The Delhi High Court on Friday sought a response from Congress leader P Chidambaram, his son Karti Chidambaram and other accused in the Aircel-Maxis case on a plea by the CBI challenging a trial court’s order directing the agency to supply un-relied upon documents to them.

Justice Swarana Kanta Sharma issued notice on the CBI’s petition and granted the Chidambarams and others one week to file their replies.

The high court, which was informed that the case is listed before the trial court on January 18, fixed the plea for further hearing on January 11, 2024.

The CBI, in its petition, contended that the trial court erred while directing the investigating agency to supply all un-relied upon documents to the accused.

Investigating agencies, for the purpose of prosecution, may not rely on all the documents they have gathered during the probe resulting in the documents getting bifurcated into “relied” and “un-relied” categories. While the former may benefit the prosecution, the latter could help the defence, which would normally want to inspect all the documents, including those the probe agency has not relied upon.

The CBI, represented through senior advocate Sanjay Jain, said the special judge had taken cognisance of the charge sheet on November 27, 2021 and issued summons for the appearance of all the accused. On January 20, 2022, the trial court had directed the CBI to file a list of un-relied upon documents before the court and supply copies of the same to the accused.

“Accordingly, a list of 67 un-relied upon documents was filed by CBI on February 18, 2022 and copies of the same were supplied to the accused persons. Applications were filed under section 207 CrPC by the accused persons for supply of un-relied upon documents. Special judge vide order dated March 5, 2022 directed CBI to supply all un-relied upon documents as sought by the accused,” the CBI counsel said.

The agency challenged the March 5, 2022 order and contended that the trial court had erred in observing that the CBI is obliged to supply all un-relied upon documents to the accused.

The CBI said it apprehended that the sweeping direction to provide all un-relied upon documents shall hamper further investigation.

“The provision of Section 173(5) of CrPC makes it incumbent upon the investigating agency to forward/ transmit to the court all documents on which the prosecution proposes to rely upon during the course of trial, other than those already sent to the magistrate during investigation,” it said.

The central probe agency said as per the provisions of the CrPC, the prosecution is obliged to supply to the accused copies of only those documents which it proposes to rely upon or which have already been sent to the magistrate during investigation.

“There is neither any provision in CrPC which casts a duty upon the investigating agency to forward to court documents on which it does not rely upon nor is there any provision in CrPC which empowers the magistrate to allow the accused to inspect the documents which are neither filed in court nor relied upon by the prosecution and that too at the pre-trial stage,” it said.

The CBI said the case involves high level of corruption with wide ramifications for society, and while the accused have a right to fair trial, the collective interest of the society cannot be impinged upon.

The case relates to alleged irregularities in the grant of Foreign Investment Promotion Board (FIPB) approval to the Aircel-Maxis deal.

The approval was granted in 2006, when Chidambaram was the Union finance minister.

The CBI and the ED had alleged that as the finance minister, Chidambaram had granted approval to the deal beyond his capacity, benefitting certain people, and received kickbacks.

Aircel is an Indian network founded by businessman C Sivasankaran, while Malaysian communications service provider Maxis Berhad is owned by Ananda Krishnan, a Malaysian citizen of Sri Lankan Tamil descent.

Maxis had taken over Aircel in 2006 by acquiring a 74 per cent stake. The Aircel-Maxis deal had come under the scanner in 2011 when Sivasankaran lodged a complaint with the CBI alleging he had been pressured to sell his stake to Maxis.

BJP leader Subramanian Swamy has alleged that a company controlled by Karti Chidambaram had in 2006 received a 5 per cent stake in Aircel in return for getting Maxis to pay Rs 4,000 crore for 74 per cent shares of Aircel.

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