Accused Entitled To Inspect Un-Relied Documents To Effectively Address Arguments On Charge: Delhi High Court Permits Malkhana Inspection In Delhi Riots Case
The Court observed that denial of access to unrelied documents may prejudice the accused's right to a fair trial and set aside an order refusing inspection of material lying in the investigating agency's malkhana.
Justice Neena Bansal Krishna, Delhi High Court
The Delhi High Court has held that to ensure fairness of procedure and allay any perceived prejudice, an accused is entitled not only to a list of unrelied documents but also to inspection of such material at the stage of arguments on charge.
The Court observed that access to unrelied documents forms part of the broader guarantee of a fair trial under Article 21 of the Constitution and may be necessary for an accused to effectively oppose framing of charges.
The Court was hearing a writ petition filed by activist Devangana Kalita challenging an order of the Special Court refusing her request to inspect material lying in the malkhana of the investigating agency in connection with FIR No. 59 of 2020 relating to the North-East Delhi riots.
Justice Neena Bansal Krishna observed: “Therefore, it emerges from the aforesaid judgements that in order to ensure fairness of procedure and to allay any perceived prejudice, it is well settled that the accused is not only entitled to list of un-relied documents, but also to the inspection, to be able to address arguments on the charge effectively.”
Advocate Adit S. Pujari appeared for the petitioner. Amit Prasad and Madhukar Pandey, Special Public Prosecutors, appeared for the respondent.
Background
The petitioner sought inspection of the malkhana maintained by the investigating agency on the ground that it contained material seized during the investigation but not relied upon in the chargesheet. According to the petitioner, several electronic records, including CCTV footage, videos and WhatsApp chats collected during the investigation, had not been supplied despite being potentially relevant to her defence.
It was argued that the existence of such unrelied documents and objects had never been disputed by the prosecution and that denial of access would deprive the accused of material that could potentially establish innocence. The petitioner also relied on various decisions recognising the right of an accused to inspect unrelied documents retained by investigating agencies.
The prosecution opposed the petition, contending that no statutory right existed to seek inspection of unrelied documents at the stage of charge, particularly in prosecutions under the Unlawful Activities (Prevention) Act and the National Investigation Agency Act. It further argued that the petition was an attempt to delay the trial and that the accused could not rely on unrelied documents at the stage of framing of charge.
Court's Observations
The Court first rejected the preliminary objection regarding maintainability.
Referring to Krishnan v. Krishnaveni (1997), Madhu Limaye v. State of Maharashtra (1977), State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2003), Prabhu Chawla v. State of Rajasthan (2016) and CBI v. Ravi Shankar Srivastava (2006), the Court held that although interlocutory orders may not be appealable under Section 21(3) of the NIA Act, the constitutional and inherent jurisdiction of the High Court remains available in appropriate cases to prevent miscarriage of justice.
The Court observed that a litigant cannot be left without a remedy merely because an appeal or revision is barred.
The Court then examined the settled legal position regarding consideration of material at the stage of framing of charge.
Referring to Union of India v. Prafulla Kumar Samal (1979), Om Prakash Sharma v. CBI (2005) and State of Orissa v. Debendra Nath Padhi (2005), the Court noted that ordinarily the accused cannot rely upon defence material at the stage of charge and the Court is generally confined to the material forming part of the chargesheet.
The Court observed: “The Accused can only be heard on the record and documents filed along with it, by the Prosecution.”
However, the Court noted that subsequent jurisprudence had evolved important safeguards to ensure fairness.
The Court referred to Minakshi Bala v. Sudhir Kumar (1994), Hardeep Singh v. State of Punjab (2014) and Nitya Dharmananda @ K. Lenin v. Sri Gopal Sheelum Reddy (2018).
The Court noted that while a mini-trial cannot be conducted at the stage of charge, courts are not powerless where material of sterling and unimpeachable quality has been withheld and may have a direct bearing on the prosecution's case.
Quoting Nitya Dharmananda (2018), the Court observed: “While ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet.”
The Court undertook an extensive survey of precedents concerning disclosure of un-relied documents.
Referring to Sidharth Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010), In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh (2021), State of Tamil Nadu v. P. Ponnusamy (2022), Manoj v. State of Madhya Pradesh (2022) and Sarla Gupta v. Directorate of Enforcement (2025), the Court observed that the concept of fair disclosure extends beyond documents relied upon by the prosecution and includes material that may assist the accused.
The Court quoted the Supreme Court's observations in Manu Sharma (2010): “The liberty of an accused cannot be interfered with except under due process of law. The expression ‘due process of law’ shall deem to include fairness in trial... This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution... to make fair disclosure.”
The Court also relied upon Sarla Gupta (2025), wherein the Supreme Court recognised that denial of access to potentially exculpatory documents may itself give rise to a legitimate perception of prejudice.
After discussing the right to receive a list of un-relied documents, the Court considered whether the accused could also inspect such material.
The Court relied upon the Delhi High Court decisions in CBI v. M/s INX Media Pvt. Ltd. (2021) and Dheeraj Wadhawan v. CBI (2023), which recognised the right of accused persons to inspect unrelied documents lying in the investigating agency's malkhana.
The Court reproduced the observations in INX Media (2021): “The learned trial Court did not direct the CBI to produce the said documents in Court and held that the ends of justice would be met if the accused persons are permitted to inspect the said documents lying in the Malkhana of CBI and to find out if any such document is relevant or vital for their defence or is of sterling quality to demolish the very case of prosecution.”
The Court also referred to the Supreme Court's observations in Manish Sisodia v. Directorate of Enforcement (2024), recognising that inspection of unrelied documents is part of the accused's right to a fair trial.
The prosecution sought to distinguish CBI cases from prosecutions under the UAPA and NIA Act on the ground that the latter involved terrorism-related offences.
Rejecting the distinction, the Court held: “The fundamental principles of criminal jurisprudence in regard to ensuring a fair trial under Article 21 of the Constitution of India and transparency in the judicial proceedings, cannot be compartmentalised into terror offences and the regular criminal offences.”
The Court further observed: “The Constitution of India grants equal protection to every kind of accused and such artificial distinction would not only be contrary to the criminal jurisprudence but would also shake the foundations of right to life and liberty.”
Conclusion
Holding that the Special Court had erred in refusing inspection of unrelied documents, the Delhi High Court set aside the impugned order and directed the respondent agency to permit inspection of unrelied documents lying in the malkhana.
The Court, however, clarified that the petitioner should not unduly delay the inspection process, as that would unnecessarily delay the trial.
Case Title: Devangana Kalita v. State (NCT of Delhi) (Neutral Citation: 2026:DHC:5077)
Appearances
Petitioner: Adit S. Pujari, Chaitanya Sundriyal, Manvendra Singh Shekhwat, Siddharth Kaushal, Harshwardhan Pushkin Sharma, Advocates.
Respondents: Amit Prasad and Madhukar Pandey, SPP; Ayodhya Prasad, Aarush Bhatia, Dhruv Pande, Saravjeet Singh, Harshil Jain, Advocates.
