Basic concept of cherry-­picking - Should a party releasing material from privilege be allowed to partially release such material?

  Before we part with the present appeal, another disconcerting aspect of this case that comes to the fore is SEBI's attempt to cherry-pick the documents it proposes to disclose. There is a dispute about the fact that certain excerpts of the opinion of Justice (Retd.) B.N. Srikrishna, were disclosed to the Appellant herein. It is the allegation of the Appellant that while the parts which were disclosed, vaguely point to the culpability of the Appellant, SEBI is refusing to divulge the information which exonerate it. Such cherry-picking by SEBI only derogates the commitment to a fair trial. In Nea Karteria Maritime Co. Ltd. v. Atlantic and Great Lakes Steamship Corporation, [1981] Com LR 138 at 139, Mustill J. held as under:

I believe that the principle underlying the Rule of practice exemplified in Burnell v. British Transport Commission MANU/UKWA/0012/1955 : [1956] 1 QB 187 is that where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.

The aforesaid principle is often referred to as the 'Cherry-picking' principle. {Para 57}

58. In the case at hand, SEBI could not have claimed privilege over certain parts of the documents and at the same time, agreeing to disclose some part. Such selective disclosure cannot be countenanced in law as it clearly amounts to cherry-picking.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1167 of 2022

Decided On: 05.08.2022

Reliance Industries Limited  Vs. Securities and Exchange Board of India and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, C.J.I., J.K. Maheshwari and Hima Kohli, JJ.

Author: N.V. Ramana, C.J.I.

Citation: MANU/SC/0965/2022

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When prosecution for sexual offence is liable to be quashed?

 The commission of offence as alleged by respondent No.2

against the petitioner is in the month of February, 2004. On that day,

offence under Section 354 of the IPC was punishable with imprisonment

of either description for a term which may extend to two years, or with

fine, or with both and offence under Section 509 of the IPC was

punishable with simple imprisonment for a term which may extend to one

year, or fine, or both. If the punishment provided under offences under

Sections 354 and 509 of the IPC is considered along with limitation

provided under Section 468 of the Cr.PC., then, it is clear that for the

offences punishable under Section 509 of the IPC, the limitation provided

is of one year and for offences punishable under Section 354 of the IPC is

concerned, the limitation provided is of three years.

8. No doubt, the provisions of Section 473 of the Cr.PC. deals

with extension of period of limitation in certain cases. Under these

provisions, the Court may take cognizance of an offence after the expiry

of the period of limitation, provided it is satisfied on the facts and

circumstances of the case that the delay has been properly explained or it

is necessary to do so in the interests of justice. The subject FIR came to

be filed 14 years after the occurrence of the incident in question and

11 years after the period of expiration of limitation. We have perused the

order taking cognizance by the concerned Magistrate and, we find that

neither there is an application by the prosecutions for extension of

limitation or condonation of delay nor there are reasons for condoning

such delay by the Magistrate. In other words, neither delay is properly

explained nor there are reasons by Magistrate for condoning the same in

the interests of justice. In our opinion, the Magistrate, after expiry of the

period of limitation, could not have taken cognizance especially in the

absence of explanation under Section 473 of the Cr.PC..

9. The Apex Court in Bhajanlal and ors. (supra) has given

categories of cases, by way of illustrations, wherein powers of the High

Court under Article 226 of the Constitution of India and Section 482 of the

Cr.PC. can be exercised to secure the ends of justice. We are concerned

with category (6) which reads as under :

“102….

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which a criminal

proceeding is instituted) to the institution and continuance of the

proceedings and/or where there is a specific provision in the Code

or the concerned Act, providing efficacious redress for the

grievance of the aggrieved party.”

The facts and circumstances of the present case, in our

considered opinion, clearly falls in the above category. We are satisfied

that the Magistrate, in view of the provisions of Section 468 of the Cr.PC

and when there is no case made out under Section 473 of the Cr.PC.,

could not have taken cognizance. Continuation of the prosecution of the

petitioner, therefore, in our opinion, would be abuse of the process of law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 1854 OF 2018

Mahesh Murthy  vs  The State of Maharashtra 

CORAM : RANJIT MORE & N. J. JAMADAR, JJ.

DATE : 9th

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