Delhi High Court
Dharrambir Khattar vs Centreal Bureau Of Investigation on 17 November, 2015
Author: Suresh Kait
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 17th November, 2015
+ CRL.M.C. No.4653/2015
DHARRAMBIR KHATTAR
..... Petitioner
Represented by: Mr.S.K.Rungta, Senior
Advocate with Mr.Prashant
Singh, Adv.
versus
CENTREAL BUREAU OF INVESTIGATION
..... Respondent
Represented by: Ms.Sonia Mathur, Standing
Counsel with Mr.Shushil Kr
Dubey, Adv and IO
Inspector Sanjay.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl. M.A.No.16669/2015 (Exemption)
Exemptions allowed, subject to all just exceptions.
Accordingly, the application is allowed.
CRL.M.C. No.4653/2015
1. Vide the present petition filed under Section 482 of the Code of
Criminal Procedure, 1973, petitioner seeks direction thereby setting aside
the orders dated 19.10.2015, 26.10.2015, 28.10.2015, 30.10.2015 and
02.11.2015 passed by learned Trial Court in RC No.39(A)/2003-DLI
pending trial against him.
2. The issue in the present petition is that the petitioner/Accused No.1
moved applications under Section 91 read with Section 313(5) of the Cr P
C and as well as under Section 243 of the Cr P C for production of
documents as mentioned in para No.7 of the application under Section 91
of the Cr P C, which are as under:-
"Doc Description of document Authority in
u- whose possession
ment the document is
No. available
a. The complete allotment Malkhana of CBI
file of the plot No.1, East pertaining to RC
of Patel Nagar No.39(A)/2003-
Institutional Area DLI/ACB/New
(Prasad Nagar), Delhi Delhi, dated
containing the 11.07.2003 or in
application for PE No.5(A) /
allotment, its processing 2003.
and the order thereby
directing the allotment.
The file bearing No.F.8
(25)/84-IL and the same
is evident from the relied
upon document of the
prosecution; (Only part
file without complete
note side or
correspondence side had
been produced).
Document D-27, reflect
the calculation of
ground rend in the
corresponding file for
the year 1985 to
23.12.03.
b. The File Malkhana of CBI
No.F.8(25)/84/IL/Pt. pertaining to RC
(here Pt. Reflect Part No.39(A)/2003-
File), only some pages DLI/ACB/New
of the same had been Delhi, dated
brought on record. 11.07.2003 or in
Complete set of note PE No.5(A) /
sheet side and 2003.
correspondence side had
not been brought. The
complete file required to
be summoned.
c. The record reflecting Malkhana of CBI
compliance of the order pertaining to RC
dated 05.11.2007, No.39(A)/2003-
passed in the present DLI/ACB/New
proceedings. Delhi, dated
11.07.2003 or in
PE No.5(A) /
2003.
d. Original Assessment Malkhana of CBI
File of House Tax, pertaining to RC
existence of which had No.39(A)/2003-
been reflected in the DLI/ACB/New
deposition of Lw- Delhi, dated
10/PW23/Sh.R.P. Gola. 11.07.2003 or in
PE No.5(A) /
2003.
e. File pertaining to Civil The file would be
Suit NO.1135/06/98 and available with
No.1146/06/98 titled the Record
Shri Bhairon Mandir Room, Tis Hazari
Smiti Vs. DDA decided Courts, Delhi
by Ld Civil Judge, Sh.
Sanatan Prasad, Tis
Hazari Courts, Delhi
and date of decision is
08.03.2007.
f. File pertaining to Civil The file would be
Appeal /RCA No.12/07 available with
and 15/07 titled LG & the Record
Anr v/s Shri Bhairon Room, Tis Hazari
Mandir Simiti, decided Courts, Delhi
by Ld. ADJ, Dr. Kamini
Lau, Tis Hazari Courts,
Delhi and date of
decision is 16.10.2008.
g. File pertaining to Writ The file would be
Petition (Civil) available with
No.134/04 and 17021/08 the Record
tilted Shri Bhairon Room, Hon'ble
Mandir Samiti vs DDA Delhi High Court
& Ors, decided by at New Delhi.
Hon'ble High Court of
Delhi at Delhi and date
of decision is
12.02.2009.
3. Mr.Rungta, learned senior counsel appearing on behalf of petitioner
submits that DW1 Inspector Arjun Singh from Malkhana of CBI had
deposed that these documents are not available in his custody.
Accordingly, petitioner sought permission from the learned Trial Court to
summon the witness from DDA/MCD to produce such records.
Accordingly, vide order dated 02.11.2015, learned Trial Court granted last
opportunity to the petitioner to summon and examine the witnesses, to
which the petitioner is aggrieved.
4. Learned senior counsel further submits that since these documents
are also relied upon as mentioned in the seizure memo itself, the petitioner
has right to summon the concerned witness with relevant record.
5. Admittedly, the statement under Section 313 Cr P C of the
petitioner /accused No.1 has already been recorded. Thereafter, he opted
to lead defence witnesses. Accordingly, he summoned DW1 Inspector
Arjun Singh from CBI, who deposed that the documents summoned for
are not in his possession, though mentioned in the seizure memo.
6. Needless to state that the petitioner has every right to have access
to the documents relied upon by the CBI and if for any reason the
prosecuting agency failed to produce them, the benefit thereof shall be
given to the accused, as per law.
7. In the present case also, without commenting upon the impugned
orders passed by learned Trial Court, I am of the considered opinion that
in case the petitioner summons the witnesses either from CBI/DDA/
MCD or any other institution, then it is the duty of the Court to ensure
that said witness(s) appear and depose before the Court. If for any reason,
such witnesses do not come and depose or produce the relevant record,
the benefit thereof will be given to the accused as per law.
8. Learned standing counsel for CBI submits that the documents
sought by petitioner are part of the Trial Court Record, which is being
disputed by learned senior counsel for petitioner.
9. Let learned Trial Court to ensure that the documents mentioned the
application under Section 91 of the Cr P C, are on record; then there
would be no necessity to call for the record. However, the liberty would
certainly be granted to the petitioner to call for the defence witnesses as
desired by him.
10. I further make it clear that if the documents are not on record, the
relevant witnesses maybe summoned with the documents and in case the
documents are not produced, accordingly, learned Trial Court shall give
the benefit thereof to the petitioner, in accordance with provisions of law.
11. In above terms, instant petition is allowed.
12. Order dasti to the learned counsel for the parties under signature of
the Court Master.
Crl. M.A.No.16668/2015 (Stay)
Dismissed as infructuous.
SURESH KAIT
(JUDGE)
NOVEMBER 17, 2015
M
