The Delhi High Court has dismissed a petition filed by Shantanu Prakash, the former Director of Educomp Infrastructure and School Management Limited (EISML), seeking the production of documents from the Central Bureau of Investigation (CBI) and a consortium of banks during the investigation stage.
Justice Neena Bansal Krishna held that while Section 91 of the Code of Criminal Procedure (Cr.P.C.) allows a court to summon documents “necessary or desirable” for investigation, an accused cannot invoke this provision to compel the investigating agency to provide documents merely to facilitate his answers during interrogation. The Court affirmed that the accused cannot dictate the course of the investigation.
Background of the Case
The Petitioner, Shantanu Prakash, served as a Director on the Board of EISML from 2006 to 2018. The company availed term loans and financial assistance from a consortium of banks between 2009 and 2013. Following financial difficulties, EISML was admitted into the Corporate Insolvency Resolution Process (CIRP) by the National Company Law Tribunal (NCLT), Chandigarh, on April 25, 2018. Consequently, the Board was suspended, and the Resolution Professional took custody of all records and books of accounts.
On June 29, 2021, based on a complaint by the State Bank of India, the CBI registered an FIR (No. RC 2232021A0007) against EISML and Shantanu Prakash for alleged offences under Sections 120B read with 406/420 of the Indian Penal Code (IPC) and relevant sections of the Prevention of Corruption Act, 1988. The allegations involved the diversion of loan funds causing a wrongful loss of approximately Rs. 806.07 Crores to the banks.
During the ongoing investigation, the CBI issued summons to the Petitioner in September 2023, seeking answers regarding transactions from the years 2007-2010. The Petitioner claimed he could not answer queries regarding 13-15-year-old transactions without access to the company’s records, which were in the possession of the Resolution Professional/new management. After his requests for documents were declined by the banks and the new management, he filed an application under Section 91 Cr.P.C. before the Special Judge, seeking directions for the production of these documents. The Special Judge dismissed the application on December 20, 2023, terming it premature.
Arguments of the Parties
The Petitioner challenged the Special Judge’s order, arguing that the management and custody of all assets and records had vested with the Resolution Professional under Section 17 of the Insolvency and Bankruptcy Code (IBC). He contended that requiring him to answer queries without access to these records was an “impossibility.”
Counsel for the Petitioner submitted that Section 91 Cr.P.C. is an enabling provision to ensure the production of documents necessary for the investigation. He argued that a fair investigation is a facet of Article 21 of the Constitution, and denying access to these documents handicapped him in explaining the factual position to the Investigating Officer (IO). He asserted that the “test of bias” applied by the Special Judge was alien to Section 91, and the application should have been allowed based on “necessity and desirability.”
The CBI and the Respondent Banks opposed the petition, arguing that the investigation was ongoing and the stage for supplying documents to the accused arises only after the filing of the Police Report (Charge Sheet) under Section 173 Cr.P.C., in compliance with Section 207 Cr.P.C.
The CBI contended that the Petitioner was shown relevant documents during his examination and was given an opportunity to peruse them. They argued that the law does not permit a “roving or fishing inquiry” by the accused at the investigation stage. The Respondents maintained that the Petitioner, alleged to have diverted funds, could not demand documents to facilitate his answers.
Court’s Analysis
Justice Neena Bansal Krishna analyzed the scope of Section 91 Cr.P.C., observing that while the power to summon documents exists at the stage of investigation, it must be exercised only when the Court considers the production “necessary or desirable” for the purpose of the investigation.
The Court noted that the IO already possessed the documents and was confronting the Petitioner with them during interrogation. The Bench observed:
“The purpose of interrogation is to elicit the truth based on the personal knowledge of the accused. If the Petitioner does not remember details due to the passage of time or lack of records, he is entitled to state the same to the Investigating Officer. The law does not compel an accused to answer questions that are factually impossible for him to answer; it merely requires him to cooperate with the investigation.”
The Court termed the application as an “oblique way to procure the documents” which the Petitioner could not procure independently. It was held that the inability to answer queries appropriately could not be a ground to compel the production of documents.
Referring to the Supreme Court’s decision in P. Chidambaram vs. Directorate of Enforcement, the High Court emphasized that accepting the Petitioner’s contention would amount to conducting a “mini-trial” at the stage of investigation. The Court stated:
“Investigation is the exclusive prerogative of the police/investigating agency. The accused cannot guide the investigation or demand that specific documents be collected and supplied to him to facilitate his answers.”
The Court distinguished the judgments relied upon by the Petitioner, including Om Prakash Sharma v. CBI, noting that they pertained to the stage after the charge sheet had been filed. The Court affirmed that the right to copies of documents under Section 207 Cr.P.C. accrues only after the investigation is complete.
Decision
The High Court found no illegality or jurisdictional error in the impugned order of the Special Judge and dismissed the petition.
However, acknowledging the volume and age of the documents, the Court issued a direction to ensure fairness in the procedure:
“However, it need not be emphasized that where Petitioner is being confronted with voluminous or old documents, the I.O. shall give sufficient time to the Petitioner to go through the documents to be able to give complete and informed answers… The Petitioner may inform the Investigating Officer of his inability to answer specific questions and seek time to go through the documents.”
The petition was dismissed with these observations.
Case Details:
- Case Title: Shantanu Prakash vs. CBI & Ors.
- Case Number: CRL.M.C. 579/2024 & CRL.M.A. 2371/2024
- Coram: Justice Neena Bansal Krishna
- Counsel for Petitioner: Mr. Arshdeep Singh Khurana, Ms. Neena Nagpal, Mr. Malak Bhatt, Mr. Vishvendra Tomar, Mr. Tannavi Sharma, Mr. Rashvendra Tomar and Ms. Nishtha Juneja, Advocates.
- Counsel for Respondents: Mr. Anupam S. Sharrma, SPP for CBI; Mr. O.P. Gaggar for Union Bank; Mr. Sanjay Kapur for SBI; and others.
