URDs should not stall the trial,” the counsel added.

Further opposing the supply of CrPC Section 160 notices and statements of accused recorded prior to them being made accused, the CBI added, “Once they have been made accused, that statement is not part of relied upon or unrelied upon documents, because those statements can also trample upon somebody’s right to self-incrimination.”

Justice Dudeja, however, asked the CBI’s counsel, “…Point is, why should it not be given… Disclosure statements of accused persons are not made part of the record… Why did you record the statement of the accused at the first instance if you were not going to rely, or not rely on such statements? You can provide the list (of URDs).”

While CBI contended that if included in the list of URDs, “it will then be seen by everybody else”, Justice Dudeja orally responded, “Show then… what is the fear… What is the prejudice being caused to you in case you hand over the copies of the notices under CrPC Section 160? Why do you not want to share these notices?”

The CBI contended, “It is not about fear, it’s about what is relevant and not… (If the trial court’s directions are upheld) what will happen is, it will become a practice (of including CrPC Section 160 notices) which does not exist at all… It is a roving inquiry.”

A defence advocate for the accused, Rajat Bharadwaj, contended before the court, “The fear is the entire frivolous investigation they have done will come all out in the open. Since past six months, they are not supplying us these documents… thereby these directions have been passed by the trial court.”

Another defence advocate, Adit Pujari, added, “This is a bogey being played (by CBI)… that supply of the list is going to delay arguments on charge…”

While an order is awaited, Justice Dudeja indicated that the court is not inclined to stay the order till a status report is filed, all accused are served and their responses to the CBI’s petition come on record.

The court also indicated that it is agreeable only to the aspect of staying the direction that requires the IO to file an affidavit before the trial court.