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Judgment
HON’BLE SUBHASH VIDYARTHI, J.
Heard Sri Pranjal Krishna, the learned counsel for the petitioner and Sri Aakash Prasad and Sri Yash Joshi, the learned counsel for the opposite party- CBI.
By means of the instant petition filed under Section 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘BNSS’), the petitioner has challenged the validity of an order dated 17.08.2026 passed by the learned Special Judge, Anti-Corruption, CBI, Court No. 5, Lucknow in Case no.1117 of 2026 arising out of Crime No. RC 0062025A0033 under Sections 61(2) of B.N.S. (corresponding to Section 120-B IPC) read with Sections 7, 8, 10, 13(2) read with 13(1)(a) of the Prevention of Corruption Act, 1988 (as amended in 2018) and Section 316(5) Bhartiya Nyaya Sanhita (corresponding to Section 409 IPC), Police Station CBI/ACB, Lucknow.
The petitioner had filed an application requesting the Special Judge to direct the CBI to provide the copies of recordings of the conversations contained in the list of articles at serial Nos.1, 2, 5, 6, 7, 8, 9, 10 and 11. The CBI filed objections against the application stating that it is mentioned in the charge-sheet that the recordings and hand writings have been sent to the Central Forensic Science Laboratory (CFSL), New Delhi for obtaining an expert opinion/report and the opinion/report is still awaited. The CBI stated in its reply that as and when the CFSL report/opinion is received, the copies of the recordings and the report shall be supplied to the accused person.
The petitioner had filed a rejoinder to the CBI’s reply inter alia stating that she had sought copies of certain conversations mentioned in the list of articles annexed with the charge-sheet and not the CFSL reports pertaining to the voice recordings or hand writings.
The learned Counsel for the petitioner had contended before the trial Court that it is evident from the memorandum dated 31.12.2025 that CBI had made investigation copies of the alleged conversations during the course of investigation, which are available with the CBI and which have been used by CBI during the entire course of investigation to prepare transcripts etc. The petitioner contended that the recordings are an integral part of the case and are a vital piece of prosecution evidence and unless copies of the same are provided to the petitioner, the requirement of Section 230 BNSS, which mandates providing copies of all the relied upon material to the accused, is not fulfilled.
The trial court has disposed off the petitioner’s aforesaid application by means of the impugned order dated 17.08.2026, wherein it is recorded that it was submitted on behalf of the CBI that as soon as the recordings are received from CFSL, its copies will be provided to the petitioner. The trial court directed the CBI to make correspondence with CFSL, New Delhi for obtaining a test report expeditiously and to ensure providing copies of the conversations to the accused-petitioner under Section 230 BNSS without any delay.
The trial court has relied upon the judgments in the cases of Criminal Trials guidelines regarding inadequacies and deficiencies, In Re: Vs. State of Arunachal Pradesh and Ors.: (2021) 2 SCC 598, Manoj and Ors. Vs. State of MP: (2023) 2 SCC 353 and Sarla Gupta and Anr. Vs. Directorate of Enforcement: (2025) 7 SCC 626, wherein it has been laid down that even a list of unrelied documents is also required to be provided to the accused person under Section 230 BNSS. The trial Court has provided that till the relied upon documents are received back from CFSL, the petitioner may listen to the investigation copy of the recorded conversations and compare the transcripts of conversation with it.
Assailing validity of the aforesaid order, Sri. Pranjal Krishna, the learned counsel for the petitioner, has submitted that Section 230 BNSS casts a mandatory duty upon the prosecution to provide copies of the entire relied upon material to the accused. CBI is relying upon the recording of conversations that have been sent to CFSL and have not been produced before the trial court and copies whereof have not been provided to the accused-petitioner. Section 261 BNSS provides that when the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 230 BNSS, which has not been done in the present case. He has submitted that a Magistrate an proceed to consider an application seeking discharge filed by the accused person under Section 262 BNSS or to frame charges only after recording the satisfaction as required under Section 261.
The learned Counsel for the petitioner has submitted that non-availability of copies of recorded conversations which are relied upon by the CBI is causing a serious handicap to the petitioner in preparing grounds for seeking her discharge. He has further submitted that in case the trial court proceeds to frame charges under Section 263 BNSS without the aforesaid relied upon material being available before the trial court and its copies having been provided to the petitioner, the same will result a failure of justice to the petitioner.
Sri. Pranjal Krishna has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantiyal and Ors.: (2020) 7 SCC 1, wherein the Hon’ble Supreme Court held that: -
“54.It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 CrPC, which reads as follows, is mandatory. Therefore, the electronic evidence i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.” (emphasis added)
Per Contra, Sri. Aakash Prasad has submitted that CBI cannot produce a document which is not in its possession at this stage, as the same has been sent to CFSL. He has submitted that the CBI has not declined to provide copies of the recorded conversations to the petitioner but the same can only be done when the same are received back from CFSL. He has also placed reliance on the following principles laid down by the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar (supra): -
“56.Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case discretion to be exercised by the court in accordance with law.
57.2.After referring to Anvar P.V.2, the High Court held
15.Although, it has been observed by the Hon’ble Supreme Court that the requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but in my view it does not mean that it must be produced along with the charge-sheet and if it is not produced along with the charge-sheet, doors of the court are completely shut and it can not be produced subsequently in any circumstance. Section 65-B of the Evidence Act deals with admissibility of secondary evidence in the form of electronic record and the procedure to be followed and the requirements be fulfilled before such an evidence can be held to be admissible in evidence and not with the stage at which such a certificate is to be produced before the court. One of the principal issues arising for consideration in the above case before the Hon'ble Court was the nature and manner of admission of electronic records”
The learned counsel for the petitioner has placed reliance on Arjun Panditrao Khotkar (supra) to contend that the prosecution is obligated to supply copies of all the relied upon documents before commencement of the trial. The aforesaid judgment also lays down that where documents are permitted to be produced at a later stage, the court has to ensure that no serious or irreversible prejudice is caused to the accused. In the present case, the supply of copies of the recordings has not been denied and the same has merely been deferred for the reason that the recordings have been sent to CFSL and are not available on the record of the trial Court. In the meantime, the petitioner has been permitted to listen to the investigation copy of the recordings and has been provided copies of the transcripts of the recoded conversations. Therefore, it does not appear that any prejudice will be caused to the petitioner by supplying the copies of the recordings after receipt of the same from the CFSL, when the transcripts of the recorded conversations have already been provided to the petitioner and, therefore, the aforesaid judgment does not help the case of the petitioner.
The learned counsel for the petitioner has also placed reliance on the judgment of the Hon’ble Supreme Court in the case of V. K. Singh v. Central Bureau of Investigation: 2026 SCC OnLine SC 1047, wherein the Hon’ble Supreme Court has held that supply of documents cannot be denied to the accused persons merely on the ground that provisions of the Official Secrets Act have been invoked against him. The aforesaid case was decided on the basis of a concession made by the learned ASG that typed copies of documents will be provided to the accused subject to the condition that he may use those documents only for the purpose of court proceedings and he will not circulate the documents in any manner, whatsoever, particularly in electronic or print media or through the social media platforms. This concession advanced by the learned ASG was accepted by the learned Counsel for the accused appellant. An order passed on consent or concession, which does not lay down any law, is not a binding precedent.
In the present case, neither the CBI nor the trial Court have denied providing copies of documents to the petitioner and the only thing is that the documents have been sent to CFSL for obtaining expert’s report and their copies cannot be provided immediately due to non-availability of the original and the same will be provided as soon as the documents are received back from CFSL. After supply of the documents, the accused himself and/or his Counsel may inspect the documents before the trial court during hearing.
The learned Counsel for opposite party- CBI has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Central Bureau of Investigation v. R. S. Pai and Another: (2002) 5 SCC 82, wherein the Hon’ble Supreme Court held that: -
“7....normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word “shall” used in sub-section (5) cannot be interpreted as mandatory, but as directory. ... Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused…”
In Sameer Sandhir v. Central Bureau of Investigation: 2025 SCC OnLine SC 1206, the Hon’ble Supreme Court has followed the judgments in the cases of R. S. Pai (supra), Arjun Panditrao Khotkar (Supra), and reiterated that “if there is an omission on the part of the prosecution in forwarding the relied upon documents to the learned Magistrate, even after the charge-sheet is submitted, the prosecution can be permitted to produce the additional documents which were gathered prior to or subsequent to the investigation.”
In Sameer Sandhir (supra) the Hon'ble Supreme Court took into consideration the judgments in the cases of Sidhartha Vashisht @ Manu Sharma v. State (NCT Of Delhi): (2010) 6 SCC page 1 and V. K. Sasikala v. State Rep. By Superintendent Of Police: (2012) 9 SCC page 771 and held that: -
“These two decisions operate in completely different fields. The decisions are on the right of the accused to get the copies of all the relied upon documents. Basically, these two decisions deal with Section 207 of the CrPC, which deals with the supply of a copy of the Police report and other documents to the accused. In the present case, the question is whether the respondent-CBI can be permitted to produce the CDs which were inadvertently not produced along with the supplementary chargesheet. Even if the documents or things which were inadvertently not produced along with the chargesheet are allowed to be produced, the decisions in the cases of Sidharth Vashisht and V K Sasikala will have no application.”
The learned counsel for the CBI has also relied upon a decision of the Hon’ble Supreme Court in the case of State of Gujarat v. Dilipsinh Kishorsinh Rao: (2023) 17 SCC 688, wherein it was held that: -
“10.It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.
* * *
12.The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227CrPC is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.
13.The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659] and State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338] has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.”
In Sarla Gupta and Anr. V. Directorate of Enforcement: (2025) 7 SCC 626, the Hon’ble Supreme Court has held that: -
“29.Thus, after taking cognizance, the process issued on the complaint under Section 44(1)(b) of the PMLA to the accused must be accompanied by a copy of the complaint. If any documents are annexed or produced along with the complaint on the basis of which cognizance is taken, it follows that even the copies of those documents must be supplied to the accused. The copies of the documents annexed to the complaint or produced in the complaint cannot be separated from the complaint, as they form a part of the complaint. These are the documents on the basis of which cognizance is taken by the Special Court. Therefore, the accused is entitled to receive copies of the same as a matter of right. The same principle will apply to the documents annexed to or produced with supplementary complaints. If the Special Court has recorded the statements of the complainant and witnesses, if any, in accordance with Section 200 CrPC (Section 223 of the BNSS), the accused must get copies thereof as the order of cognizance is passed based on the said statements. * * *
35.Both Sections 207 and 208, on the face of it, do not specifically apply to a complaint under Section 44(1)(b) of the PMLA. But, there is no reason why the principles laid down under Sections 207 and 208 should not be applied to a complaint under Section 44(1)(b) of the PMLA. The provisions are consistent with the principles of fair play. The object of the provisions is to protect the rights of accused persons. An accused is entitled to a fair trial as he has the right to defend himself. That is the essence of Article 21 of the Constitution. Therefore, once cognizance is taken on the basis of a complaint under Section 44(1)(b) of the PMLA, the learned Special Judge must direct that along with the process, a copy of the complaint and the following documents must be provided to the accused:”
What the Hon’ble Supreme Court has held in Sarla Gupta (supra), is that the accused is entitled to receive copies of the documents annexed with the complaint to defend himself. However, this principle would apply to the documents which are annexed with the complaint and produced before the trial court. In the present case, the documents which were available on the record of the trial court have already been provided to the accused petitioner and the only documents which have not been provided to her are the documents which have been demanded by her but are presently not available on the record of the trial court. Neither the CBI nor the court has denied that copies of the documents will be provided to the accused petitioner as and when the same is available. Therefore, the aforesaid principle would not apply to the facts of the present case.
What the court is required to examine at this stage is whether the trial should be stopped from proceeding merely because the recordings of telephonic conversations have been sent to CFSL for obtaining expert’s report. The learned counsel for the petitioner contends that it is the petitioner’s statutory right to get the copies of all the relied upon documents and as the recording of telephonic conversations are relied upon by the opposite party- CBI, copies of the same is mandatorily required to be provided to the petitioner and in absence thereof, the trial court cannot proceed to frame the charges.
Section 230 BNSS requires the Magistrate to furnish the accused with copies of the police report and of the documents or relevant extracts forwarded to the Magistrate along with it. The obligation thus attaches to the prosecution material that has actually been filed before the court. The original recordings of the telephonic conversations have been sent to CFSL for expert opinion and till date the same have not been filed before the trial court. Any material which has not been filed on the trial Court’s record cannot be supplied to an accused person. What has been filed are the transcripts of those conversations and copies of the transcripts of the conversations have already been supplied to the petitioner. The CBI has also undertaken to supply copies of the recordings of conversations once they are received back from CFSL and the trial court has directed it to do so without delay. Meanwhile, the petitioner has been permitted to listen to the investigation copy and compare it with the transcripts. In these circumstances, the temporary non-supply of copies of the recordings of conversations, which are not in the custody of the CBI or the court, causes no prejudice to the petitioner.
Section 261 BNSS, which requires the Magistrate to satisfy himself that the provisions of Section 230 BNSS have been complied with. The compliance contemplated under Section 230 BNSS is with regard to the documents which have been forwarded to the Magistrate and are available on the record of the court, which has been done in the present case and it has already been discussed elaborately in preceding paragraphs. Therefore, the the provisions of Section 261 BNSS have not been violated in the present case.
Further, the prosecution is also not precluded from placing additional material on record after filing of the chargesheet, as per the law laid down in R.S. Pai and Sameer Sandhir (supra). The recordings and the CFSL opinion, when received, can be brought on record as additional material, and copies can thereafter be furnished to the petitioner. Since the petitioner will receive them in due course, and will have the opportunity to examine them before evidence is led, no prejudice will be caused by the present non-supply of the same to her.
At the stage of consideration an application seeking discharge or at the stage of framing of charges, the trial court is merely required to examine whether on the basis of the material produced by the prosecution, a prima facie case is made out against the accused person. The probative value of the material, including the question whether the voices in the recordings are those of the persons alleged, is not to be gone into at this stage. The transcripts of the conversations are already on record and have been supplied to the petitioner.
Inherent powers recognised by Section 528 BNSS can be invoked to give effect to an order under the Sanhita or to prevent abuse of the process of the court or otherwise to secure the ends of justice. One of these conditions must be made out on the facts of the case, whereas none of the conditions is present in the present case warranting interference by this Court in exercise of its inherent powers.
In view of the foregoing discussion, I find no error or illegality in the impugned order dated 17.08.2026 passed by the learned Special Judge, Anti-Corruption, CBI, Court No. 5, Lucknow in Case no.1117 of 2026. The present petition lacks merits the same is dismissed.