Sudhir Agarwal, J.These two applications u/s 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Code") have come up against a common order dated 18th June, 2013 passed by Sri S. Lal, Additional Sessions Judge/Special Judge (Anti Corruption) C.B.I., Ghaziabad (hereinafter referred to as "CBI Court"), disposing of applications No. 402Kha, 405Kha and 407Kha preferred by applicants-accused (hereinafter referred to as "applicants") u/s 233 read with section 91 of the Code, summoning certain documents and witnesses. CBI Court has rejected application No. 402Kha and 405Kha in entirety but has allowed application No. 407Kha in part and has rejected the same partly. Criminal Misc. Application No. 20215 of 2013 has assailed CBI Courts order dated 18th June, 2013 in so far as it has rejected application preferred on 11th June, 2013 u/s 233 read with section 91 of the Code for production of certain documents and Criminal Misc. Application No. 20216 of 2013 has been preferred in so far as CBI Court has partly rejected application No. 407Kha with respect to summoning of certain witnesses.

2. The applicants, in the past, have travelled to this Court as also Apex Court on several occasions at different stages before the trial and thereafter and detailed facts, which have ultimately given rise to the trial in question are already contained in those orders, therefore, for brevity, I shall not mention those facts in detail and would confine myself only to the barest facts, which may be necessary to understand issues raised in present applications.

3. The applicants are facing trial for charges of committing murders of their own daughter, Arushi Talwar, and a domestic help, Hemraj, in their house in Session Trial No. 477 of 2012 (CBI v. Dr. Rajesh Talwar and others). The incident took place in the night of 16.5.2008. In the morning of 16.5.2008, 14 years young girl Arushi was found murdered in her bed room. Apparently, it was reported first by accused-applicants lodging a first information report at Police Station Sector-20, NOIDA at about 10.00 A.M. on 16.5.2008. The Police registered report as Case Crime No. 695 of 2008, u/s 302 I.P.C. against unknown persons. The post-mortem was conducted at about 12.00 noon, on the same date. After a couple of days, Hemraj, the Domestic Help, who was initially a prime suspect of the crime, was also found murdered. His body was discovered on 17.5.2008 at the terrace of the house of accused-applicants. His post mortem was conducted at about 9.00 P.M. On 17.5.2008, revealed that both the deceased were murdered almost around the same time. The investigation, initially conducted by local Police, was transferred to C.B.I. by Notification dated 293.2008 issued by State Government pursuant whereto. Central Bureau of Investigation (hereinafter referred to as "CBI") registered first information report as Case Crime No. RCI(S)/2008/SCR-III/CBI/New Delhi. During investigation CBI arrested several persons including one of the accused-applicants, Dr. Rajesh Talwar, as suspect of the crime, and all of them were granted bail.

4. Ultimately, a closure report was submitted by CBI before Special Judicial Magistrate, CBI, Ghaziabad (hereinafter referred to as "SJM (CBI)") with a prayer that in view of shortcomings in the evidence, investigating agency opined that sufficient evidence was not available to prove offence u/s 302/201 I.P.C. against Dr. Rajesh Talwar and other co-accused beyond reasonable doubt, hence, the case may be allowed to be closed for want of sufficient evidence. The closure report was appended with a list containing names of 140 witnesses and also the list of documents and articles collected during investigation. Notice being issued to accused-applicant, Rajesh Talwar, in his capacity of first informant, a protest petition dated 25.1.2011 was filed by him before SJM (CBI) with the prayer for rejection of closure report and a direction to CBI to investigate the matter further. The SJM (CBI) forming opinion after perusing the entire record that closure report is not acceptable, summoned applicants to face trial for double murder. The aforesaid order dated 9.2.2011 passed by SJM (CBI) in Special Case No. 1 of 2011 was assailed by one of the accused namely Dr. (Mrs.) Nupur Talwar, in this Court in Criminal Revision No. 1127 of 2011. This Court (Honble B.K. Narayana, J.) dismissed the revision vide judgment dated 18th March, 2011 reported as Dr. (Mrs.) Nupur Talwar Vs. C.B.I. and Another, . The matter was taken in appeal to Supreme Court in Criminal Appeal No. 68 of 2012 but the same was also dismissed on 6.1.2012 with observation that in the trial, which the accused persons will face, they should not be prejudiced by any observations made by the Courts. It was also said that accused must be given all opportunities in the trial, they are to face, and the trial shall be held expeditiously. The judgment is reported in Dr. Mrs. Nupur Talwar Vs. C.B.I., Delhi and Another, .

5. Another Criminal Misc. Application No. 8055 of 2011 u/s 482 of the Code was preferred by Dr. Rajesh Talwar with a prayer to quash order dated 18th February, 2011 passed by SJM (CBI) issuing bailable warrant against him. This application was dismissed by this Court (Honble Ravindra Singh, J.) vide judgment dated 18th March, 2011 as Dr. Rajesh Talwar Vs. CBI Delhi and Another, He also preferred SLP (Criminal) No. 2981 of 2011, which was disposed of on 9th January, 2012, which order is reported in (2012) 4 SCC 245 [LQ/SC/2012/31] . Since, during pendency of the matter before Apex Court, Dr. Rajesh Talwar was enlarged on bail, the Court directed that he shall remain on bail but would not leave local police station without obtaining permission of Magistrate. The Court also directed him to appear before SJM (CBI) on the next date fixed for hearing.

6. Then came a transfer petition i.e. Transfer Petition (Crl.) Nos. 45 of 2012 and 46 of 2012 at the instance of both the aforesaid applicants. Both these petitions were considered together and by a common judgment dated 2nd March, 2012 (the judgment is reported in Nupur Talwar Vs. Central Bureau of Investigation and Another, , the same were dismissed. Being unsatisfied, the two accused filed Review Petition No. 85 of 2012 but the same was also dismissed vide judgment dated 7th June, 2012 (reported in (2012) 11 SCC 465).

7. The Magistrate committed the case for trial by learned Additional Sessions Judge i.e. CBI Court, who framed charges under sections 302, 201 and 34 IPC against both the applicants, on 25th May, 2012. While prosecution witnesses commenced their testimony, applicants filed application dated 20th November, 2012 u/s 91 of the Code seeking direction that certain documents including scientific tests done by CBI on some other persons, namely Krishna, Vijay Mandal, Rajkumar, during investigation, and other documents collected, should be placed on record as they are the exculpatory documents and in absence thereof, applicants shall not have a fair opportunity of defence in the trial. This application was rejected by CBI Court vide order dated 3.12.2012, holding that, at that stage, there was no justification to summon those documents. There against also, applicants came to this Court, in Criminal Misc. Application No. 44063 of 2012 u/s 482 of the Code and the same is pending.

8. In between, there is one more application No. 35303 of 2012 filed u/s 482 of the Code, against order dated 29th September, 2012 passed by CBI Court on an application moved by prosecution seeking permission to place certain documents on record. This application was dismissed by Honble Sunil Hali, J. vide judgment dated 24th January, 2013 (reported in 2013 (2) ALJ 119).

9. The prosecution closed its evidence under sections 230 and 231 of the Code, and thereafter, commenced recording of statement of accused u/s 313 of the Code. At this stage, applicants moved Trial Court by filing an application to summon and examine 7 witnesses left over by prosecution, besides the main Investigating Officer. This application was purported to be u/s 311 of the Code. The Trial Court rejected the same by order dated 4th May, 2013 where against applicants directly approached Apex Court in Special Leave to Appeal (Criminal) No. ... of 2013 but subsequently, when found Apex Court, not inclined to entertain the same directly, got it dismissed as withdrawn, with following order, passed on 13th May, 2013:

We are not inclined to entertain the SLP against the order of the learned Sessions Judge.

Learned Counsel for the petitioner seeks permission to withdraw the permission to file SLP with a liberty to approach the High Court. Permission is granted. In case the matter is mentioned for being taken up out of turn, we request the High Court to consider it sympathetically.

Application for permission to file SLP is dismissed as withdrawn accordingly.

10. The applicants then came to this Court in Crl. Misc. Application No. 16946 of 2013, filed u/s 482 of the Code, and this application was also dismissed by Honble R.D. Khare, J. vide judgment dated 21.5.2013. This order was also assailed before Apex Court in Special Leave to Appeal (Crl) No. 4759 of 2013 but this petition was dismissed by Apex Court on 28th May, 2013, passing the following order:

We find no merit in this petition. The SLP is, accordingly, dismissed. However, the petitioners are at liberty to raise all permissible legal and factual issues before the Trial Court at the appropriate stage.

11. As already said, the prosecution closed its evidence on 24th April, 2013 after examining 39 witnesses out of total 141, cited along with final report. Now defence witnesses was to be adduced by applicants and, at that stage, an application purported to be u/s 233 read with section 91 of Code was filed for production of certain documents, on 11th June, 2013, and, another on 12th June, 2013 for summoning certain witnesses, u/s 233 of the Code. The impugned orders have been passed by CBI Court on these applications which are impugned in these two applications filed u/s 482 of the Code.

12. Sri Tanveer Ahmad, Advocate assisted by Sri Vikram D. Chauhan, Advocate, have advanced their submissions, at great length, on behalf of applicants, while Sri Anurag Khanna, Advocate assisted by Sri R.K. Saini, Special Public Prosecutor, have replied the aforesaid submissions, with vehemence, on behalf of CBI.

13. It is contended by Sri Tanveer Ahmad that documents summoned by them were those collected by CBI, and, are in the nature of exculpatory, for the accused. Non production of such documents would result in denial of fair trial to accused persons. Referring to the nature of documents, which included scientific tests reports like Narco test etc., he contended that same are admissible in evidence u/s 27 of Evidence Act, 1872 (hereinafter referred to as "Act, 1872") in view of the law laid down in Smt. Selvi and Others Vs. State of Karnataka, . He said that voluntary scientific examination reports in the nature of Narco analysis test, Brain Mapping Test, Polygraph Test etc., are the documents in possession of CBI and these documents show complicity of third person(s) in the alleged murders and, therefore, the same are in the nature of exculpatory, to strengthen defence of applicants, hence, are necessary for giving a fair opportunity of defence to the applicants. He alleged that, founded on statements of persons subjected to the aforesaid scientific tests, a weapon i.e. Khukhri was discovered from the room of one such person and according to earlier Investigating Officer, the said weapon was used in double murder and these facts were admitted by earlier Investigating Officer of CBI as also the alleged third parties, in various applications, replies etc., hence, those were the documents relevant to show complicity of third person in the aforesaid offence, hence, their production is must, so as to cause an effective opportunity of defence to the applicants. It is contended that Trial Court has rejected application dated 11th June, 2013 for summoning of documents on wholly irrelevant and illegal reasons which are impermissible in law, vitiating the impugned order.

14. I have heard learned Counsels for parties and perused the voluminous pleadings and also the catena of decisions cited in support of rival submissions.

15. Sri Ahmad urged that section 233 confers a right upon accused to have evidence in the form of documents or oral either summoned to the Court or brought by himself and the only fetter in this exercise was the one covenanted in section 233 of the Code, i.e. if it is vexatious or to delay, or misuse of judicial process and not otherwise. He has placed reliance on Hakim Singh and Others Vs. State of U.P. and Another, Mahe Aalam Vs. State of Uttar Pradesh, and Dinesh Chandra Srivastava Vs. State of U.P., .

16. Similarly, with regard to summoning of witnesses, he urged that cogent and relevant reasons were detailed in the application for summoning of witnesses but Trial Court in rejecting application, partly, with respect to some of such witnesses, has committed a gross error of law, which has resulted in denial of fair opportunity of defence/trial to the applicants.

17. Per contra, Sri Anurag Khanna, learned Counsel of CBI contended that in respect of same documents, earlier also applicants came to this Court but failed and the judgment stood affirmed by Apex Court, the present exercise is nothing but an attempt on the part of applicants to delay trial as much as possible. He argued that applicants have made a mockery of the system by dragging prosecution to various courts, almost at every stage of proceedings either before Magistrate, or before Trial Court, and having failed to gain anything from such frequent litigation, still undeterred are continuing with their efforts, evident to prove lack of bona fide to have trial conducted expeditiously and fairly. Every attempt and effort as also opportunities have been availed by them to stall proceedings before Court below. He said that documents sought to be summoned by applicants are neither admissible in evidence nor even otherwise are relevant and, in any case, prosecution cannot be compelled to produce all those documents before the Court below and therefore, the Trial Court has rightly rejected their applications by a very well discussed and reasoned order. The same thing applies to partial rejection of application with respect to some of witnesses whom Trial Court found that either their deposition was wholly unwarranted, irrelevant or otherwise not permissible for valid reasons stated in the impugned order.

18. Before proceeding further it would be appropriate to look at the documents, which have been sought to be summoned by applicants, from the possession of CBI, as also the witnesses, denied by CBI Court.

19. The application No. 405Kha (1-14) contains a prayer that the documents mentioned in paras 9 to 12 of the application be placed on record by Investigating authorities.

(a) Para 9 mention the following documents:

(i) Narco-analysis test reports and CD of Krishna conducted at FSL Bangalore;

(ii) Narco-analysis test reports and CD of Rajkumar conducted at FSL Bangalore;

(iii) Narco-analysis test reports and CD of Vijay Mandal conducted at FSL Bangalore;

(iv) Brain mapping test of Rajkumar conducted at FSL Gandhinagar;

(v) Brain mapping test of Krishna conducted at FSL Gandhinagar;

(vi) Brain mapping test of Vijay Mandal conducted at FSL Gandhinagar;

(vii) Lie detector, polygraph test reports of Krishna, Raj Kumar and Vijay Mandal conducted at CFSL New Delhi, FSL Bangalore, FSL Gandhinagar;

(viii) Psychological analysis test reports of Krishna, Raj Kumar and Vijay Mandal conducted at AIIMS, FSL Bangalore, FSL Gandhinagar;

(ix) The Narco-analysis test, brain mapping test, polygraph test and the psychological tests done at AIIMS, CFSL New Delhi and at FSL Gandhinagar of the accused Dr. Rajesh Talwar and Mrs. Nupur Talwar. The aforesaid tests and their reports are clearly exculpatory evidence which also need to be placed on record in accordance with law.

(x) The written opinion/report and its annexures and other related documents dated 31.7.2008 of the post-mortem doctors i.e. Dr. Sunil Dohre and Dr. Naresh Raj regarding inspection of the then murder weapon (Khukhri) sent to them by the CBI.

(b) Para 10 states that Investigating Officer/Prosecution should place on record all details, memo, reports etc. of sound simulation test conducted at the residence of the accused persons which was admitted by PW 37 Vijay Kumar in this testimony.

(c) Para 11 requires call details record of Mobile No. 9911661027, 9899287501 and land line No. 6479896 installed at Medicross Dental Clinic, GF No. 17, Parsavnath Plaza, Sector 27, Noida.

(d) Para 12 mentions the documents with regard to DNA analysis:

(i) All Genotype Plots at different heights pertaining to aforesaid exhibits:

(ii) Tabular chart of data pursuant to analysis regarding aforesaid exhibits pertaining to following headings (a) Dye/sample peak; (b) sample file name; (c) marker; (d) Allele; (e) size; (f) height; (g) area; (h) data point.

20. Vide application No. 407Kha, applicants have requested for summoning witnesses named in para 2.1 to 2.13. The Trial Court has allowed the application in respect to the witnesses mentioned in para 2.1 to 2.3; 2.6 to 2.9 and for rest, the application has been rejected. The rejection, therefore, is in respect to Dr. Richa Saxena Dr. (Mrs.) S.L. Vaya, Nodal Officer M/s. Bharti Airtel Ltd., Nodal Officer M/s. Vodafone Ltd., Registrar Honble Supreme Court of India, Sh. Arun Kumar.

21. It cannot be doubted that applicants earlier approached this Court and the higher Court, insisting upon for further investigation or to place on record before the Courts below the documents, most of which have been sought to be summoned by means of applications, rejected vide impugned orders.

22. One of the important questions, which would have to be answered by this Court is, whether the earlier orders would constitute a legal bar against the applicants in seeking production of aforementioned documents through an application, u/s 233(3) of the Code, or whether the earlier orders would attract some kind of legal bar, like, estoppel, waiver, acquiescence or a principle akin to res-judicata.

23. It cannot be doubted that the principles applicable in civil proceedings, as such, are not attracted in criminal proceedings. However, if the Court finds that either of the parties is misusing the process of law or there is gross injustice or miscarriage of justice etc., it can always pass appropriate order(s) to check and prevent it or to do justice.

24. The basic concept in criminal jurisprudence is that a person, accused of an offence, must be tried giving ample opportunity of defence and that is how it contemplates a fair and impartial trial, and, if in such proceedings, the guilt is proved, punishment prescribed in law must be inflicted upon the accused. In this process, none of the parties shall be allowed to misuse procedural law as a tool to cause miscarriage of justice. If the Court finds such a situation, it is not powerless to pass appropriate orders. After reporting commission of an offence to the investigating agency and completion of investigation, there are two stages, one, pre-trial proceedings; and second, obviously, trial itself. In other words, after the factum that an offence has been committed is brought to the notice of investigating agency and the matter is registered, the Code contemplates two kinds of proceedings; one is investigation and another is judicial proceeding. Sometimes, where the Police fails to respond to register an information regarding a crime, power has also been conferred upon Magistrate or the Court to make enquiry into the matter. From the definition clause of the Code, i.e. section 2, I find four relevant terms, which are defined as under:

2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"

"(g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

(i) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath;

25. The term "judicial proceedings" includes within itself certain proceedings which are pre-trial also. The power of investigation is obviously with Police. Generally, when the investigation is over, Police submits report to the Magistrate. Where the Police finds that there is sufficient evidence or reasonable ground, report contains a draft charge-sheet, whereupon, Magistrate, after application of his mind, takes further action and if he takes cognizance to proceed for trial, cases where the offence is triable by Magistrate, it shall proceed, else it shall commit the case to Sessions Court for trial. However, where the Police finds insufficient evidence or lack of substance to go for trial against a person, it may request the Magistrate to accept report of closure of the case whereupon the Magistrate, after application of his mind, would decide whether to accept such closure report or to direct for further investigation or otherwise.

26. In the present case, the entire record of investigation was placed by investigating agency, namely, CBI before the Magistrate, along with its report, requesting for closure of case on the ground of insufficient evidence, to go for trial of anyone. The Magistrate, however, after going through the said record, took the view that there was enough evidence to proceed against the accused-applicants, namely, Dr. Rajesh Talwar and Dr. (Mrs.) Nupur Talwar in respect of offence u/s 302/201 I.P.C. and consequently rejecting request of CBI for closure of case and also that of accused applicant for further investigation, he issued process after taking cognizance.

27. One of the applicants namely Dr. (Mrs.) Nupur Talwar challenged the aforesaid summoning order in Criminal Revision No. 1127 of 2011 and, admittedly that was a stage before trial. The issues which have been considered by this Court in the aforesaid Revision were not related to the right of an accused for adducing evidence in defence at the stage of a trial where prosecution evidence already concluded. The Court was called upon to consider the power of Magistrate to take cognizance and issue process against the accused by rejecting request of investigating agency regarding closure of case as also the request of first informant about further investigation. This is evident from the observations of this Court formulating question up for consideration therein, as is evident from following:

Whether the Court below was justified in refusing to order further investigation has to be examined in the backgrounds of the facts of this case and the parameters laid down by the Apex Court in its various decisions within which a Court can exercise its power to direct further investigation.

28. The Court then held that looking to various aspects, Magistrate rightly did not order for further investigation. Further the Court considered whether a person, who was not arrayed as an accused either in F.I.R. or during investigation, could have been issued process, inasmuch the Revision was filed by Dr. (Mrs.) Nupur Talwar, who was neither named in F.I.R. nor during investigation, CBI, at any point of time, treated her, suspect of crime. Here also this Court decided against her, holding, that the Magistrate can proceed against a person, though he/she is not named in Police report to be an accused person, if he is otherwise satisfied that there existed prima facie ground of issuing process against him/her. It is in this regard, the Court said:

On receiving the police report the Magistrate may take cognizance of the offence u/s 190(1)(b) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report u/s 178(2) will contain the facts discovered or un-earthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act u/s 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.

29. The power of Magistrate to issue process against Dr. (Mrs.) Nupur Talwar after considering report submitted by CBI was upheld in para 14 of the judgment, by applying Apex Courts decisions in Abhinandan Jha and Others Vs. Dinesh Mishra, H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), Jagdish Ram Vs. State of Rajasthan and Another, and Uma Shankar Singh Vs. State of Bihar and Another, . The issue up for consideration in the Criminal Revision, therefore, was entirely different and the stage at which it was raised was also in a different context. I, therefore, find nothing therein to prevent the accused-applicants to proceed with their applications for certain evidences, documentary/oral, u/s 233(3) which has come up at the stage when almost half of the trial is over, namely, prosecution evidence is over and the defence evidence has commenced.

30. Similarly, in Criminal Misc. Application No. 8055 of 2011, the proceedings initiated at the instance of Dr. Rajesh Talwar, u/s 482 of the Code, was also a pre-trial stage, inasmuch as he had come to this Court seeking quashing of process issued by Magistrate. A closure scrutiny of the judgment shows that Dr. Rajesh Talwar has basically come against the order of bailable warrant of Rs. 20,000/-, issued against him. It was contended that he was already enlarged on bail and without cancelling the bail, order could not have been passed issuing bailable warrant against him. It is this submission, merit whereof was considered by this Court (Honble Ravindra Singh, J.). This issue was analysed with reference to Sections, 167, 169, 170, 173, 437 and 439 of the Code. The Court held that earlier order was referable to section 169, having been passed during investigation, and, being a contingent/conditional order, cannot be termed as regular bail, hence, cannot be given status of an order passed under sections 437 and 439 of the Code, releasing an accused on bail, hence, the order passed by Magistrate issuing bailable warrant of Rs. 20,000/- was neither illegal nor unauthorized. Here also, I do not find consideration of an issue which has now come up before this Court so as to blame the accused applicants that having repeatedly failed in their earlier frequent litigations, still they are raising the same issues and for that reason alone, should be ousted, as has been suggested and argued by Sri Anurag Khanna, Advocate.

31. What I have said earlier, is fortified from the fact that Supreme Court, while rejecting appeal against this Courts order dated 18.3.2011, itself confined to the issue, whether the Magistrate has power to issue process to the accused applicant after considering closure report of CBI or not, and, while affirming the same, made it very clear that the accused must be given all opportunity in the trial they are to face. It also took care by observing that whatever deliberations one can find in the orders, the same would not be construed so as to cause any prejudice to the accused person in the Trial.

32. The second litigation before Supreme Court was the Transfer Petition and that was primarily on the ground of convenience and personal security. It was founded on an incident where Dr. Rajesh Talwar was attacked by a stranger to the proceedings, namely, one Utsav Sharma, with a cleaver knife. The incident occurred on 25.1.2011 in the Court campus at Ghaziabad. Dr. Talwar suffered certain injuries and had to undergo some re-constructive surgery at Indraprasth Apollo Hospital, New Delhi. Here also it is evident that the petition was filed at a pre-trial stage, i.e., when the matter was pending before Magistrate inasmuch as there was a prayer for transfer of case from the Court of SJM (CBI), Ghaziabad to a Court of competent jurisdiction at Delhi or New Delhi. Transfer Petition was rejected observing that no ground for transfer is made out. I find nothing in the aforesaid order so as to construe anything against the accused-applicants in the context of the applications which have caused the impugned orders.

33. Third round litigation is also a pre-trial stage, which had arisen pursuant to a Review Petition filed by Dr. (Mrs.) Nupur Talwar seeking review of Apex Courts judgment dated 6.1.2012. It was endeavoured on the part of Review Petitioner, Dr. (Mrs.) Nupur Talwar, that the language of the order passed by Magistrate on 9.2.2011 gives an impression as if it is a final order on the culmination of trial. It was argued that it should be set aside since it contains various inferences, assumptions and conclusions, which virtually hold the summoned accused, guilty. Negativing this argument, the Court held that normally for taking cognizance and/or issuing process, no reason need be recorded at the time of framing charges against an accused. Then the Court examined as to what impelled Magistrate to give a detailed reasoned order for summoning the accused, in the case in hand. The Court noticed here at the distinguishing foundational facts in this case. Firstly, CBI submitted a closure report. Magistrate could have accepted the report and dropped proceedings but he chose not to accept CBIs request for closure. Then the Magistrate could have disagreed the report finding that there existed sufficient ground for proceeding further, and, having taken cognizance, could have issued process, which he actually did. There was a third alternative, i.e., directing for further investigation which he did not find useful, looking to the investigation record, already available before it. The Court said since the Magistrate took a view contrary to the request made by investigating agency, it was though not imperative, yet desirable and appropriate to record reasons for differing with the prayer and that is what he has done. CBI was entitled to know reasons for rejecting its request. Then there was another reason so much so that the first informant. Dr. Rajesh Talwar, was summoned as an accused. Meaning thereby the complainant himself was made an accused. Action of Magistrate reversed the position of adversaries. The party which was originally pointing finger was now sought to be pointed at. The complainant, obviously, would have desired to know reasons therefor. The next aspect was the fact that complaint, namely, Dr. Rajesh Talwar, himself had filed a protest petition requesting for further investigation. It was a peculiar case where both the parties, namely, the complainant as also the investigating agency, were pleading insufficient evidence though the ultimate prayer of both was different, yet the Magistrate found something else, namely, availability of sufficient material to proceed against two accused, and, consequently, issued process. This aspect on the part of Magistrate in all propriety needed an explanation and that is how Magistrate, in his wisdom, chose to pass a reasoned order for which neither he should or could have been blamed nor his action could be said to be otherwise invalid in law. The Court then proceeded to observe that whatever has been done by the Magistrate on the basis of material available before him, would make no difference for the reason that the case was triable by a Court of Sessions, u/s 209 of the Code and, therefore, role of Magistrate was limited of taking cognizance and issuing process. The observations and reasons given by Magistrate, therefore, were confined only to the question whether there was sufficient material to take cognizance and issue process or not. The Magistrate, in his wisdom, highlighted the reasons which have weighed with it in not accepting closure report as also the request for further investigation so that the same may be perused by the Court of Sessions. However, it is not necessary that the Court of Sessions would have viewed the matter from the same perspective as the Magistrate. Apex Court said that at the first instance, Court of Sessions shall consider the matter on its own and independently as to whether charges have to be framed or not. A Court, superior to the Magistrate, would have to examine independently all the issues within four corners of law without being influenced by the reasons recorded in the order issuing process. This is the responsibility of the Court of Sessions. The reasons contained in Magistrates order, thus, cannot curtail or influence the same i.e. the superior Court, so as to control it in any manner. The various observations made in the Magistrates order were also independently discussed by Apex Court in the light of above observations and then in paras 27 and 32 of judgment, it said:

27. The facts noticed in the foregoing paragraph and the impressions drawn thereupon by the Magistrate, are based on statements recorded u/s 161 of Code of Criminal Procedure (and in a few cases, u/s 164 of the Code of Criminal Procedure), as also, on documents and other materials collected during the course of investigation. Neither the aforesaid statements, nor the documents and materials taken into consideration, can at the present juncture be treated as reliable evidence which can be taken into consideration, for finally adjudicating upon the guilt or innocence of the accused. It is only when the witnesses appear in Court, and make their statements on oath, and their statements have been tested by way of cross examination; and only after the documents and other materials relied upon are proved in accordance with law, the same would constitute evidence which can be relied upon to determine the controversy. It is on the basis of such acceptable evidence, that final conclusions can be drawn to implicate the accused. That stage has not yet arisen.

32. Just as in the case of the reasons depicted in the order of the Magistrate (based on the statements recorded during the course of investigation and the documents and other materials placed before her), the factual submissions advanced at the hands of the learned Counsel for the petitioners (noticed in the foregoing paragraph), cannot be placed on the pedestal of reliable evidence. It is only when statements are recorded in defence, which are tested by way of cross examination, and only after documents and material relied upon (in defence), are proved in accordance with the law, the same would constitute evidence, which can constitute a basis, for determining the factual position in the controversy. It is only on the basis of such acceptable evidence, that final conclusions can be drawn. That stage has not arisen.

34. The above observations are writ large to demonstrate the distinction of the issues as also the observations made confined to those issues, in various orders, and also the fact that by no stretch of argument, the scope of fair trial can be restricted, checked or influenced by those proceedings.

35. The two subsequent orders, obviously, though relate to a period when trial had proceeded, inasmuch as, the judgment of Honble Sunil Hali, J. in Criminal Misc. Application No. 35303 of 2010 was passed when an application for additional documents was filed by CBI in Trial Court which was allowed and there against the accused applicants came to this Court. In this context, this Court considered the procedure with respect to the documents which are to be filed by prosecution. Referring to section 173(5) of the Code, Court said:

Very essence of the provision make it incumbent upon the prosecution to refer to all those documents on which it relies. It cannot be permitted to place reliance on the documents which it did not propose to rely after filing report u/s 173(2) Cr.P.C. The Court while framing charges u/s 227/228 Cr.P.C. has to rely upon the report u/s 173(2) Cr.P.C. along with documents appended thereto. So while framing charges the Court has to examine the record submitted by the police to determine the complicity of the accused. At the stage of framing of charge the accused would be entitled to discharge on the basis of the documents which are before the Court. In essence the object is to put the accused to the notice regarding the incriminating materials which has come against him so as to allow him to prepare his defence in this case. By allowing this application, trial Court has prejudice the case of the applicants.

Law is well settled that after conclusion of the investigation, the police shall forward to a Magistrate empowered to take cognizance of the offence a police report on a form prescribed by the State Government. When such report is filed the police officer shall forward to the Magistrate along with report all the documents and relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. In case, if the police officer is of the opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for such request.

Section 207 Cr.P.C. enjoins upon the Magistrate to furnish without any delay to the accused copy of the police report, FIR, statement recorded u/s 161(3) Cr.P.C., confessional statement, if any recorded u/s 164 Cr.P.C., any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub section (5) of section 173 Cr.P.C.

There is clear mandate that the prosecution will furnish all those documents along with report on which it intends to rely and those documents are required to be given to the accused before the Trial in the matter is initiated."

Even it is assumed that clarificatory letter is additional document the Court can still entertain it. If it is shown that due to some mistake committed in not producing the relevant document at the time of submission of report. Normally documents gathered during investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate concerned but if there is some omission it would not mean that remaining documents cannot be produced subsequently.

Now what is being produced before the Court is clarificatory letter submitted by the expert that there is error in decoding the exhibits. This error has crept in due to mistake. Filing of this clarificatory letter as already stated herein supra cannot be construed to be filing of any additional documents or additional evidence. If some error has crept in by mistake the Court will always have the power to entertain any additional documents in this behalf. Mere filing of documents itself does not mean that the fact is exclusively proved. This mistake requires to be tested by an accused during the course of trial.

36. This order therefore also would not cause any hindrance to the applicants in prosecuting their applications 402Kha, 405Kha and 407Kha.

37. The last litigation is Criminal Misc. Application No. 16946 of 2013 wherein the accused-applicants insisted upon prosecution to examine some of the witnesses whose names find mention in the list of witnesses, filed along with closure report, before the Magistrate but the prosecution chose, in its wisdom, not to examine them during the course of trial. The issue up for consideration before this Court was, "whether an accused can force or compel the prosecutor to produce a particular evidence, documentary or oral, or examine a particular witness". This Court held that production of prosecution witness is sole and absolute discretion of public prosecutor. It is for him to state before the Court, at the very outset of the trial, as to by what evidences he is going to establish charge against the accused, who is to be examined, and, the sequence and manner of examination of its witnesses are all matters which lie in exclusive domain of the prosecutor with no fetters. No body, nor even the Court, can interfere with such an exercise of power by him. The Court further said:

Public Prosecutor in his responsibility is guided only by ethics of fair play and should execute his solemn duty faithfully as an officer of the Court, who is also expected to act as a prosecutor and not as a persecutor. Prosecution should make all endeavour to unfold its case in the chronological order in which incident had occurred and should examine all those witnesses justly and fairly who are essential to unfold its story. Prosecutor is expected to act in a manner which serves best course in achieving justice without being guided by the ultimate result. Since decades this aspect has been too well settled to be dislodged at this late hours.

38. It is in this context, the request of accused for necessitating examination of certain witnesses, as prosecution witness, was rejected, but the Court took care of observing:

I am of the view that the learned trial judge will afford fullest and fair opportunity to the accused to defend themselves in a fair and just manner and their apprehension of having an unfair trial is wholly unfounded. Learned trial Judge is reminded of the law laid down by the Apex Court that he is not to be a tape recorder and a silent recipient of evidences. It is his responsibility to conduct a free and fair trial and I hope and trust that learned trial judge will not abjure his responsibility.

(Emphasis added)

39. This judgment has attained finality after dismissal of SLP on 28.5.2013. Here also I find nothing which restricts or prevents the accused-applicants from seeking production of certain documents, which are in possession of prosecution, but required for defence by accused-applicants or summoning some witnesses provided Trial Court does not come to the conclusion that such request is vexatious or to cause delay, or, otherwise may defeat the ends of justice.

40. It is in these facts and circumstances, I have no hesitation in holding that the entire set of earlier litigations cannot be construed as if it has resulted in deciding certain issues regarding the evidences which are to be adduced by accused himself or to be placed on record by prosecution, if it is in their possession, inasmuch neither there was any stage for consideration of this aspect of the matter earlier nor the Courts, at any point of time, have looked into these aspects and, on the contrary, repeatedly have assured that the accused shall be given a fair trial with fullest opportunity of defence, short of any vexatious or delaying tactic on their part. The otherwise argument, therefore, advanced on behalf of respondent-CBI, I have no hesitation in rejecting. It is true that the accused-applicants have forced litigation upon prosecution very frequently and almost at every stage to this Court as also the Apex Court, but that by itself cannot be taken detrimental so as to affect their right of defence in a fair trial.

41. The right of an accused to have a fair and impartial trial cannot be doubted. This is constitutional right guaranteed tinder Article 226 of Constitution and a detailed procedure to accomplish constitutional goal have been provided by legislature through various provisions in the Code. It contains a complete procedure for conducting a criminal trial. Both the parties i.e. prosecution and accused are ensured to have a plain level procedure of trial without having any discrimination to either of them. The Court safeguards not only the rights of accused but also ensures that an accused should get a fair trial and not prejudiced or discriminated trial. The right given is not only a mere formality but is an essential part of "fair trial" in a criminal case.

42. In a criminal trial, the burden of proving everything essential for establishment of charge against the accused always lay upon the prosecution. Every person is presumed innocent until contrary is proved. Criminality is never to be presumed subject to statutory exceptions. However, criminal justice system provides safeguards of fair trial and innocence, till proved guilty, to an accused and it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. It is only then law and order can be maintained. It is the duty of Court to ensure not only that a innocent person is not punished, but also that a guilty person may not escape. Both constitute public duty of Presiding Officer of the Court, during the trial and learned Trial Court is expected to be vigilant, objective and should conduct its proceeding in correct perspective. If the prosecution attempts to misdirect Trial Court, there the Court should be more cautious and ensure that such attempt is not succeeded. The Court should not leave any stone unturned to do justice and protect interest of society as well and only thereupon the object of a fair trial can be achieved. The power of Trial Court to summon witness (s) or call for record etc. is not hampered except to the extent that if there is an attempt on the part of accused to delay the proceedings or defeat the ends of justice or there is any vexatious attempt on his part, the Court can always take care, but otherwise to reach at the true conclusion, it has enough authority and power within the Code, in various ways. In the last several decades and, in particular, the post constitutional era, umpteen authorities have come up dealing on this aspect of the matter, therefore, instead of burdening this judgment by referring to those authorities, suffice is to mention that there is no dearth of power in the Court so as to ensure a fair trial to the parties. If there is any mischievous attempt on the part of one or the other party, to misuse Courts endeavour to hold a fair trial, even such an attempt can be checked and defeated by the Court in a given case but there has to be an impartial, fair and objective consideration of the matter at every stage.

43. Here the entire edifice of the applications submitted by two accused is at the stage where prosecution evidence has already concluded and the defence has entered to adduce its evidence. I propose to consider the validity of order in question, whether it is within four corners of statutory provisions under which the said applications have been presented or not without being influenced by earlier litigations. Need not state that in the case in hand, this Court is concerned with one of the most graver and severe offences of murder triable by a Court of Session. After the prosecution has closed its evidence, entering upon defence is contemplated in section 233 of Code, which reads as under:

S. 233. Entering upon defence.--(1) Where the accused is not acquitted u/s 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or defeating the ends of justice.

44. Sub-section 3 thereof provides that accused, if applies for issuance of any process for compelling attendance of any witness or production of any document or thing, a Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or defeating the ends of justice. This provision has given a right to accused to request the Court for issuance of any process for compelling attendance of any witness for the purposes of examination or cross-examination or production of any document or other things unless Trial Court has sufficient reasons, which it is obliged to record in its order with a finding that such a request is vexatious or to delay the proceedings or to defeat the ends of justice.

45. Procedure for trial before Court of Session is provided in various provisions under Chapter XVIII of the Code. For other kinds of trial, procedure is governed by provisions under Chapter XX (for summons-cases triable by Magistrates) and Chapter XIX (warrant-cases triable by Magistrates) with which, presently this Court is not concerned. However, general procedure is same i.e. after accused appears in the Court, the particulars of the offence(s) of which he is accused, is/are told to him, and he is supposed to either plead guilty or has any defence to make or claims trial. Thereafter prosecution enters to adduce evidence to prove charges and then accused enters in defence and gives his oral and documentary evidence. The basic concept in various provisions under the Code detailing minute concept of procedure in trial is to ensure fair, impartial and due opportunity of defence to the accused. Articles 20 and 21 of the Constitution read with various statutory provisions of the Code ensure that prosecution as well as defence both stand on the same footing for equal opportunity to prove or support their case. Section 233 recognize an inherent right of defence which is an integral part of fair trial. Such a right is not mere formality but in severable constituent of a trial so as to satisfy and qualify requirement of fair trial. Every possible opportunity needs be afforded to accused to adduce evidence of his choice which he wants to produce in his defence. Whether a particular evidence will support his plea of innocence or not is a matter to be assessed, considered and judged by the accused at the time of adducing his evidence, and, Trial Court can consider its merit only when that stage is over and the Court has to pronounce its judgment. It shall not preempt the question whether a particular evidence will help the accused or not. That is not the authority of the Trial Court particularly when trial is at the stage of defence evidence.

46. In Mahe Aalam Vs. State of Uttar Pradesh, . this Court said:

The provisions of the Code not only safeguard the rights of the accused, they also ensure that accused gets a fair trial and ensure that if the accused wants to adduce any evidence in his defence, the Court shall ensure that he gets a proper opportunity to adduce the same.

47. If the prosecution is the master of selecting as to what evidence it should adduce before the Court, a similar right to accused cannot be denied and in this regard, he cannot be discriminated.

48. In Dinesh Chandra Srivastava Vs. State of U.P., this Court said:

the accused has a right to be provided an opportunity to adduce any evidence in support of his defence, if he is not acquitted u/s 232 of the Code. This right of the accused is a very valuable right which cannot be curtailed in any way. If the accused applies for issue of any process for procuring the attendance of any witness or for production of any document or thing, the Judge has to issue such process invariably.

49. In Kalyani Baskar Vs. M.S. Sampoornam the Court said that an accused cannot be convicted without opportunity of being given to her to present her evidence and if it is denied to her, there is no fair trial. A "Fair trial" includes fair and proper opportunities, allowed by law to prove ones innocence. Adducing evidence in support of defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be meticulously followed, and the Courts should be zealous in seeing that there is no breach of them.

50. In T. Nagappa Vs. Y.R. Muralidhar, the Court said:

An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India.

51. At this stage, I also find it expedient to remind that duty of prosecution is not only that a person, guilty of a crime, must be punished but also that no innocent person should suffer for the reason of mere weakness of his defence or otherwise. If the prosecution has material, enough to show, that an individual is, in fact, not guilty, a duty is caste on investigating agency to evaluate the two sets of documents; one incriminating and exculpatory to find out the truth. The same duty has to be discharged by Court also. Simultaneously, public prosecutor is not a person determined to get a successful prosecution irrespective of nature of evidence and its credential and evidentiary value etc.

52. In Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), the Court said that primary duty of a public prosecutor is to ensure that accused is punished. Yet his duty is further extended to ensure fairness in the proceedings and also to ensure that all the relevant facts and circumstances are brought to the notice of the Court for a just determination of truth so that due justice prevails. The responsibility of investigating agency as also that of Court is to ensure a fair investigation, which may not erode freedom of an individual, except in accordance with law.

53. It was also held in Sidhartha Vashisht @ Manu Sharma (supra), that one of the established facets of just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled under the scheme contemplated by the Code. The Court had gone to the extent of holding that concept of fair disclosure would take in its ambit not only furnishing of a document which the prosecution has relied upon, whether filed in Court or not, since that document should essentially be furnished to the accused, but, even when during investigation, a document is bona fide obtained by investigating agency and in the opinion of public prosecutor is relevant and would help in arriving at the truth, such a document should also be disclosed to the accused.

54. The purpose of above discussion is only to emphasise that a fair and impartial trial has within its ambit, as an integral part, an effective and adequate opportunity of defence to the accused. There cannot be any concept of technical compliance of such opportunity to the accused. The reason being that the settled principle of criminal jurisprudence is that burden of prove lies on prosecution and it has to prove a charge beyond reasonable doubt. It cannot succeed on the weakness or failure on the part of accused in adducing adequate evidence in his defence. The presumption of innocence and right to fair trial, are twin safeguards, available to accused in our prevalent justice system.

55. However, legislature has not left everything uncontrolled, unlimited and unbridled so as to help an otherwise mischievous accused to prolong trial to any extent, on the pretext of opportunity of evidence in defence or to otherwise misuse process of law. Section 233(3) provides a rider. If the Court finds that accused is demanding production or discovery of certain documents, which are in possession of prosecution or requesting for summoning of certain witnesses, which exercise is in vexation or to delay proceedings or is otherwise for abuse of the process, it can decline such request, but that can be done only by recording reasons and not otherwise. Meaning thereby. Trial Court has complete control over the trial so that scrupulous accused may not take undue advantage by abusing process in the name of fair trial and opportunity of defence, but, simultaneously. Trial Court must not come in the way of accused, in his attempt of adducing evidence in defence of his choice, and, at that stage of adducing evidence in defence, Trial Court should not indulge in the process of assessing evidentiary value of such evidence as that would amount to pre-empting and prejudging something at a premature stage, which is not permissible either in law or otherwise. These are the broad principles in the light whereof and particularly within the ambit of section 233(3) of the Code, I propose to consider whether Trial Court has dealt with applications of accused in passing the order impugned in these two applications filed u/s 482 of the Code, before this Court.

56. Application 402Kha seeks permission of the Court to allow perusal of original post-mortem report of the deceased Arushi and Hemraj as also the Golf stick, before Dr. R.K. Sharma, former Head of Department of Forensic Medicines, A.I.M.S., New Delhi is examined as a defence witness. It is on record that copies of post mortem report were already made available to accused-applicants and, therefore, perusal of original reports was found unnecessary and redundant. So far as the inspection of golf stick is concerned, CBI Court said that the defence witness can always do so while deposing his statement in the Court. I do not find any patent illegality, irregularity or irrationality in this part of the impugned order and, therefore, rejection of aforesaid application cannot be faulted.

57. Now coming to the next Application 405Kha, the documents mentioned at Sl. No. I to VIII are narco-analysis test reports, brain map test reports, lie detector/polygraph test reports and psycho analysis test reports of Krishna, Rajkumar and Vijay Mandal. None of them, admittedly, is facing trial.

58. Trial Court has considered applications 405Kha and 407Kha by observing that summary of principles laid down in various legal authorities is that accused should be given opportunity of defence in a fair trial but if evidence, proposed to be adduced in defence, is not relevant or application is in vexation or to delay or to defeat process of justice, such an application cannot be accepted. Here observation of Trial Court that if the evidence proposed in defence is not relevant is in grey area. If what is said can be covered in the three conditions mentioned in section 233(3) i.e., if the application is made for the purpose of vexation or delay or defeat the ends of justice, only then it would be right in such observation, otherwise, it amounts to adding something which is not otherwise provided by legislature in the aforesaid provision, which have been considered by Trial Court while passing the impugned order.

59. To my mind, the term "relevant" would mean if a document or witness, sought to be summoned, which is ex facie inadmissible in evidence or is wholly irrelevant to the matter, such an application would come within the terms "vexation" and "delay" and thus can be turned down by the Trial Court and not otherwise.

60. It is also material to notice, when a Court of Session is considering a charge of murder, the application of accused u/s 233(3) should not be rejected lightly. The approach of Trial Court should not show any tilt in favour of either of the parties and instead, it must give equal treatment for the purpose of adducing evidence as well as for the purpose of giving weightage to the evidence adduced by both the parties at the time of its assessment as both will stand on the same footing. (See Anil Sharma and Others Vs. State of Jharkhand, .

61. Sri Tanveer Ahmad, learned Counsel for the applicants stated that though the test reports like Narco analysis, Brain Mapping, Lie Detector, Psycho Analysis etc. of Krishna, Rajkumar and Vijay Mandal may not be termed as their confession, yet scientific examination would be admissible u/s 27 of Act, 1872 in view of the law laid down in Selvi and others (supra), in particular para 264 of the judgment.

62. I have gone through the aforesaid judgment in detail. I find that question of admissibility of aforesaid documents as evidence as such was not in issue therein. The Apex Court considered whether a person can be required to undergo such test and whether it is permissible in law or not. Holding that such test if volunteered by the person concerned, may be allowed to undergo. In that context, Apex Court said that the information/material discovered as a result of such test report, in such a case, if so qualify and satisfy requirement, of section 27 of Act, 1872, to that extent information or the fact discovered may be admissible but not otherwise.

63. In the present case, in the context of the documents mentioned at serial Nos. 1 to 8 in Application No. 405Kha, though the Counsel for applicants vehemently contended that these documents are admissible in evidence u/s 27 of Act, 1872, but to my mind, the submission lacks substance. When confronted with a situation as to how the above documents, he had sought to be summoned, are admissible in evidence in the trial in question, Sri Ahmad admits that in case the documents in question do not come within the ambit of section 27, they shall be wholly irrelevant, inadmissible and in that case rejection of application by Trial Court in respect to such documents, cannot be faulted. It leads to this Court to consider section 27 of the Evidence Act which read as under:

27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

64. This section has a limited scope. The requirement or condition for application thereof may be crystallised as under:

(i) Consequent to the information given by the accused, it led to the discovery of some fact stated by him.

(ii) The fact discovered must be one which was not within the knowledge of police and the knowledge of the fact was for the first time derived from the information given by the accused.

(iii) Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information.

(iv) The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e., the knowledge of the accused, of the place where the object was produced and the knowledge that it was there.

(v) only such portion of the information as is distinctly connected with the said discovery is admissible.

(vi) The discovery of the fact must relate to the commission of some offence.

65. This provision, in effect, is like a proviso to sections 25 and 26 of Act, 1872. Ordinarily, confession caused by inducement, threat or promise is inadmissible u/s 24 and the danger of admitting confessions made to police officers or to any other person when in police custody, has been provided against, in sections 25 and 26. However, if such confessions though improbably obtained are inadmissible in law, yet, they may lead to the discovery of facts, things, documents etc. in consequence of some information contained in the confession made by the accused in custody. Section 27 permits admissibility of such part of discovery of facts, things, documents etc.

66. As early as in Queen Empress v. Babu Lal, VI ILR (All) 509 (Full Bench) this Court said that two essential requirements for the application of section 27 are:

(i) The person giving information must be accused of an offence;

(ii) He must also be in police custody.

67. To the same effect is the observation made in Devi Ram Patt Ram Vs. The State, .

68. In S. v. Menon, AIR 1959 Bom 354 it was held that the accused of an offence u/s 27 does not mean that a person must be an accused when he gives information but would also apply to a person if he subsequently became an accused, when his statement is sought to be used against him.

69. To the same effect I find is the observations made in State of U.P. Vs. Deoman Upadhyaya, where the Court said that expression "accused person" in section 24 and "a person accused of an offence in section 25 have the same connotation and describe the person against whom evidence relating to information given by him is sought to be proved against him in a criminal proceeding.

70. In the Constitution Bench decision in State of Uttar Pradesh v. Deoman Upadhyaya, Attorney General of India (supra) the Court in para 17 of the judgment observed:

the expression "accused of any offence" is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by section 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.

71. In Aghnoo Nagesia Vs. State of Bihar, a three Judges Bench of the Court Sri R.S. Bachawat, J said:

The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession......except as provided by section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected u/s 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by section 26, unless it is made in the immediate presence of a Magistrate.

72. The Court also said in para 22 of the judgment that section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Similar is the view taken by a Division Bench of Delhi High Court in Hardayal Singh Vs. State NCT of Delhi, decided on 13th February, 2013, where, in para 7 of the judgment, the Court said:

The expression accused person" in section 24 and the expression "a person accused of any offence" have the same connotation and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in AIR 1939 47 (Privy Council) by the Judicial Committee of the Privy Council "section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation". The adjectival clause "accused of any offence" is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban.

73. In Kanhaiyalal Vs. Union of India (UOI), it was observed that it is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.

74. In Bheru Singh Vs. State of Rajasthan, of the judgment, the Court said:

16.A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of sections 24 to 30 of the Evidence Act and of section 164 of the CrPC deal with confessions. By virtue of the provisions of section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression "accused of any offence" in section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not inadmissibility of a confessional statement made to a police officer u/s 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence white in police custody. u/s 164 Cr.P.C. a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial.

17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by section 27 of the Evidence Act. The first information report recorded u/s 154 Cr.P.C. is not a substantive piece of evidence. It may be used to corroborate the informant u/s 157 of the Evidence Act or to contradict him u/s 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct u/s 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant u/s 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of section 25 of the Evidence Act.

75. Admittedly, Krishan, Vijay Mandal and Rajkumar are not accused in the trial going on before the Court below. Looking to the exposition of law, as discussed above, I find myself unable to agree with the contention of Counsel for the applicants that aforesaid documents at serial Nos. (i) to (viii) in para 9 would qualify to be admissible with, reference to section 27 of Act, 1872. The Trial Court has referred to the admission on the part of applicants-accused also that the aforesaid test reports are not admissible in evidence against these accused-applicants. Besides, I also find support from the observation of Apex Court in Selvi and others (supra), that the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test.

76. That being so, production of aforesaid test reports, which are not shown admissible in evidence for any purposes, I find no fault or error on the part of Trial Court in rejecting the same.

77. For the same reason that test reports as such are not admissible in evidence. I, therefore, find no reason to interfere with impugned order of Trial Court in so far as it has rejected the documents mentioned at item No. (ix), para 9 of application No. 405Kha.

78. Now coming to the documents mentioned at item No. (x), para 9 of application 405Kha, it is not in dispute that Dr. Sunil Dohre has already been examined as PW-5 and Dr. Naresh Raj has been examined as PW 36. Both have been examined and cross-examined. PW 5 (Dr. Sunil Dohre) has proved his report (paper No. 154A/2 to 154A/19) which is dated 6.9.2008. It is eight members committee report, wherein, he was one of the members. Similarly, PW-36 has proved report, Exhibit 17.

79. When the two witnesses have already been examined and cross-examined by accused-applicants also, without making any complaint that report/documents proved by said witnesses have not been supplied or made part of record of Court below, in absence of any further justification in the application itself, in my view, attempt is only to delay the proceedings and demand for the aforesaid documents is for the purpose of vexation and this has also been rightly rejected by Court below.

80. Then comes a document relating to sound simulation test, mentioned in para 10 of the application No. 405Kha. The Trial Court has rejected this part of request by observing as under:

Non summoning of Sound simulation test report too, will not affect rights of accused because such test report is only an expert opinion. Besides this, report is also not relevant for this case. Therefore no justification is found to summon it.

(English Translation by the Court)

81. This logic, I find quite strange and disturbing. Apparently, it goes beyond what is permissible on the part of Trial Court u/s 233(3) for rejection of a request made by accused for summoning of documents or witness. Whether a particular document shall influence rights of accused in his defence cannot be examined at this stage and it is not within the jurisdiction of Trial Court to make such assessment at this stage. It is true that sound simulation test report is nothing but an opinion of an expert but one cannot forget that despite ordinary rule of evidence that an opinion is not admissible in evidence, the only exception about opinion, which is admissible is that of an expert. Therefore, if the aforesaid test report is an opinion of an expert, admittedly, it was admissible in evidence. Whether it would help defence or not is a different aspect and could have been considered by Trial Court when it is required to assess evidence and pronounce judgment and not before that. The Trial Court has not rejected the aforesaid request on any of the grounds permitted u/s 233(3) of the Code. Therefore, to this extent, in my view, order impugned in these applications cannot sustain.

82. The next comes the Call Details Records of two mobile numbers and one land line number, mentioned in para 11 of application No. 405Kha. Here also, the Trial Court though admitted that certain officials from Tele Communication Services like Voda Phone Mobile Services Ltd., Bharti Airtel Ltd. and Tata Tele Services Ltd. were examined as PWs-19, 21 and 22, it has rejected the request on the ground that during cross-examination, questions in respect of call details of aforesaid mobile numbers and land-line numbers were not asked and this gap cannot be allowed to be filled now. He has further given a reason that even otherwise, non summoning of aforesaid documents shall not prejudice rights of accused in any manner since the mere summoning of document would not be sufficient unless they are proved in accordance with procedure prescribed in statute.

83. It cannot be doubted that these are electronic record and could have been proved following the procedure prescribed in Act, 1872, and, in particular, section 65(b). The accused-applicants in these circumstances have also requested for summoning of Nodal Officers of Bharti Airtel and Vodafone Ltd. in his Application No. 407Kha. The Trial Court has noted this fact but then it has further gone to say that since Nodal Officer of two other services i.e. Tata Tele Services and BSNL have not been requested to be summoned, therefore, summoning of Nodal Officers of only two companies would not result in proving the record of other Tele Communication Agencies and in absence of proof of documents, those documents would be of no use. Hence, there is no reason to call the Call Details of the aforesaid mobile and land line numbers.

84. In my view, reasoning in regard to aforesaid item is a short of satisfying permissible grounds u/s 233(3) of the Code on which application could have been rejected. The prosecution has examined certain Tele Communication Officials. It is in these circumstances, unless call details are available and are analysed by the accused-applicants, it cannot be said at this stage, whether the said documents shall prejudice any of the rights of the accused or not. Such kind of assessment is not permissible at this stage. Moreover, what the Trial Court said, if is taken to be correct on its face value, that the accused has requested to summon only two Nodal Officers of two Tele Communication Companies and not others, that itself would not have justified rejection of application for all record of call details in respect of the mobile numbers. The two mobile numbers call details could have been proved by Nodal Officers of Bharti Airtel Ltd. and Vodaphone Ltd. At the best, for the landline numbers, officials of other two Tele Communication Companies would have required. Failure to summon officers of two other Companies, per se, would not justify rejection of request in respect of mobile numbers for which officials of Tele Communication were also requested to be summoned.

85. In my view, Court below has clearly acted wholly illegally and has exceeded in its jurisdiction by rejecting request of accused-applicants in respect of documents mentioned in para 11 of Application No. 405Kha and in this context, even rejection of persons or the witnesses mentioned in paras 2.10 and 2.11 also cannot be held justified. The impugned order, therefore, cannot sustain on both the aspects.

86. Now coming to documents mentioned in para 12 of the application No. 405Kha. Here, certain information with regard to DNA Analysis report was requested to be summoned by accused-applicants. DNA examination report, it appears was submitted by Dr. B.K. Mahapatra, who himself was examined by prosecution as PW-6. The Trial Court has negated request of applicants on the ground that Dr. Mahapatra has already proved discernments, relied by prosecution and has also been cross-examined by accused-applicants. That itself has been held to be a reason for rejecting this request.

87. In my view, the Court below has completely failed to appreciate the reason given by the applicants in this regard. The reason for summoning certain information, which would have formed the basis of opinion and submitting report in a case of DNA Test has been sought to be summoned with a view that applicants wanted to have a second opinion in respect to the aforesaid expert opinion from another DNA expert.

88. It is an admitted position that once a sample for DNA test has already been utilized, there is no question of asking for re-testing thereof. Now correctness of opinion of an expert in the context of DNA testing can be checked by another DNA expert only when basic data and material, which has been considered by earlier expert, is available for examination to another expert.

89. To appreciate the request of accused-applicants in this regard it would be necessary first to examine as to what DNA testing is. Though this Court does not claim itself to be a technical expert in the subject, but on the material available before it to explain mechanism and scientific process of DNA testing, I would like to find out whether request made by accused-applicants is a sheer cloak for the purposes of vexation or delay or defeating the ends of justice or a genuine demand so as to get a second experts opinion in the matter, if necessary.

90. Here in this regard I am benefited by a judgment of Court of Appeal in R. v. Gary Adams, (1997) 1 Cr.App. R. 369 wherein issues relating to DNA profiles were examined and certain guidelines were laid down in relation to DNA evidence.

91. Deoxyribonucleic, or DNA, consists of long ribbon-like molecules, the chromosomes, 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes-23 provided from the mother and 23 from the father at conception, from the genetic blueprint of the body. Different section of DNA have different identifiable and discrete characteristics. A stain of blood or semen is taken in sample to examine its DNA profile so as to identify the person to whom it belongs. This process is complex and it would be prudent to refer from the aforesaid judgment, which also contains a quote from Lord Taylor C.J. in the case of Deen (transcript: December 21, 1993), and reads as under:

The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the suspect. In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto-radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not.

92. DNA profile examination has further been elaborated in the above authority as under:

Even if a number of bands correspond exactly, any discrepancy between the profiles, unless satisfactorily explained, will show a mismatch and will exclude the suspect from complicity. Thus the first stage in seeking to prove identity by DNA profiling is to achieve a match.

The characteristics of an individual band of DNA will not be unique. The fact that the identical characteristic of a single band are to be found in the crime stain and the sample from the suspect does not prove that both have originated from the same source. Other persons will also have that identical band as part of their genetic make-up. Empirical research enables the analyst to predict the statistical likelihood of an individual DNA band being found in the genetic make-up of persons of particular racial groups "the random occurrence ratio.

As one builds up a combination of bands, the random occurrence ratio becomes increasingly more remote, by geometric progression. Thus, if two bands, each of which appear in 1 in 4 of the population are combined, the combination will appear in 1 in 16 of the population, and if to there are added a further band that is (sic) 1 in 4 of the population, the (sic) combination will appear in 1 in 6 (sic) population. This process of (sic) is valid on the premise that (sic) band is statistically independent from the others. The frequency ratio of the blood group is a factor which is statistically independent and thus this can also validly be used as a multiplier.

If the DNA obtained from the crime stain permits, it may be possible to demonstrate that there is a combination of bands common to the crime stain and the suspect which is very rare. For instance, it may be that the match achieved with the crime stain is one which has a statistical probability of existing in the case of only one in a million of the populace. We shall take a match probability, or random occurrence ration, of one in a million as an (sic) demonstrate the conclusions that (sic) properly be drawn from (sic) and those which cannot. We shall start with the latter."

93. The learned Court of Appeal in the context of DNA evidence has laid down following guidelines:

1. The scientist should adduce the evidence of the DNA comparisons between the crime stain and the defendants sample together with his calculations of the random occurrence ratio.

2. Whenever DNA evidence is to be adduced the Crown should serve on the defence details as to how the calculations have been carried out which are sufficient to enable the defence to scrutinise the basis of the calculations.

3. The Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.

4. Any issue of expert evidence should be identified and, if possible, resolved before trial. This area should be explored by the Court in the pre-trial review.

5. In giving evidence the expert will explain to the jury the nature of the matching DNA characteristics between the DNA in the crime stain and the DNA in the defendants blood sample.

6. The expert will, on the basis of empirical statistical data, give the jury the random occurrence ratio-the frequency with which the matching DNA characteristics are likely to be found in the population at large.

7. Provided that the expert has the necessary data, it may then be appropriate for him to indicate how many people with the matching characteristics are likely to be found in the United Kingdom or a more limited relevant sub-group, for instance, the Caucasian, sexually active males in the Manchester area.

...

9. The expert should not be asked his opinion on the likelihood that it was the defendant who left the crime stain, nor when giving evidence should he use terminology which may lead the jury to believe that he is expressing such an opinion.

10. It is inappropriate for an expert to expound a statistical approach to evaluating the likelihood that the defendant left the crime stain, since unnecessary theory and complexity deflect the jury from their proper task.

94. Though the above guidelines are in a case in United Kingdom, but the brood and basic instructions, applicable in general, can be borrowed and applied here also. From the above, it cannot be doubted that data basis, upon which calculations have been founded, which formed opinion of an expert, would be necessary for other DNA expert also, in absence whereof, another or other expert cannot find out whether opinion of prosecution expert is possible, correct and is clearly born out from aforesaid data basis or not. Since the defence intends to examine or produce its own expert in respect to DNA expert, he is entitled to have requisite data basis so that his expert may examine and thereafter may be able to give his opinion in the right perspective. It may be possible that expert chosen by accused after having gone through requisite data basis opine in the same manner, as the prosecution witness, and accused may not find thereafter any necessity of producing him, but that would depend only when he is able to find out in his own way or from his chosen expert, the correct position in respect to DNA testing repost. The mere fact that Dr. B.K. Mahapatra has been examined, only show that expert witness produced by prosecution has supported his opinion given in particular manner. But unless defence has an opportunity to cross check the said opinion through his own expert, it cannot be said that he has been given fair opportunity of defence to make trial fair.

95. When examined the question from this angle, I do not find any justification for not allowing the aforesaid request of accused and, in my view, Trial Court has not looked into this aspect in correct perspective and has committed patent illegality. The impugned order, to this extent, is also liable to be set aside.

96. Now I come to rejection of request in respect of certain witnesses named in application No. 407Kha. The Trial Court has permitted all other wit-nesses except those mentioned in paras 2.4, 2.5 and 2.10 to 2.13.

97. So far as witnesses named in paras 2.10 and 2.11 are concerned, I have already held that rejection of request of accused-applicants to that ex-tent is not justified.

98. Now I propose to consider in respect of others. Before this Court during course of argument learned Counsel for the applicant stressed in respect of witnesses named at paras 2.4, 2.12 and 2.13 and therefore, rejection of accuseds request for summoning witnesses named in para 2.5 of application No. 407Kha stands confirmed.

99. Now so far as witnesses named at para 2.4 is concerned, it is stated at the Bar that she is not available in India and has gone abroad. If that be so, I do not find any justification to delay the trial awaiting her arrival in India, particularly when report, which is said to have been submitted by her has been admitted in evidence.

100. Sri R.K. Saini, learned Special Public Prosecutor and Sri Anurag Khanna, Advocate appearing for CBI stated at the Bar, very categorically, that report submitted by Dr. Richa Saxena on behalf of prosecution, in respect thereto, no objection has been raised and the document as such is admitted. I, therefore, do not find any justification to touch the impugned order in so far as it has not allowed application No. 407Kha in regard to witnesses named in para 2.4.

101. Now straightway I come to wit-nesses mentioned in para 2.12 and 2.13. The applicants have requested for summoning Registrar, Supreme Court of India to produce original record of Review Petition No. 85 of 2012.

102. It cannot be doubted that it is always open to the accused to obtain a certified copy of review petition filed before the Apex Court and that would be admissible in evidence without requiring any formal proof before the Trial Court to the extent that such a document was filed before Apex Court and is part of record thereat. For that purpose, there is no justification whatsoever for directing production of original record of review petition. This request in para 2.12 of application No. 407Kha, therefore, patently mischievous, has rightly been rejected by Court below.

103. Now so far as Sri Arun Kumar, Addl. D.G.P. Law and Order, U.P. Lucknow is concerned, it is not in dispute that neither he was Investigating Officer at any point of time in the present matter nor otherwise has any role in any context, so as to justify his summoning. Only reason assigned is that he made statement revealing his opinion to a TV Channel in the capacity of a superior and senior officer of U.P. Police. Such an opinion and statement made by a person who has no otherwise role in the investigation or otherwise is per se neither admissible in evidence nor I find any justification for his summoning. In this regard also I do not find any error on the part of Court below in rejecting the request made by applicants.

104. Lastly but not the least, 1 may notice that learned Counsel appearing for CBI have stressed that this Court and the Apex Court both have desired that trial in this matter should be held expeditiously. There can be no two opinion that justice delayed is justice denied. In the matter of criminal administration of justice, it is of utmost importance that trial must proceed and conclude expeditiously which is in the interest of not only prosecution and accused, i.e. the parties to the case before the Trial Court, but also in the interest of society at large. The anxiety of Trial Court in proceeding with the trial in this case expeditiously is quite commendable and appreciatable but then there has to be caution that an expeditious trial may not get converted into a hasty and hurried trial, in the zeal of proceeding expeditiously, particularly when, the matter relates to serious charge like double murder where accused may face severest punishment. The Trial Court has to be extremely cautious, careful and vigilant so that in the process of expeditiousness, element of fairness, due opportunity and justice is not sacrificed. The right of accused to put his best evidence can/should not be defeated in the name of expeditious trial. It is for this reason a Trial Court, while proceeding expeditiously, must have a proper balance so that simultaneously both the things may be maintained i.e. without deviating valuable right of defence to the accused, trial is conducted and concluded expeditiously only then it can be said that justice has been done and achieved its object.

105. In view of the above discussion, the two applications are allowed partly. The applicants request for documents mentioned in paras 10, 11 and 12 of Application No. 405Kha is hereby allowed. Respondents are directed to produce aforesaid record before Trial Court. Similarly Application No. 407Kha, in so far as it has named witnesses in paras 2.10 and 2.11, is allowed. The Court below shall take appropriate steps in this regard. The impugned order passed by Court below dated 18.6.2013 is modified to the extent, as directed above.