Evidence Act 1872

Whether contents of a memory card being electronic record U/S 2(1)(t) of IT Act can be termed as “document”: SC says yes-29/11/2019.

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P. Gopalkrishnan @ Dileep  Versus State of Kerala and Anr. – 29/11/2019

Whether the contents of the memory card/pen­drive submitted to the Court alongwith the police report can be treated as “document” as such. Indubitably, if the contents of the memory card/pen­drive are not to be treated as “document”, the question of furnishing the same to the accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise. We say so because it is nobody’s case before us that the contents of the memory card/pen­drive be treated as a “statement” ascribable to Section 173(5)(b) of the 1973 Code.

We hold that the contents of the memory card/pen drive being electronic record must be regarded as a document.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1794 OF 2019 (Arising out of SLP(Crl.) No. 10189/2018)

P. Gopalkrishnan @ Dileep ..…Appellant(s)
Versus
State of Kerala and Anr. ….Respondent(s)

Date: 29/11/2019

JUDGMENT

A.M. Khanwilkar, J.

1. Leave granted.

2. The conundrum in this appeal is: whether the contents of a memory card/pen­drive being electronic record as predicated in Section 2(1)(t) of the Information and Technology Act, 2000 (for short, ‘the 2000 Act’) would, thereby qualify as a “document” within the meaning of Section 3 of the Indian Evidence Act, 1872 (forby short, ‘the 1872 Act’) and Section 29 of the Indian Penal Code, 1860 (for short, ‘the 1860 Code’)?

If so, whether it is obligatory to furnish a cloned copy of the contents of such memory card/pen­drive to the accused facing prosecution for an alleged offence of rape and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution proposes to rely upon it against the accused, in terms of Section 207 of the Code of Criminal Procedure, 1973 (for short, ‘the 1973 Code’)? The next question is: whether it is open to the Court to decline the request of the accused to furnish a cloned copy of the contents of the subject memory card/pen­ drive in the form of video footage/clipping concerning the alleged incident/occurrence of rape on the ground that it would impinge upon the privacy, dignity and identity of the victim involved in the stated offence(s) and moreso because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the 2000 Act and the 1860 Code)?

3. The appellant has been arrayed as accused No. 8 in connection with offence registered as First Information Report (FIR)/Crime Case No. 297/2017 dated 18.2.2017 punishable under Sections 342, 366, 376, 506(1), 120B and 34 of the 1860 Code and Sections 66E and 67A of the 2000 Act, concerning the alleged incident/occurrence at around 2030 hrs. to 2300 hrs. on 17.2.2017, as reported by the victim.

4. For considering the questions arising in this appeal, suffice it to observe that the investigating officer attached to the Nedumbassery Police Station, Ernakulam, Kerala, after recording statements of the concerned witnesses and collecting the relevant evidence, filed police reports under Section 173 of the 1973 Code before the Judicial First Class Magistrate, Angamaly. First police report, on 17.4.2017 and the second, on 22.11.2017. When the appellant was supplied a copy of the second police report on 15.12.2017, all documents noted in the said report, on which the prosecution proposed to rely, were not supplied to the appellant, namely, (i) electronic record (contents of memory card); (ii) Forensic Science Laboratory (for short, ‘the FSL’) reports and the findings attached thereto in C.D./D.V.D.; (iii) medical reports; C.C.T.V. footages and (iv) Call data records of accused and various witnesses etc.

5. It is noted by the concerned Magistrate that the visuals copied and documented by the forensic experts during the forensic examination of the memory card were allowed to be perused by the appellant’s counsel in the presence of the regular cadre Assistant Public Prosecutor of the Court, in the Court itself. After watching the said visuals, some doubts cropped up, which propelled the appellant to file a formal application before the Judicial First Class Magistrate, Angamaly for a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the video and audio footage/clipping, in the same format as obtained in the memory card, alongwith the transcript of the human voices, both male and female recorded in it. In the said application, the appellant inter alia asserted as follows:­

“7. It may be noted that the electronic record in the form of copy of the alleged video footage of the offending act committed by accused No.1 on the body and person of the defacto complainant is a crucial and material record relied by the prosecution in this case. It is the definite contention of prosecution that the above electronic record is both the evidence of commission of crime as well as the object of commission of crime and hence indisputably the most material piece of evidence in this case. When the injustice, in not serving such a vital piece of evidence relied on by the prosecution in the case, was immediately brought to the notice of this Hon’ble Court, without prejudice to the right of petitioner to obtain copies of the same, the defence side was allowed to watch the alleged video footages by playing the contents of a pen drive in the lap top made available before this Hon’ble Court. Head phones were also provided to the counsel and also to the learned APP who also was throughout present during this proceedings.

8. It is most respectfully submitted that by watching the video footage, although in a restricted environment and with limited facilities in the presence of the Ld. APP and the Presiding Officer, it is shockingly realised that the visuals and audio bytes contained in the video are of such a nature which would completely falsify the prosecution case in the form presently alleged by the prosecution. As a matter of fact the video footage is not at all an evidence of commission of crime as falsely contended by the prosecution but it is rather a clear case of fabricating false evidence with intent to foist a false case. It is submitted that it is after deliberately concealing or withholding the alleged primary evidence viz. the mobile phone stated to have been used by accused No.1, by the prosecution in active connivance with accused No.1, that the prosecution has produced a memory card which evidently contains only selected audio and video recording.

9. xxx xxx xxx

10. ……The further Verification and close scrutiny of the images and audio with scientific aid will in all probability provide more significant materials necessary to find out the truth behind the recorded images and the extent of tampering and the same could only be unearthed if the mirror copy of the memory card is furnished to the petitioner which he is entitled to get without any further delay. As the prosecution is fully aware that the tampering could be detected and further female voice could be retrieved by the defense, the prosecution is trying to prevent the supply of the copy of the memory card in any form to the defense. It is illegal and the same will clearly amount to denial of a just and fair trial.

11. xxx xxx xxx

12. A close scrutiny of the contents of mahazar dated 8.3.2017 would show that on 18.2.2017 accused No.1 had entrusted a 8 GB memory card to Adv. E.G. Poulose, who had in turn produced the same before the Court of JFCM Aluva. The investigating agency thereafter obtained custody of the above electronic record and later the 8 GB memory card was sent to FSL, where, upon examination, Dr. Sunil

S.P., Assistant director (documents), FSL, Thiruvananthapuram has allegedly prepared a report in that regard. The copy of the report has not been furnished to the petitioner. The mahazar further shows that the contents of Memory card was transferred to a pen drive for the investigation purpose. The above mahazar further categorically states that the pen drive contained the data transferred from memory card and the same relates to the video footage of 17.2.2017 from 22:30:55 to 22:48:40 hrs and it is in order to check and verify whether the voice contained therein belongs to Suni that the voice sample was allegedly taken. The description in the mahazar proceeds as if there is only male voice in the video footage totally screening the fact that the video footage contains many vital and material utterances in female voice. Those utterances were revealed to the petitioner and his counsel only on 15.12.2017. Everybody present had the benefit of hearing the said clear female voice. As mentioned earlier the Ld. APP was also present. But the investigation agency which should have definitely seen and heard the same has for obvious reason screened the said material aspects from the records. The investigation, it appears did not venture to take steps to compare the female voice in the video footage with the voice of the female involved in this case, for obvious reasons. On viewing and hearing, it is revealed that clear attempt have been made by somebody to delete major portions from the video footage and from the audio recording.

13. It is respectfully submitted that utterances made by the parties involved and seen in the video footage determines the nature of act recorded in the video footage and a transcript of the utterances and human voices in the video footage is highly just and necessary especially in view of the shocking revelation, found when the video footage was played on 15.12.2017.

14. Yet another aspect which is to be pointed out is the mysterious disappearance of the mobile phone allegedly used for recording the video footage. The strong feeling of the petitioner is that the investigating agency has not so far stated the truth regarding the mobile phone allegedly used to shot the video footage. The prosecution records itself would strongly indicate that the mobile phone used to record the occurrence (which now turns out to be a drama) was with the Police or with the persons who are behind the fabrication of the video footage as evidence to launch the criminal prosecution and false implication of the petitioner. It is revolting to common sense to assume that even after conducting investigation for nearly one year by a team headed by a very Senior Police officer like the Addl. DGP of the Stage, during which accused No.1 was in the custody of the investigating team for 14 days at a stretch and thereafter for different spells of time on different occasions the original mobile instrument used for recording the video footage could not be unearthed. It appears that the investigating team was a willing agent to suffer the wrath of such a disgrace in order to suppress the withholding of the mobile instrument.

15. It is interesting to note that even in the second final report dated 22.11.2017 the Police has stated that the investigation to obtain the original mobile phone is even now continuing. It is nothing but an attempt to be fool everybody including the Court.

16. It is most respectfully submitted that in view of the startling revelation in the video footage, the petitioner intends to make request to conduct proper, just and meaningful investigation into the matter so as to ensure that the real truth is revealed and the real culprits in this case are brought to justice. For enabling the petitioner to take steps in that regard. It is highly just and essential that the cloned copy of the contents of memory card containing the video and audio content in the same format as obtained in the Memory card and the transcript of the human voices recorded in it are produced before Court and copy of the same furnished forthwith to the petitioner.

17. As mentioned herein before, the prosecution has chosen to furnish only a small portion of the prosecution records on 15.12.2017. The petitioner is approaching this Hon’ble Court with a detailed petition stating the details of relevant documents which do not form part of the records already produced before this Hon’ble Court and the details of the other documents which are not furnished to petitioner.

18. It is submitted that the petitioner as an accused is legally entitled to get the copies of all documents including the CDs, Video footage etc., and the prosecution is bound to furnish the same to the petitioner.

19. In the above premises it is respectfully prayed that this Hon’ble Court may be pleased to direct the prosecution to furnish a cloned copy of the contents of Memory Card containing the video and audio content in the same format as obtained in the memory card and the transcript of human voices, both male and female recorded in it, and furnish the said cloned copy of the memory card and the transcript to the petitioner.”

6. The Magistrate vide order dated 7.2.2018, rejected the said application, essentially on the ground that acceding to the request of the appellant would be impinging upon the esteem, decency, chastity, dignity and reputation of the victim and also against public interest.

The relevant portion of the order dated 7.2.2018 reads thus:­

“Heard both sides in detail.

The petitioner has also filed reply statement to the objection and counter statement filed by Special Public Prosecutor in the case. The allegation against the petitioner is that he engaged the first accused to sexually assault the victim and videograph the same. On receipt of summons the petitioner entered appearance and was served with the copies of prosecution records. The learned Senior Counsel appearing for the petitioner requested for the copies of the contents of memory card. The same could not be allowed & the investigation official has already a petition filed objecting the same, with a prayer to permit them to view the same in the court. Hence they were permitted to view the video footage and subsequent to the same they had filed this petition seeking a direction to the prosecution to furnish the copies of alleged audio and video footage and its transcript. The prosecution strongly opposed the same stating that the same will add insult to the victim who had suffered a lot at the hands of not only the accused but also the media. Hence they submitted that the petitioner may be permitted to view the contents of the video during trial.

Here the offence alleged tantamounts to a serious blow to the supreme honour of a woman. So as to uphold the esteem, decency, chastity, dignity and reputation of the victim, and also in the public interest, I am declining the prayer. But so as to ensure fairness in the proceedings and for just determination of the truth, the petitioner is permitted to inspect the contents of the video footage at the convenience of court.”

7. Aggrieved by the above decision, the appellant carried the matter to the High Court of Kerala at Ernakulam (for short, ‘the High Court’) by way of Crl.M.C. No. 1663/2018. The learned single Judge of the High Court dismissed the said petition and confirmed the order of the Magistrate rejecting the stated application filed by the appellant. The High Court, however, after analyzing the decisions and the relevant provisions cited before it, eventually concluded that the seized memory card was only the medium on which the alleged incident was recorded and hence that itself is the product of the crime. Further, it being a material object and not documentary evidence, is excluded from the purview of Section 207 of the 1973 Code. The relevant discussion can be discerned from paragraph 41 onwards,

which reads thus:­

“41. This leads to the crucial question that is to be answered in this case. Evidently, the crux of the prosecution allegation is that, offence was committed for the purpose of recording it on a medium. Memory card is the medium on which it was recorded. Hence, memory card seized by the police itself is the product of the crime. It is not the contents of the memory card that is proposed to be established by the production of the memory card. The acts of sexual abuse is to be established by the oral testimony of the victim and witnesses. It is also not the information derived from the memory card that is sought to be established by the prosecution. Prosecution is trying to establish that the alleged sexual abuse was committed and it was recorded. Though, in the course of evidence, contents of it may be sought to be established to prove that, it was the memory card created by the accused, contemporaneously recorded on the mobile, along with the commission of offence, that does not by itself displace the status of the memory card as a document. Memory card itself is the end product of the crime. It is hence a material object and not a documentary evidence. Hence, it stands out of the ambit of section 207 Cr.P.C.

42. The evaluation of the above legal propositions clearly spells out that, the memory card produced in this case is not a document as contemplated under section 307 IPC [sic 207 Cr.P.C.]. In fact, it is in the nature of a material object. Hence, copy of it cannot be issued to the petitioner herein.

43. Prosecution has a case that, though accused is entitled for his rights, it is not absolute and even outside section 207 Cr.P.C., there can be restrictions regarding the right under section 207 Cr.P.C. It was contended that, if the above statutory provision infringes the right of privacy of the victim involved, fundamental right will supersede the statutory right of the accused. Definitely, in case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Ors. (2017) 10 SCC 1 (at page 1), the Constitutional Bench of the Supreme Court had held that the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Art. 19 does not denude Art.21 of its expansive ambit. It was held that, validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom. In Sherin V. John’s case (supra), this Court had held that, when there is a conflict between Fundamental Rights of a person and statutory rights of another person, Fundamental Rights will prevail. The possibility of such contention may also arise. Since that question does not arise in this case in the light of finding under section 207 Cr.P.C. I do not venture to enter into that issue.

44. Having considered the entire issue, I am inclined to sustain the order of the court below in Crl.M.P. No.49 of 2018 in C.P. No.16 of 2017 dismissing the application, though on different grounds. However, this will not preclude the Court from permitting the accused to watch the memory card only in Court, subject to restrictions, to prepare defence.”

(emphasis supplied)

8. The appellant being dissatisfied, has assailed the reasons which found favour with the trial Court, as well as the High Court. The appellant broadly contends that the prosecution case is founded on the forensic report which suggests that eight video recordings were retrieved from the memory card and that the video files were found to be recorded on 17.2.2017 between 22:30:55 hrs. and 22:48:40 hrs. The same were transferred to the stated memory card on 18.2.2017 between 09:18 hrs. and 09:20 hrs. Be it noted that the original video recording was allegedly done by accused No. 1 on his personal mobile phone, which has not been produced by the investigating agency. However, the memory card on which the offending video recording was copied on 18.2.2017 was allegedly handed over by an Advocate claiming that the accused No. 1 had given it to him. He had presented the memory card before the Court on 20.2.2017, which was sent for forensic examination at State FSL, Thiruvananthapuram. After forensic examination, the same was returned alongwith FSL report DD No. 91/2017 dated 3.3.2017 and DD No. 115/2017 dated 7.4.2017. A pen­drive containing the data/visuals retrieved from the memory card, was also enclosed with the report sent by the State FSL.

9. Be that as it may, the prosecution was obviously relying on the contents of the memory card which have been copied on the pen­drive by the State FSL during the analysis thereof and has been so adverted to in the police report. The contents of the memory card, which are replicated in the pen­drive created by the State FSL would be nothing but a “document” within the meaning of the 1973 Code and the provisions of the 1872 Act. And since the prosecution was relying on the same and proposes to use it against the accused/appellant, it was incumbent to furnish a cloned copy of the contents thereof to the accused/appellant, not only in terms of Section 207 read with Section 173(5) of the 1973 Code, but also to uphold the right of the accused to a fair trial guaranteed under Article 21 of the Constitution of India. The trial Court rejected the request of the appellant on the ground that it would affect the privacy and dignity of the victim, whereas, the High Court proceeded on the basis that the memory card is a material object and not a “document”. It is well known that a cloned copy is not a photocopy, but is a mirror image of the original, and the accused has the right to have the same to present his defence effectively. In the alternative, it is submitted, that the Court could have imposed appropriate conditions while issuing direction to the prosecution to furnish a cloned copy of the contents of memory card to the accused/appellant.

10. Per contra, the respondent­State and the intervenor (the victim) have vehementaly opposed the present appeal on the argument that the appellant before this Court is none other than the master­mind of the conspiracy. Although he was not personally present on the spot, but the entire incident has occurred at his behest. It is urged that the appeal deserves to be dismissed as the appellant has disclosed the identity of the victim in the memo of the special leave petition from which the present appeal has arisen. Further, the appellant has falsely asserted that he had himself perused the contents of the pen­ drive and even for this reason, the appeal should be dismissed at the threshold. As a matter of fact, the contents of the pen­drive were allowed to be viewed by the appellant’s counsel and the regular cadre Assistant Public Prosecutor of the Court. The asservation of the appellant that after viewing the contents of the pen­drive, he gathered an impression that the contents of the memory card must have been tampered with, is the figment of imagination of the appellant and contrary to forensic report(s) by the State FSL. The definite case of the respondent is that the memory card seized in this case containing the visuals of sexual violence upon the victim is a material object and the pen­drive into which the contents of memory card were documented through the process of copying by the State FSL and sent to the Court for the purpose of aiding the trial Court to know the contents of the memory card and the contents of the said pen­ drive is both material object as well as “document”. It is also urged that the visual contents of the pen­drive would be physical evidence of the commission of crime and not “document” per se to be furnished to the accused alongwith the police report. The contents of the memory card or the pen­drive cannot be parted to the accused and doing so itself would be an independent offence. Moreover, if a cloned copy of the contents of the memory card is made available to the accused/appellant, there is reason to believe that it would be misused by the accused/appellant to execute the conspiracy of undermining the privacy and dignity of the victim. It is urged that the appellant has relied on certain decisions to contend that the contents of the memory card must be regarded as “electronic record” and, therefore, a “document”. The exposition in those decisions are general observations and would be of no avail to the appellant. The appellant is facing prosecution for an offence of rape, and the trial thereof would be an in­camera trial before the Special Court. To maintain the sanctity and for upholding the privacy, dignity and identity of the victim, it is urged that the accused/appellant in such cases can seek limited relief before the trial Court to permit him and his lawyer or an expert to view the contents of the pen­drive in Court or at best to permit him to take a second opinion of expert to reassure himself in respect of the doubts entertained by him. Such indulgence would obviate the possibility of misuse of the cloned copy of the video/audio footage/clipping and the same would be in the nature of a preventive measure while giving a fair opportunity to the accused to defend himself. The respondent and the intervenor would urge that the appeal be dismissed being devoid of merits.

11. As aforesaid, both sides have relied on reported decisions of this Court, as well as the High Courts and on the provisions of the relevant enactments to buttress the submissions. We shall refer thereto as may be required.

12. We have heard Mr. Mukul Rohatgi, learned senior counsel for the appellant, Mr. Ranjit Kumar, learned senior counsel for the respondent­State and Mr. R. Basant, learned senior counsel for the intervenor.

13. The central issue is about the obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report under Section 207 of the 1973 Code. Section 173 of the 1973 Code ordains that the investigation under Chapter XII of the said Code should be completed without unnecessary delay and as regards the investigation in relation to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the 1860 Code, the same is required to be completed within two months from the date on which the information was recorded by the officer in charge of the police station. The investigating officer after completing the investigation, is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offence on such police report. Alongwith the police report, the investigating officer is also duty bound to forward to the Magistrate “all documents” or relevant extracts thereof, on which prosecution proposes to rely other than those sent to the Magistrate during investigation. Similarly, the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate alongwith the police report. Indeed, it is open to the police officer, if in his opinion, any part of the “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 public interest, to 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 making such request. That discretion, however, is not given to him in respect of the “documents” or the relevant extracts thereof on which the prosecution proposes to rely against the accused concerned. As regards the documents, sub­Section (7) enables the investigating officer, if in his opinion it is convenient so to do, to furnish copies of all or any of the documents referred to in sub­Section (5) to the accused. Section 173, as amended and applicable to the case at hand, reads thus:­

‘‘173. Report of police officer on completion of investigation.—(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(1A) The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating—

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170;

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report—

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject­matter 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 making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub­ section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub­section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub­sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub­ section (2).’’

(emphasis supplied)

14. Concededly, as regards the “documents” on which the prosecution proposes to rely, the investigating officer has no option but to forward “all documents” to the Magistrate alongwith the police report. There is no provision (unlike in the case of “statements”) enabling the investigating officer to append a note requesting the Magistrate, to exclude any part thereof (“document”) from the copies to be granted to the accused. Sub­ Section (7), however, gives limited discretion to the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to the accused. That does not permit him to withhold the remaining documents, on which the prosecution proposes to rely against the accused, from being submitted to the Magistrate alongwith the police report. On the other hand, the expression used in Section 173(5)(a) of the 1973 Code makes it amply clear that the investigating officer is obliged to forward “all” documents or relevant extracts on which the prosecution proposes to rely against the accused concerned alongwith the police report to the Magistrate.

15. On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the 1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. Section 207 reads thus:­

‘‘ 207. Supply to the accused of copy of police report and other documents.—In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:—

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub­section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub­section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub­section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.’’

As regards the statements, the first proviso enables the Magistrate to withhold any part thereof referred to in clause (iii), from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in sub­Section (6) of Section 173. However, when it comes to furnishing of documents submitted by the investigating officer alongwith police report, the Magistrate can withhold only such document referred to in clause (v), which in his opinion, is “voluminous”. In that case, the accused can be permitted to take inspection of the concerned document either personally or through his pleader in Court. In other words, Section 207 of the 1973 Code does not empower the Magistrate to withhold any “document” submitted by the investigating officer alongwith the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of ‘statements’ referred to in sub­Section (6) of Section 173 of the 1973 Code.

16. Be that as it may, the Magistrate’s duty under Section 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the Section. We may usefully advert to the dictum in Hardeep Singh v. State of

Punjab1 wherein it was held that:­

“47. Since after the filing of the charge­sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge­sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre­trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre­trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court … … …”

(emphasis supplied)

In yet another case of Tarun Tyagi vs. CBI2, this Court

considered the purport of Section 207 of the 1973 Code and

observed as follows:­

“8. Section 207 puts an obligation on the prosecution to furnish to the accused, free of cost, copies of the documents mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report under Section 173(5) of the Code. Such a compliance has to be made on the first date when the accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the accused with the copy thereof, the Magistrate can allow the accused to inspect it either personally or through pleader in the Court.”

1 (2014) 3 SCC 92

2 (2017) 4 SCC 490

17. It is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences as expounded in Nelson Motis v. Union of India3. On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible.

18. Be that as it may, furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)4, this Court expounded thus:­

“218. 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. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.

3 (1992) 4 SCC 711

4 (2010) 6 SCC 1

219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub­section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression “documents on which the prosecution relies” are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.

220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.

221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non­production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.”

(emphasis supplied)

19. Similarly, in V.K. Sasikala v. State5, this Court held as under:­

“21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The

5 (2012) 9 SCC 771

question arising would no longer be one of compliance or non­compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of Cr.PC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced.”

(emphasis supplied)

20. The next seminal question is: whether the contents of the memory card/pen­drive submitted to the Court alongwith the police report can be treated as “document” as such. Indubitably, if the contents of the memory card/pen­drive are not to be treated as “document”, the question of furnishing the same to the accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise. We say so because it is nobody’s case before us that the contents of the memory card/pen­drive be treated as a “statement” ascribable to Section 173(5)(b) of the 1973 Code. Notably, the command under Section 207 is to furnish “statements” or “documents”, as the case may be, to the accused as submitted by the investigating officer alongwith the police report, where the prosecution proposes to rely upon the same against the accused.

21. The High Court adverted to certain judgments before concluding that the memory card would be a material object. For arriving at the said conclusion, the High Court relied on the decision of the King’s Bench of United Kingdom in The King v.

Daye6, wherein Darling J., adding to the majority opinion, had held thus:­

“…But I should myself say that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, or clay, and it might be, and often was, on metal. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence.”

(emphasis supplied)

6 [1908] 2 K.B. 333

The High Court also relied on the decision of the Chancery Court in Grant and Another v. Southwester and County Properties Ltd. and Another7, wherein it was observed as follows:­

“There are a number of cases in which the meaning of the word “document” has been discussed in varying circumstances. Before briefly referring to such cases, it will, I think, be convenient to bear in mind that the derivation of the word is from the Latin “documentum”: it is something which instructs or provides information. Indeed, according to Bullokar’s English Expositor (1621), it meant a lesson. The Shorter Oxford English Dictionary has as the fourth meaning for the word the following: “Something written, inscribed, etc., which furnishes evidence or information upon any subject, as a manuscript, title­deed, coin, etc.,” and it produces as the relevant quotation: ­ “These frescoes… have become invaluable as documents,” the writer being Mrs. Anna Brownell Jameson who lived from 1794 to 1860.

I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information ­ impliedly otherwise than as to the document itself ­ as being one of the main functions of a document. Indeed, in In Re Alderton and Barry’s Application (1941) 59 R.P.C. 56, Morton J. expressly doubted whether blank workmen’s time sheets could be classified as documents within section 11(1)(b) of the Patent and Design Acts 1907­ 1939 expressly because in their original state they conveyed no information of any kind to anybody…”

It can be safely deduced from the aforementioned expositions that the basis of classifying article as a “document” depends upon the information which is inscribed and not on where it is inscribed. It may be useful to advert to the exposition of this

7 [1975] Ch. 185

Court holding that tape records of speeches8 and audio/video cassettes9 including compact disc10 were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and are held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the 1872 Act 11.

22. It is apposite to recall the exposition of this Court in State

of Maharashtra vs. Dr. Praful B. Desai12, wherein this Court observed that the Criminal Procedure Code is an ongoing statute. In case of an ongoing statute, it is presumed that the Parliament intended the Court to apply a construction that continuously updates its wordings to allow for changes and is compatible with the contemporary situation. In paragraph 14 of the said decision, the Court observed thus:­

“14. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly

8 Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329

9 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17 10 Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485

11 Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473

12 (2003) 4 SCC 601

set out by the leading jurist Francis Bennion in his commentaries titled Statutory Interpretation, 2nd Edn., p. 617:

“It is presumed Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.

***

In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act’s passing, in law, in social conditions, technology, the meaning of words and other matters…. That today’s construction involves the

supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.

***

An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials.””

(emphasis supplied)

23. As aforesaid, the respondents and intervenor would contend that the memory card is a material object and not a “document”

as such. If the prosecution was to rely only on recovery of memory card and not upon its contents, there would be no difficulty in acceding to the argument of the respondent/intervenor that the memory card/pen­drive is a

material object. In this regard, we may refer to Phipson on

Evidence13, and particularly, the following paragraph(s):­

“The purpose for which it is produced determines

whether a document is to be regarded as documentary

evidence. When adduced to prove its physical

condition, for example, an alteration, presence of a

signature, bloodstain or fingerprint, it is real evidence.

So too, if its relevance lies in the simple fact that it

exists or did once exist or its disposition or nature. In

all these cases the content of the document, if relevant

at all, is only indirectly relevant, for example to

establish that the document in question is a lease.

When the relevance of a document depends on the

meaning of its contents, it is considered documentary

evidence.”

… … …”

(emphasis supplied)

Again at page 5 of the same book, the definition of “real

evidence14” is given as under:­

“Material objects other than documents, produced for inspection of the court, are commonly called real evidence. This, when available, is probably the most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference is relied upon. Unless its

13 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450

14 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5

genuineness is in dispute [See Belt v Lawes, The Times, 17 November 1882.], the thing speaks for itself.

Unfortunately, however, the term “real evidence” is itself both indefinite and ambiguous, having been used in three divergent senses:

(1) … … …

(2) Material objects produced for the inspection of the court. This is the second and most widely accepted meaning of “real evidence”. It must be borne in mind that there is a distinction between a document used as a record of a transaction, such as a conveyance, and a document as a thing. It depends on the circumstances in which classification it falls. On a charge of stealing a document, for example, the document is a thing.

(3) ………”

A priori, we must hold that the video footage/clipping contained in such memory card/pen­drive being an electronic record as envisaged by Section 2(1)(t) of the 2000 Act, is a “document” and cannot be regarded as a material object. Section 2(1)(t) of the 2000 Act reads thus:­

‘‘2(1)(t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer­generated micro fiche;’’

24. As the above definition refers to data or data generated, image or sound stored, received or sent in an electronic form, it

would be apposite to advert to the definition of “data” as

predicated in Section 2(1)(o) of the same Act. It reads thus:­

“2(1)(o) “data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;’’

On conjoint reading of the relevant provisions, it would be amply clear that an electronic record is not confined to “data” alone, but it also means the record or data generated, received or sent in electronic form. The expression “data” includes a representation of information, knowledge and facts, which is either intended to be processed, is being processed or has been processed in a computer system or computer network or stored internally in the memory of the computer.

25. Having noticed the above definitions, we may now turn to definitions of expressions “document” and “evidence” in Section 3 of the 1872 Act being the interpretation clause. The same reads thus:­

“3. Interpretation clause.­

Document.­ “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations

A writing is a document;

Words printed, lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document; A caricature is a document.

Evidence.­ “Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court,

such documents are called documentary evidence.”

On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court. Although, we need not dilate on the question of admissibility of the contents of the memory card/pen­drive, the same will have to be answered on the basis of Section 65B of the 1872 Act. The same reads thus:­

“65B. Admissibility of electronic records.­(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub­section (1) in respect of a computer output shall be the following, namely:­

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in

clause (a) of sub­section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub­section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub­section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

This provision is reiteration of the legal position that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a “document” and shall be admissible in evidence subject to satisfying other requirements of the said provision.

26. It may be useful to also advert to Section 95(2)(b) of the 1973 Code, which refers to “document” to include any painting,

drawing or photograph, or other visible representation. And again, the expression “document” has been defined in Section 29 of the 1860 Code, which reads thus:­

‘‘29. “Document”.—The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

Explanation 1.—It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.

Illustrations

A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.

A cheque upon a banker is a document.

A power­of­attorney is a document.

A map or plan which is intended to be used or which may be used as evidence, is a document.

A writing containing directions or instructions is a document.

Explanation 2.—Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.

Illustration

A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words “pay to the holder” or words to that effect had been written over the signature.’’

27. Additionally, it may be apposite to also advert to the definition of “communication devices” given in Section 2(1)(ha) of the 2000 Act. The said provision reads thus:­

‘‘2(1)(ha) ‘‘communication device’’ means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image’’

28. We may also advert to the definition of “information” as provided in Section 2(1)(v) of the 2000 Act. The same reads thus:­

‘‘2(1)(v) ‘‘information’’ includes data, message, text, images sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche’’

29. Even the definition of “document” given in the General Clauses Act would reinforce the position that electronic records ought to be treated as “document”. The definition of “document” in Section 3(18) of the General Clauses Act reads thus:­

‘‘3(18) ‘‘document’’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter”

30. It may be apposite to refer to the exposition in Halsbury’s laws of England15 dealing with Chapter – “Documentary and Real Evidence” containing the meaning of documentary evidence and the relevancy and admissibility thereof including about the audio

and video recordings. The relevant exposition reads thus:­

“(12) DOCUMENTARY AND REAL EVIDENCE

1462. Meaning of documentary evidence. The term ‘document’ bears different meanings in different contexts. At common law, it has been held that any written thing capable of being evidence is properly described as a document16, and this clearly includes printed text, diagrams, maps and plans17. Photographs are also regarded as documents at common law18.

Varying definitions have been adopted in legislation19. A document may be relied on as real evidence (where its existence, identity or appearance, rather than its content, is in issue20), or as documentary evidence. Documentary

15 Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure

16 R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.

17 A tombstone bearing an inscription is in this sense a document (see Mortimer v. M’Callan (1840) 6 M & W 58), as is a coffin­plate bearing an inscription (see R v. Edge (1842) Wills, Circumstantial Evidence (6th Edn.) 309).

18 See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160, ChD.

19 For the purposes of the Police and Criminal Evidence Act 1984, ‘document’ means anything in which information of any description is recorded: s. 118 (amended by the Civil Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the Criminal Justice Act 2003 Pt. 11 (ss. 98­141) (as amended) (evidence), the definition is the same (see s. 134(1)), save that for the purposes of Pt. 11 Ch. 3 (ss 137­141) (which includes the provision relating to refreshing memory (see s. 139; and para 1438 ante)) it excludes any recording of sounds or moving images (see s. 140).

20 See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855)

11 Exch 360. Documents produced by purely mechanical means may constitute real evidence even where reliance is placed on the content: The Statute of Liberty, Sapporo Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film evidence denotes reliance on a document as proof of its terms or contents21. The question of the authenticity of a document is to be decided by the jury22.

1463. The primary evidence rule. Under the ‘primary evidence rule’ at common law23, it was once thought necessary for the contents of any private document to be proved by production of the original document24. A copy of an original document, or oral evidence as to the contents of that document, was considered admissible only in specified circumstances, namely: (1) where another party to the proceedings failed to comply with a notice to produce the original which was in his possession (or where the need to produce it was so clear that no such notice was required)25; (2) where production of the original was shown to be impossible26; (3) where the original appeared to have been lost or destroyed27; and (4) where a third party in possession of the original lawfully declined to produce it28….

xxx xxx xxx

of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used as calculator); Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC (printout of evidential breath­ testing device). See also Garner v. DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005] EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real evidence generally see para 1466 post.

21 R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

22 R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA. The admissibility of a document is, following the general rule, a question for the judge: See para 1360 ante. A document which the law requires to be stamped, but which is unstamped, is admissible in criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the Finance Act 1999 s. 109(3), Sch 12 para 3(1), (5)).

23 As to the related ‘best evidence rule’ see para 1367 ante.

24 As to the admissibility of examined or certified copies of public documents at common law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.

25 A­G v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

26 Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival (1834) 1 Cr.M. & R 277.

27 R. v. Haworth (1830) 4 C & P 254

28 R. v. Nowaz (1976) 63 Cr.App. Rep 178, CA. A further possibility was that contents of a document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M & W 664

1466. Real evidence. Material objects or things (other than the contents of documents) which are produced as exhibits for inspection by a court or jury are classed as real evidence29. The court or jury may need to hear oral testimony explaining the background and alleged significance of any such exhibit, and may be assisted by expert evidence in drawing inferences or conclusions from the condition of that exhibit30.

Where a jury wishes to take an exhibit, such as a weapon, into the jury room, this is something which the judge has a discretion to permit31. Jurors must not however conduct unsupervised experiments32, or be allowed to inspect a thing which has not been produced in evidence33.

Failure to produce an object which might otherwise have been admissible as real evidence does not preclude the admission of oral evidence concerning the existence or condition of that object, although such evidence may carry far less weight34.

xxx xxx xxx

1471. Audio and video recordings. An audio recording is admissible in evidence provided that the accuracy of the recording

29 This include animals, such as dogs, which may be inspected to see if they are ferocious (Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been ill­treated, etc. Note however that statements (such as statements of origin) printed on objects may give rise to issues of hearsay if it is sought to rely on them as true: Comptroller of Customs v. Western Lectric Co. Ltd. [1966] AC 367, [1965] 3 All ER 599, PC.

30 Expert evidence may often be essential if the court or jury is to draw any kind of informed conclusions from their examination of the exhibit. It would be dangerous, for example, for a court or jury to draw its own unaided conclusions concerning the identity of fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC 100, [1971] 3 All ER 768, PC.

31 R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.

32 R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees [1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653, CA.

33 R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.

34 R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944] KB 120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85 Cr.App. Rep. 367, DC. If the object in question is in the possession of the prosecutor or of a third person, its production may generally be compelled by issue of a witness order under the Criminal Procedure (Attendance of Witnesses) Act, 1965 s. 2 (as substituted and amended) or under the Magistrates’ Court Act, 1980 s. 97 (as substituted and amended) (see para 1409 ante). The defendant cannot, however, be served with such an order, lest he be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12.

can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible35. However, that evidence should always be regarded with caution and assessed in the light of all the circumstances36.

A video recording of an incident which is in issue is admissible37. There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view38.”

(emphasis supplied)

31. In order to examine the purport of the term “matter” as found in Section 3 of the 1872 Act, Section 29 of the 1860 Code and Section 3(18) of the General Clauses Act, and to ascertain

35 R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. For the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr.App. Rep 365, CA. Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.

36 R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape recording admitted despite element of entrapment).

37 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.

38 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As to the admissibility of video recordings as evidence identifying the defendant see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of the defendant by still photographs taken by an automatic security camera see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.

whether the contents of the memory card can be regarded as “document”, we deem it appropriate to refer to two Reports of the Law Commission of India. In the 42nd Law Commission Report39, the Commission opined on the amendments to the 1860 Code. Dealing with Section 29 of the 1860 Code, the Commission opined as under:­

“2.56. The main idea in all the three Acts is the same and the emphasis is on the “matter” which is recorded, and not on the substance on which the matter is recorded. We feel, on the whole, that the Penal Code should contain a definition of “document” for its own purpose, and that section 29 should be retained.”

The said observation is restated in the 156th Report40, wherein the Commission opined thus:­

“11.08 Therefore, the term ‘document’ as defined in Section 29, IPC may be enlarged so as to specifically include therein any disc, tape, sound track or other device on or in which any matter is recorded or stored by mechanical, electronic or other means … … … The aforesaid proposed amendment in section 29 would also necessitate consequential amendment of the term “document” under section 3 of the Indian Evidence Act, 1872 on the lines indicated above.”

Considering the aforementioned Reports, it can be concluded

that the contents of the memory card would be a “matter” and

39 Forty­Second Report, Law Commission India, Indian Penal Code, June, 1971, 32­35

40 One Hundred Fifty­Sixth Report on the Indian Penal Code (Volume I), August, 1997, Law Commission of India, Chapter­XI

the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”.

32. It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen­drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen­drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India.

33. We do not wish to dilate further nor should we be understood to have examined the question of relevancy of the

contents of the memory card/pen­drive or for that matter the proof and admissibility thereof. The only question that we have examined in this appeal is: whether the contents of the memory card/pen­drive referred to in the chargesheet or the police report submitted to Magistrate under Section 173 of the 1973 Code, need to be furnished to the accused if the prosecution intends to rely on the same by virtue of Section 207 of the 1973 Code?

34. Reverting to the preliminary objection taken by the respondent for dismissing the appeal at the threshold because of the disclosure of identity of the victim in the memo of the special leave petition forming the subject matter of the present appeal, we find that the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code, and in the chargesheet/police report filed before the Magistrate. Even the objection regarding incorrect factual narration about the appellant having himself viewed the contents of the memory card/pen­drive does not take the matter any

further, once we recognize the right of the accused to get the cloned copies of the contents of the memory card/pen­drive as being mandated by Section 207 of the 1973 Code and more so, because of the right of the accused to a fair trial enshrined in Article 21 of the Constitution of India.

35. The next crucial question is: whether parting of the cloned copy of the contents of the memory card/pen­drive and handing it over to the accused may be safe or is likely to be misused by the accused or any other person with or without the permission of the accused concerned? In the present case, there are eight named accused as of now. Once relief is granted to the appellant who is accused No. 8, the other accused would follow the same suit. In that event, the cloned copies of the contents of the memory card/pen­drive would be freely available to all the accused.

36. Considering the principles laid down by this Court in

Tarun Tyagi (supra), we are of the opinion that certain conditions need to be imposed in the fact situation of the present

case. However, the safeguards/conditions suggested by the appellant such as to take help of experts, to impose watermarks on the respective cloned copies etc., may not be sufficient measure to completely rule out the possibility of misuse thereof. In that, with the advancement of technology, it may be possible to breach even the security seals incorporated in the concerned cloned copy. Besides, it will be well­nigh impossible to keep track of the misuse of the cloned copy and its safe and secured custody.

37. Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which the appellant may be advised. In that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with the CFSL. Similarly, the forensic report prepared by the CFSL, after

analyzing the cloned copy of the subject memory card/pen­drive, shall be kept confidential and shall not be allowed to be accessed by any other agency or person except the concerned accused or his authorized representative until the conclusion of the trial. We are inclined to say so because the State FSL has already submitted its forensic report in relation to the same memory card at the instance of the investigating agency.

38. Needless to mention that the appellant before us or the other accused cannot and are not claiming any expertise, much less, capability of undertaking forensic analysis of the cloned copy of the contents of the memory card/pen­drive. They may have to eventually depend on some expert agency. In our opinion, the accused, who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen­drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used

by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.

39. Considering that this is a peculiar case of intra­conflict of fundamental rights flowing from Article 21, that is right to a fair trial of the accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights. This principle has been enunciated in the case of Asha Ranjan v. State of Bihar41 wherein this Court held thus:­

“57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the “greater community interest” or “interest of the collective or social order” would be the principle to recognise and accept the right of one which has to be protected.

xxx xxx xxx

61. Be it stated, circumstances may emerge that may necessitate for balancing between intra­fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra­ conflict between the same fundamental right … … … Thus, there can be two individuals both having legitimacy to

41 (2017) 4 SCC 397

claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances … … … Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes “Rule of Law”. It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger public interest and serve the majesty of rule of law. … … …

xxx xxx xxx

86.1. The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial.

86.2. The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra­conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instil Rule of Law. A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.”

(emphasis supplied)

40. This Court in Mazdoor Kisan Shakti Sangathan v. Union of India42 has restated the legal position in the following terms:­

“61. Undoubtedly, right of people to hold peaceful protests and demonstrations, etc. is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances, etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar Road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well. Going by the dicta in Asha

Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 : (2017) 2 SCC (Cri) 376] , principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.”

(emphasis supplied)

41. We are conscious of the fact that Section 207 of the 1973 Code permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason. If it is an “electronic record”, certainly the ground predicated in the second proviso in

42 (2018) 17 SCC 324

Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. We are also conscious of the dictum in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein this Court has restated the cardinal principle that accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial.

42. Nevertheless, the Court cannot be oblivious to the nature of offence and the principle underlying the amendment to Section

327 of the 1973 Code, in particular sub­Section (2) thereof and insertion of Section 228A of the 1860 Code, for securing the privacy of the victim and her identity. Thus understood, the Court is obliged to evolve a mechanism to enable the accused to reassure himself about the genuineness and credibility of the contents of the memory card/pen­drive from an independent agency referred to above, so as to effectively defend himself during the trial. Thus, balancing the rights of both parties is imperative, as has been held in Asha Ranjan (supra) and

43 (1981) 2 SCC 109

Mazdoor Kisan Shakti Sangathan (supra). The Court is duty bound to issue suitable directions. Even the High Court, in exercise of inherent power under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.

43. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen­drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen­drive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution.

44. In conclusion, we hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides.

45. In view of the above, this appeal partly succeeds. The impugned judgment and order passed by the trial Court and the High Court respectively stand modified by giving option to the appellant/accused to the extent indicated hitherto, in particular paragraphs 37, 38 and 43.

46. Resultantly, the application filed by the appellant before the trial Court being Crl.M.P. No. 49/2018 in C.P. No. 16/2017 is partly allowed in the aforementioned terms.

47. We direct the trial Court to ensure that the trial in C.P. No. 16/2017 is concluded expeditiously, preferably within six months from the date of this judgment.

J (A.M. Khanwilkar)

J (Dinesh Maheshwari)

New Delhi;

November 29, 2019.

P. Gopalkrishnan @ Dileep  Versus State of Kerala and Anr.

Ramesh Dasu Chauhan and Another Vs. State of Maharashtra-04/07/19

Posted on by in Evidence Act 1872, MURDER, Supreme Court Judgments and tagged , , , .

Evidence Act-There is no gainsaying that confession made to a police officer cannot be proved as against a person accused of any offence and no confession made by a person while in police custody except made in the immediate presence of a Magistrate, can be proved against him in view of embargo created by Sections 25 and 26 of the Evidence Act. Section 27 of the Act nevertheless carves out an exception as it provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence while he is in police custody, “so much of such information”, regardless of it being a confession or not, may be proved, if it relates distinctly to the fact thereby discovered.

FROM: Division Bench of the High Court of Judicature at Bombay, Nagpur Bench

ACT: Sections 302 and 392 read with Section 34 of the I.P.C.

SUPREME COURT OF INDIA

Ramesh Dasu Chauhan and Another Vs. State of Maharashtra

[Criminal Appeal No. 1682 of 2012]

SURYA KANT, J.

1. The Sessions Judge, Nagpur vide judgment and order dated 26th February, 2003 convicted the appellants under Section 302 read with Section 34 of the Indian Penal Code (for brevity, “the I.P.C.”) and sentenced to undergo life imprisonment besides a fine of Rs.1,500/- each and in default thereof they were directed to undergo Rigorous Imprisonment for six months. They were further convicted under Section 392 read with Section 34, I.P.C. and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- each and in default thereof they were directed to undergo Rigorous Imprisonment for three months.

2. The appellants’ conviction and sentence was upheld by a Division Bench of the High Court of Judicature at Bombay, Nagpur Bench in Criminal Appeal No. 272/2003, decided on 11.04.2008. Both these judgments are under challenge in this 2nd Appeal.

BRIEF FACTS:

3. Deceased Kamlesh Kumari Trivedi, aged about 79 years used to reside along with her daughter Rani Trivedi and granddaughter Purnima Trivedi in Rajnigandha Apartments, Ambazari, Nagpur. Rani Trivedi was a school teacher and used to leave home for her work around 7.20 a.m. and return back in the evening. Purnima Trivedi was studying in M.A. in a college and she too used to leave for her classes at about 10.00 a.m. and return by afternoon. Deceased Kamlesh Kumari Trivedi, thus, would remain alone in the house during the afore stated period.

4. On the fateful day, i.e., 28th August, 2001, both Rani Trivedi and Purnima Trivedi left for their respective destinations while Kamlesh Kumari Trivedi was all by herself in the house. When Purnima Trivedi returned from College around 1.30 p.m., she found her grandmother (Kamlesh Kumari Trivedi) lying dead in the drawing room with visible signs of strangulation. The Onida T.V. set kept in the drawing room was found missing. Purnima Trivedi immediately rushed to her neighbours Raisaheb Chourasiya and Baliram Fulari and informed them about the incident. Both of them accompanied Purnima to the apartment. Baliram Fulari, on the request of Chourasiya, informed the police control room about the incident.

5. Raisaheb Chourasiya, noticed on the date of occurrence that two young boys had come on a red coloured motorcycle; stopped it in front of Rajnigandha Apartments; entered the apartment building and after some time vanished from the spot. Mr. Sevakram Thaokar, Inspector of Crime Branch, Nagpur rushed to the spot and on the basis of the information divulged by the neighbours, he carried out search operations and apprehended the appellants from near the Gupta Hotel in village Hingna. On personal search of one of the suspect, some cash amount and a silver coin was recovered; their motor cycle was seized and Onida T.V. was also then got recovered at the instance of first appellant (Ramesh). Crime No. 246/2001 under Section 302, 392/34 was registered. On consideration of the chargesheet, charges under Sections 302, 392/34, I.P.C. were framed to which the appellants pleaded not guilty and claimed trial.

6. The prosecution, in all, examined eleven witnesses to establish the charge, but none by the defence. The appellants in their statement under Section 313, Cr.PC, as well as in the cross-examination of prosecution witnesses, pleaded absolute denial and claimed to have been made a scapegoat by the police in order to cool the public rage down against the heinous crime.

7. Three points fell for consideration of the Learned Sessions Judge, namely,

(i) Whether deceased Kamlesh Kumari Trivedi died homicidal death?

(ii) Whether the prosecution was able to prove that accused Nos. 1 and 2 in furtherance of their common intention committed murder of Kamlesh Kumari Trivedi?

(iii) Whether the prosecution had further succeeded in proving that accused Nos. 1 and 2, in furtherance of their common intention, committed robbery of taking away Onida T.V., silver coin and cash amount of Rs.200/- from the custody of deceased Kamlesh Kumari Trivedi?

8. The Trial Court was alive to the situation that in order to prove a criminal charge by means of circumstantial evidence, it was imperative on the prosecution to establish beyond any doubt that –

(i) the circumstances from which the conclusion of guilt is to be drawn must be fully established;

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused;

(iii) the circumstances should be of conclusive nature and they should exclude any possible hypothesis except the one to be proved; and

(iv) the chain of evidence should be complete leaving no reasonable ground for the conclusion consistent with the innocence of the accused.

9. The Trial Court thereafter scrutinised the entire evidence within the framework of cited parameters and after an elaborate confabulation, it came to the conclusion that Kamlesh Kumari Trivedi died a homicidal death; the appellants were duly seen entering Rajnigandha Apartments at the most relevant time by Raisaheb Chourasiya (P.W.9), the recovery of Onida T.V., silver coin and a part of currency from the appellants was also a strong circumstance to nail them, who were consequently held guilty of the offence(s) under Sections 302 and 392 read with Section 34 of the I.P.C. and sentenced accordingly.

10. The High Court re-evaluated the prosecution evidence in its entirety and banking upon the statement of the star witness, Raisaheb Chourasiya (P.W.9) coupled with the deposition made by Sevakram Thaokar, Police Inspector, Crime Branch (P.W.11), it concurred with the Trial Court and dimissed the appeal.

11. We have heard Mr. Ekansh Bansal, Learned Counsel for the appellants and Mr. Nishant R. Katneshwarkar, Learned Counsel on behalf of the State and gone through the record with their assistance.

12. It was vehemently urged on behalf of the appellants that no Identification Test Parade was conducted before the Court to establish the presence of appellants at the place of crime, even though the star prosecution witness, Raisaheb Chourasiya (P.W.9) has acknowleged that the two young persons who came on the red coloured motorcycle had covered their faces with mufflers. The version of Raisaheb Chourasiya (P.W.9) was sought to be discredited on the plea that the appellants being in the age group of 30s, could not be roped in as young boys of 20-25 who were allegedly noticed entering Rajnigandha Apartments around the time when the occurrence took place.

Learned Counsel further argued that the appellants were never confronted with the alleged stolen items for identification, more so when the panch witnesses of alleged recovery have resiled and declared hostile. He thus, urged that crucial links in the formation of chain of circumstantial evidence are conspicuously missing so as to link the appellants with the offence. The prosecution has, therefore, failed to establish its case beyond reasonable doubt. Counsel for the State contrarily, maintained that its a proven case against the appellants and this Court need not reappraise the concurrent findings returned by the two Courts.

13. We find that the question which falls for consideration of this Court is whether the circumstantial evidence led in the instant case is so unimpeachable that it establishes the guilt of the appellants beyond the shadow of doubt.

14. The expression `circumstantial evidence’ has been the subject matter of consideration in a catena of decisions wherein it has been precisely defined as a combination of such facts that there is no escape for the accused because the facts taken as a whole do not admit to any inference but of his guilt. It has also been coined as a Complete Chain Link Theory, putting onus on the prosecution to prove beyond reasonable doubt, the chain of events which lead to only one conclusion, namely, the culpability of the accused.

15. This Court in Sharad Birdhi Chand Sharda v. The State of Maharashtra1 elaborately considered the standard of proof necessitated for recording a conviction on the basis of circumstantial evidence and laid down the five golden principles of standard of proof required to be established in such a case, which are paraphrased as follows:-

i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, these should not be explainable on any other hypothesis except that the accused is guilty;

iii) The circumstances should be conclusive in nature and tendency;

iv) They should exclude every possible hypothesis except the one to be proved; and

v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the acts must have been committed by the accused.

16. These precepts have been unvaryingly reiterated by this Court from time to time including recently in Manoj Kumar v. State of Uttarakhand2.

17. Let us now examine whether the prosecution has successfully established these well-known parameters in the case in hand?

18. The prosecution case foremostly hinges upon the version of Raisaheb Chourasiya (P.W.9). He earlier made a statement under Section 164, Cr.PC on 16.10.2001 and consistent with thereto he has unequivocally deposed that on 28.08.2001 at around 11.45 a.m., he was drying his hair in his apartment when two boys came on a red coloured motorcycle of Hero Honda make, which they parked in front of his neighbour Nag Devi’s apartment. The two boys went in the direction of Plot No. 94-95 and he thought that they might have come to see the house which was under construction.

He, however, noticed that the two boys opened the front gate of Rajnigandha Apartments and went inside. Meanwhile, Raisaheb Chourasiya got a call on phone and after attending to it for about 20 minutes, when he again looked for the Hero Honda Motorcycle, it was not there. Both the boys were in plain apparels and had put mufflers on their faces. He thereafter went to see one of the neighbours and sat in the verandah of the later’s house. After some time, Purnima Trivedi came crying and informed that her grandmother was not speaking and she was lying in a pool of blood. She also informed that someone had stolen their T.V. set. P.W.9 along with Purnima and one Baliram Fulari went inside the apartment and found that the grandmother of Purnima was lying dead and blood was oozing out of her nose.

He asked Purnima not to touch anything and let the police come and make the enquiry. He then asked his neighbour, Baliram Fulari to inform the police about the incident. On the same day at about 5.30 p.m., the police brought the two boys with the motorcycle to his house and he identified them as well as the motorcycle, for there were five stickers of `sindoor’ on the mudguard of the motorcycle and he also remembered its Registration Number.

Raisaheb Chourasiya (P.W.9) identified both the boys in Court-room also, namely, the appellants. Pertinently, there is not even a suggestion to the witness in his cross-examination that he was not present in his apartment or that he did not see the appellants entering the Rajnigandha Apartments. The only question put to the witness was apparently to remind him that he could not recognize the boys as they had covered their faces with mufflers, which he has categorically denied. The witness very emphatically says in his cross-examination that, “Incorrect to state that I have idedntified the accused except they are before the Court”. The defence has indeed miserably failed to cause any dent in the veracity or the capability of the witness to identify the two boys who came on the motorcycle and entered the front gate of Rajnigandha Apartments or his assertion that those two boys were none else than the appellants.

19. Baliram Fulari (P.W.3) has testified that on 28th August, 2001 around 1.30 p.m. one of his neighbours Raisaheb Chourasiya (P.W.9) came to his house and informed about the murder of the mother of Rani Trivedi (P.W.1) and the theft of some articles. Purnima Trivedi 10 (P.W.4) was also accompanying Raisaheb Chourasiya. He informed the police about the incident on the request made by Raisaheb Chourasiya and also gave registered number of the red coloured motorcycle to the police. Baliram Fulari (P.W.3) has specifically deposed that he informed Shri Kangle, D.C.P. of Crime Branch about the incident.

The only suggestion given in the cross-examination to Baliram Fulari, (P.W.3) is that no information was passed on to him either by Raisaheb Chourasiya or Purnima Trivedi. As against it, the witness has further clarified in his cross-examination that on the same day at about 5.30 p.m., the police brought the suspects to the place of incident. He thus fully corroborates the testimony of Raisaheb Chourasiya (P.W.9) and Purnima Trivedi (P.W.4) to the extent that the police brought two boys at the place of occurrence and both of them were seen by P.W.1, P.W.3, P.W.4 and P.W.9.

20. According to Rani Trivedi (P.W.1), she got an emergency phone call from her daughter around 2.30 p.m. about her mother having been assaulted and the incident of theft in their house. She immediately left for home and saw the bloodstains on the floor; that her mother was throttled and strangulated with her own sari and the police was present on the scene. She found that the cupboards in the room of their apartment were broken and the items were scattered. A silver coin of `Goddess Lakshmi’ along with cash amount of Rs.200/- besides Onida T.V. were missing. The thieves, however, could not break open the Godrej almirah in which valuables were kept. She has indubitably deposed that the police brought two persons in the evening to their flat and she identified them who were present in Court as accused Nos. 1 and 2. Her statement too is totally unruffled in the cross-examination. Rather, she has well-explained that Raisaheb Chourasiya (P.W.9) lives in the third house in row from her house.

21. Purnima Trivedi (P.W.4), grand daughter of the deceased chronically narrated the events which she saw after returning from college at about 1.15 p.m. She has deposed that on reaching the flat, she kept ringing the bell but got no response, therefore, she tried to open the main door and pushed it due to which the pelmet fell down. She found on entering the flat that her grandmother was lying in a pool of blood in the drawing room. She sprinkled water on her face thinking she might be alive. While she was looking around she found that Onida T.V. was missing. She found that cash amount of Rs.200/- and a silver coin were also missing from the cubboard. She immediately ran to inform her neighbours and rushed to the house of Raisaheb Chourasiya (P.W.9), who stayed two houses away from their apartment. She told him about the incident. No meaningful question was asked to her in the cross-examination to indicate any overcolouring in her version.

22. We may now turn to the statement of Sevakram Thaokar (P.W.11), the Investigating Officer-cum-Inspector of Crime Branch. He along with the staff immediately reached at the spot i.e. Rajnigandha Apartments on receipt of the wireless message and learnt through Raisaheb Chourasiya (P.W.9) about two persons coming on a red coloured motorcycle. He started searching for the suspects without any loss of time and reached upto village Hingna where he found a red coloured motorcycle in front of Gupta Hotel. There were two persons with the motorcycle, who were brought to Gupta Hotel and he called two Panchas so as to interrogate the suspects in their presence. The two suspects, namely, the appellants were eventually arrested and a sum of Rs.231/- and one HMT wrist watch was seized from appellant No. 1 (Ramesh). Another sum of Rs. 142/- with silver coin and one goggle was recovered from appellant No. 2 (Kamlesh). Their Hero Honda Motorcycle was seized vide Ext. P-27. Appellant No. 1 also got recovered Onida T.V. from his residence at Wana Dongri vide recovery Ext. P-25.

23. As per the post mortem report of Kamlesh Kumari Trivedi, the medical officer found following four ante-mortem wounds given in 13 Column 17 of the medical legal report Ext. P-17:-

“1. Ligature mark present over front of neck, below thyroid cartilage, transversely placed. Completely encircling the neck except over nape of neck at the site of plait, on both side of neck ligature marked 6 cms below tip of both mastoid processes, length of ligature mark 30 Cms, breadth, 2.5 cm. slightly grooved, dry hard.

2. Contused abrasion present over posterior aspect of right forearms 2 cm x 2 cm. reddish brown,

3. Contused abrasion present over left side of neck, 2 cm below left angle of mandible 4 cm away from middle, obliquely placed 2 cm. x 1 cm. Reddish Brown.

4. Contused abrasion present over left side of neck, 2 cm. Lateral to injury No. 3 size 1 cm x 1 cm reddish brown.”

24. The medical officer unambiguously opined that injury No. 1 of Column 17 along with internal damage was sufficient to cause death of the victim in the ordinary course of nature. The cause of death was `Asphyxia’ i.e. due to ligature strangulation.

25. From the nature of ante-mortem injuries suffered by the deceased as described in the inquest panchnama Ext. P-12 read with the post mortem report, it can be safely believed that the death was `homicidal’ within the meaning of Section 299 I.P.C. The medical evidence in this regard is fully corroborated by the statement of Rani Trivedi (P.W.1), Baliram Fulari (P.W.3), Purnima Trivedi (P.W.4) and Raisaheb Chourasiya (P.W.9) and thus there is no room for doubt that the deceased Kamlesh Kumari Trivedi died a homicidal death.

26. There is clinching evidence on record to establish that the appellants were seen around 11.45 a.m. entering the front gate of Rajnigandha Apartments where the deceased was residing. They left the place after 20 minutes or so. As per the eye-witness’s account the appellants were lastly seen nearest to the place of occurrence before they disappeared.

27. There is no gainsaying that confession made to a police officer cannot be proved as against a person accused of any offence and no confession made by a person while in police custody except made in the immediate presence of a Magistrate, can be proved against him in view of embargo created by Sections 25 and 26 of the Evidence Act. Section 27 of the Act nevertheless carves out an exception as it provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence while he is in police custody, “so much of such information”, regardless of it being a confession or not, may be proved, if it relates distinctly to the fact thereby discovered.

Section 27 of the Evidence Act thus enables the cliched use of a custodian statement made in the ordinary course of events. The statement made by an accused while in police custody can be split in two parts and to the extent of it being a disclosure statement which is the immediate cause of discovering new 15 facts, would be legally admissible in evidence though the remainder of such statement may be liable to be discarded. The Investigating Officer, Sevakram Thaokar (P.W.11) has very emphatically deposed that out of the stolen items, Onida T.V. set was got recovered at the instance of the first appellant from his house. Similarly, the silver coin and a part of the stolen currency was recovered from the second appellant. This is not the appellants’ case that they were forced to make the incriminating statements under any threat.

They have chosen to defend themselves only on the basis of denial. The revelation made by the Investigating Officer to the limited extent of recovery of the stolen items pursuant to the disclosure statements made by the appellants, therefore, falls within the four-corners of Section 27 of the Evidence Act and has been rightly relied upon by the Courts below.

28. True it is that the statement of a police officer has to be scrupulously scrutinised and the Court would cautiously and suspiciously read the same for evaluating the cumulative effect of the entire evidence on record. If the statement of PW-11 is scanned in its entirety, it stands out that no sooner Raisaheb Chourasiya (P.W.9) gave the description of two young persons who came on a red coloured motorcycle or their entry into Rajnigandha Apartments, the police inspector swung into action and apprehended them within no loss of 16 time. The two persons, namely, the appellants were brought back to Rajnigandha Apartments and they were duly identified by Raisaheb Chourasiya (P.W.9). Baliram Fulari (P.W.3) and Rani Trivedi (P.W.1) also saw and later on identified them in their depositions. Since the appellants have not disputed their identity in the cross-examination of Raisaheb Chourasiya (P.W.9) or of Rani Trivedi (P.W.1), it is too late for them to allege that no Test Identification Parade was conducted.

29. It is no longer debatable that the Identification Parade of the accused before the Court is not the main substantive piece of evidence, rather it is corroborative in nature.

[Please see:

(i) Rafikul Alam v. State of West Bengal (2007) SCC Online Cal. 728 or (2008) 1 CHN 685;

(ii) Navaneethakrishnan v. State by Inspector of Police (2018) 16 SCC 161].

30. There are more than one reasons to trust P.W.9 (Raisaheb Chourasyia).

Firstly, there is no suggestion or even a whisper of any animosity between Raisaheb Chourasyia and the appellants. He had no motive to falsely implicate the appellants.

Secondly, the presence of the appellants coming on red coloured motorcycle and their entry to Rajnigandha Apartments, as seen by the witness, has not been expressly denied in his cross-examination.

Thirdly, P.W.9 being resident of the same Complex, is a natural and not a `chance’ witness.

Fourthly, Raisaheb Chourasiya’s version has been fully corroborated by the other prosecution witnesses like Rani Trivedi (P.W.1), Baliram Fulari (P.W.3) and Purnima Trivedi (P.W.4).

Fifthly, he is consistent throughout, be it may his statement under Section 164, Cr.PC and/or deposition on oath.

Sixthly, the attempt made on the character assassination of the witness has miserably failed. We thus find no ground to suspect P.W.9 for non-existent reasons.

31. The appellants, in all probabilities, were present in Rajnigandha Apartments at the time of occurrence. They have failed to explain any other reason of their presence. They have also not questioned their identity by Raisaheb Chourasiya (P.W.9) and Rani Trivedi (P.W.1). They have not doubted or condemned the police officer (P.W.11) of falsely planting any recovery on them. Further, all the stolen items recovered at the instance of the appellants have been duly identified by Rani Trivedi (P.W.1) and Purnima Trivedi (P.W.4) as their belongings and thus the link between the crime and the recovered items has been conclusively established. The appellants having been lastly seen near the scene of crime, their complete silence and/or evasive statement under Section 313, Cr.PC, does not inspire confidence to discard the prosecution case.

32. Both the Courts below have weighed the evidence to reach a definite conclusion that the appellants and the appellants alone entered the apartment of Kamlesh Kumari Trivedi and committed her murder by strangulation with a motive to commit robbery in the house. There is no factual or legal infirmity in the findings returned by the Courts below, which may call for any interference by this Court. The Appeal is accordingly dismissed.

J. (DEEPAK GUPTA)

J. (SURYA KANT)

NEW DELHI

04.07.2019

1(1984) 4 SCC 116

2(2019) 5 SCC 663

Evidentiary value of confession

Posted on by in Evidence Act 1872 and tagged , .
Online Law Library

In Yakub Abdul Razak Memon, after referring to several judgments of this Court on the evidentiary value of confession particularly judgment of this Court in Nalini, this Court summed up the position of law on the evidentiary value of confession. The relevant conclusions could be quoted.

105. To sum up, it can easily be inferred that the position of law on the evidentiary value of confession is as under:

(i) If the confessional statement is properly recorded satisfying the mandatory provision of Section 15 of TADA and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not, is a matter for the court to consider on the basis of the facts of each case.

(iii) With regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement.

In Kalawati and Another Vs. The State of Himachal Pradesh, supreme  Court stated that the amount of credibility to be attached to a retracted confession would depend upon the facts and circumstances of each case. Again in State of Tamil Nadu Vs. Kutty @ Lakshmi Narasimhan, Apex Court stated that a retracted confession may form legal basis for conviction if the court is satisfied that the confession was true and was voluntarily made. Following these judgments in Yakub Abdul Razak Memon, this Court held that where the original confession was truthful and voluntary, the court can rely upon such confession to convict the accused in spite of a subsequent retraction and its denial in statement u/s 313 of the Code. The law is thus crystallized. A retracted confessional statement is therefore not always worthless.

Testimony of the approver

Posted on by in Evidence Act 1872 and tagged .

Supreme Court in Sarwan Singh Vs. The State of Punjab, wherein it has been held as follows:

…An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver’s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.

8….Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts.

In Ravinder Singh Vs. State of Haryana, , this Court has observed that:

An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. … Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.

 Similar principles have been reiterated in Mrinal Das and Others Vs. The State of Tripura, .

 In A. Deivendran Vs. State of T.N., , the Court has registered the view that there cannot be any dispute with regard to the proposition that ordinarily an approver’s statement has to be corroborated in material particulars. Certain clinching features of involvement disclosed directly to an accused by an approver must be tested qua each accused from independent credible evidence and on being satisfied, the evidence of an approver can be accepted. The Court further observed that the extent of corroboration that is required before the acceptance of the evidence of the approver would depend upon the facts and circumstances of the case, however, the corroboration required must be in material particulars connecting each of the accused with the offence, or in other words, the evidence of the approver implicating several accused persons in the commission of the offence must not only be corroborated generally but also qua each accused but that does not mean that there should be independent corroboration of every particular circumstance from an independent source. The court proceeded to state that all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and the corroboration could be both by direct or circumstantial evidence. Be it noted, the said principle was stated on the basis of pronouncements in Ramanlal Mohanlal Pandya Vs. The State of Bombay, , Tribhuvan Nath Vs. The State of Maharashtra, , Ram Narain Vs. State of Rajasthan, and Balwant Kaur Vs. Union Territory of Chandigarh, .

In Chandan and Another Vs. State of Rajasthan, , the Court held that so far as the question about the conviction based on the testimony of the accomplice is concerned, the law is settled and it is established as a rule of prudence that the conviction could only be based on the testimony of the accomplice if it is thought reliable as a whole and if it is corroborated by independent evidence either direct or circumstantial, connecting the accused with the crime.

In Haroon Haji Abdulla Vs. State of Maharashtra, , the view in this regard was expressed in the following terms:

An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false. But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and next connecting the accused, against whom the accomplice evidence is used, with the crime.

In Major E.G. Barsay Vs. The State of Bombay, , it has been observed that this Court had never intended to lay down that the evidence of an approver and the corroborating pieces of evidence should be treated in two different compartments, that is to say, the court shall first have to consider the evidence of the approver dehors the corroborated pieces of evidence and reject it if it comes to the conclusion that his evidence is unreliable; but if it comes to the conclusion that it is reliable, then it will have to consider whether that evidence is corroborated by any other evidence.

 In Renuka Bai @ Rinku @ Ratan and Another Vs. State of Maharashtra, , the Court held that the evidence of the approver is always to be viewed with suspicion especially when it is seriously suspected that he is suppressing some material facts.

In Ranjeet Singh and Another Vs. State of Rajasthan, , the Court observed that while looking for corroboration, one must first look at the broad spectrum of the approver’s version and then find out whether there is other evidence to lend assurance to that version. The nature and extent of the corroboration may depend upon the facts of each case and the corroboration need not be of any direct evidence that the accused committed the crime. The corroboration even by circumstantial evidence may be sufficient.

Yashwant Sinha & Ors. Vs. Central Bureau of Investigation through its Director & ANR – 10/04/2019

Posted on by in EVIDENCE, Evidence Act 1872, Official Secrets Act, 1923, Supreme Court Judgments, Writ and tagged , .
SUPREME COURT OF INDIA JUDGMENTS

Under the common law both in England and in India the context for material being considered by the court is relevancy. There can be no dispute that the manner in which evidence is got namely that it was procured in an illegal manner would not ordinarily be very significant in itself in regard to the courts decision to act upon the same. Documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest.

DATE:- April 10, 2019

ACTS:-Sections 3 and 5 of the Official Secrets Act, 1923

BENCH:- CJI. RANJAN GOGOI, J. SANJAY KISHAN KAUL, J. K.M. JOSEPH

SUPREME COURT OF INDIA

Yashwant Sinha & Ors. Vs. Central Bureau of Investigation through its Director & ANR.

[Review Petition (Criminal) No. 46 of 2019]

[Writ Petition (Criminal) No. 298 of 2018]

[M.A.No. 58/2019 In W.P. (CRL.) 225/2018 R.P. (CRL.) No. 122/2019 In W.P. (Crl.) 297/2018]

[M.A. No. 403/2019]

[W.P. (CRL.) No. 298/2018 R.P.(C) No. 719/2019 In W.P.(C) 1205/2018]

RANJAN GOGOI, CJI

1. A preliminary objection with regard to the maintainability of the review petition has been raised by the Attorney General on behalf of the respondents. The learned Attorney General contends that the review petition lacks in bona fides inasmuch as three documents unauthorizedly removed from the office of the Ministry of Defence, Government of India, have been appended to the review petition and relied upon by the review petitioners.

The three documents in question are:

(a) An eightpage note written by three members of the Indian Negotiating Team (‘INT’) charged in reference to the Rafale Deal (note dated 01.06.2016)

(b) Note of the Ministry of Defence (Government of India), F.No. AirHQ/S/96380/3/ASR PCXXVI (Marked Secret under the Official Secrets Act) (c) Note10 written by S.K. Sharma (Deputy Secretary, MoD, AirIII), Note dated 24.11.2015 (Marked Secret under the Official Secrets Act)

2. It is contented that the alleged unauthorized removal of the documents from the custody of the competent authority of the Government of India and the use thereof to support the pleas urged in the review petition is in violation of the provisions of Sections 3 and 5 of the Official Secrets Act, 1923. It is further contended that the documents cannot be accessed under the Right to Information Act in view of the provisions contained in Section 8(1)(a) of the said Act. Additionally, the provisions contained in Section 123 of the Indian Evidence Act, 1872 have been pressed into service and privilege has been claimed so as to bar their disclosure in the public domain. Section 3, 5(1) of the Official Secrets Act; Section 8(1)(a) and 8(2) of the Right to Information Act and Section 123 of the Evidence Act on which the learned Attorney has relied upon is extracted below.

3. Penalties for spying.

(1) If any person for any purpose prejudicial to the safety or interests of the State –

(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or

(b) makes any sketch, plan, model or note which is calculated to be or might be or is intended to be directly or indirectly, useful to any enemy; or

(c) obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States:

he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.

(2) On a prosecution for an offence punishable under this section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, information, code or password shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.

5. Wrongful communication, etc., of information.

(1) If any person having in his possession or control any secret official code or password or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person 5 holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract

(a) willfully communicates the code or password, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorized to communicate it, or a Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate it; or

(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety of the State; or

(c) retains the sketch, plan, model, article, note or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or willfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or (d) fails to take reasonable care of, or so conducts himself as to endanger the safety of the sketch, plan, model, article, note, document, secret official code or password or information; He shall be guilty of an offence under this section.

(2) xxxx xxxx xxxx xxxx

(3) xxxx xxxx xxxx xxxx

8. Exemption from disclosure of information. –

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) xxxx xxxx xxxx xxxx

(c) xxxx xxxx xxxx xxxx

(d) xxxx xxxx xxxx xxxx

(e) xxxx xxxx xxxx xxxx

(f) xxxx xxxx xxxx xxxx

(g) xxxx xxxx xxxx xxxx

(h) xxxx xxxx xxxx xxxx

(i) xxxx xxxx xxxx xxxx

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

(3) xxxx xxxx xxxx xxxx

Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.

123. Evidence as to affairs of State. No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

3. The three documents which are the subject matter of the present controversy, admittedly, was published in ‘The Hindu’ newspaper on different dates in the month of February, 2019. One of the documents i.e. Note18 of the Ministry of Defence was also published in ‘The Wire’ a member of the Digital Print Media.

4. The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu’ newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech.

No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice. In fact, the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions commencing from Romesh Thappar vs. State of Madras 1 and Brij Bhushan vs. The State of Delhi 2. Though not in issue, the present could very well be an appropriate occasion to recall the views expressed by this Court from time to time. Illustratively and only because of its comprehensiveness the following observations in Indian Express Newspapers (Bombay) Private Limited vs.Union of India may be extracted:

“The freedom of press, as one of the members of the Constituent Assembly said, is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions. James Madison when he offered the Bill of Rights to the Congress in 1789 is reported as having said: “The right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of this Government” (See, 1 Annals of Congress (178996) p. 141).

Even where there are no written constitutions, there are well established constitutional conventions or judicial pronouncements securing the said freedom for the people. The basic documents of the United Nations and of some other international bodies to which reference will be made hereafter give prominence to the said right. The leaders of the Indian independence movement attached special significance to the freedom of speech and expression which included freedom of press apart from other freedoms. During their struggle for freedom, they were moved by the American Bill of Rights containing the First Amendment to the Constitution of the United States of America which guaranteed the freedom of the press. Pandit Jawaharlal Nehru in his historic resolution containing the aims and objects of the Constitution to be enacted by the Constituent Assembly said that the Constitution should guarantee and secure to all the people of India among others freedom of thought and expression.

He also stated elsewhere that “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press” [See, D. R Mankekar: The Press under Pressure (1973) p. 25]. The Constituent Assembly and its various committees and subcommittees considered freedom of speech and expression which included freedom of press also as a precious right. The Preamble to the Constitution says that it is intended to secure to all citizens among others liberty of thought expression, and 10 belief. In Romesh Thappar v. State of Madras 4 and Brij Bhushan v. The State of Delh i5, this Court firmly expressed its view that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2) and thereby made it clear that there could not be any interference with that freedom in the name of public interest.

Even when clause (2) of Article 19 was subsequently substituted under the Constitution (First Amendment) Act, 1951, by a new clause which permitted the imposition of reasonable restrictions on the freedom of speech and expression in the interests of sovereignty and integrity of India the security of the State, friendly relations with foreign States, public order, decency or morality in relation to contempt of Court defamation or incitement to an offence, Parliament did not choose to include a clause enabling the imposition of reasonable restrictions in the, public interest.”

A later view equally eloquent expressed by this Court in Printers (Mysore) Limited vs. Assistant Commercial Tax Officer 6 may also be usefully recapitulated. “Freedom of press has always been a cherished right in all democratic countries. The newspapers not only purvey news but also ideas, opinions and ideologies besides much else. They are supposed to guard public interest by bringing to fore the misdeeds, failings and lapses of the government and other bodies exercising governing power. Rightly, therefore, it has been described as the Fourth Estate. The democratic credentials of a State is judged today by the extent of freedom the press enjoys in that State. According to Justice Douglas (An Almanac of Liberty) “acceptance by government of a dissident press is a measure of the maturity of the nation”.

The learned Judge observed in Terminiello v. Chicago, (1949) 93 L.Edn. 1131., that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effect as it presses for acceptance of an idea. …There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardisation of ideas either by legislatures, courts, “or dominant political or community ground”.

The said observations were of course made with reference to the First Amendment to the U.S. Constitution which expressly guarantees freedom of press but they are no less relevant in the India context; subject, of course, to clause (2) of Article 19 of our Constitution. We may be pardoned for quoting another passage from Hughese, C.J., in De Jonge v. State of Oregon, (1937) 299 U.S. 353, to emphasise the fundamental significance of free speech.

The learned Chief Justice said: “the greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, ferrets and free assembly in order to maintain the opportunity for free political 12 discussion, to the end that Government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”

It is true that very often the press, whether out of commercial reason or excessive competition, descends to undesirable levels and may cause positive public mischief but the difficulty lies in the fact, recognised by Thomas Jefferson, that this freedom “cannot be limited without being lost”. Thomas Jefferson said, “it is, however, an evil for which there is no remedy; our liberty depends on the freedom of the press and that cannot be limited without being lost”. (In a letter to Dr. J. Currie, 1786). It is evident that “an able, disinterested, publicspirited press, with trained intelligence to know the right and courage to do it, can preserve that public virtue without which popular government is a sham and a mockery.

A cynical, mercenary, demagogic press will produce in time a people as base as itself. The power to mould the future of the Republic will be in the hands of the journalism of future generations”, as stated by Joseph Pulitzer.”

5. The above views of the Supreme Court of India on the issue of the freedom of the press has been echoed by the U.S. Supreme Court in New York Times Company vs. United States 7 wherein Marshall, J. refused to recognize a right in the executive government to seek a restraint order or publication of certain papers titled “Pentagon Papers” primarily on the ground that the first Amendment guaranteed freedom of the press and 18 U.S. Code § 793 did not contemplate any restriction on publication of items or materials specified in the said Code. By a majority of 6:3 the U.S. Supreme Court declined to pass prohibitory orders on publication of the “Pentagon Papers” on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers.

We do not see how and why the above principle of law will not apply to the facts of the present case. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.

6. Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of ‘The Hindu’ newspaper. That apart, as held in S.P. Gupta vs. Union of India a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised.

Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value. As the claim of immunity under Section 123 of the Indian Evidence 8 AIR 1982 SC, 149 15 Act is plainly not tenable, we do not consider it necessary to delve into the matter any further.

7. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in ‘The Hindu’ newspaper on different dates. That apart, even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court? In Pooran Mal vs. Director of Inspection (Investigation) of Income Tax, New Delhi 9 this Court has taken the view that the “test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.”

8. Insofar as the Right to Information Act is concerned in Chief Information Commissioner vs. State of Manipur this Court had occasion to observe the object and purpose behind the enactment of the Act in the following terms: “The preamble (of the Right to Information Act, 2005) would obviously show that the Act is based on the concept of an open society.

As its preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.”

9. Section 8(2) of the Right to Information Act (already extracted) contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under subsection (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.

10. An omnibus statement has been made by the learned Attorney that there are certain State actions that are outside the purview of judicial review and which lie within the political domain. The present would be such a case. In the final leg of the arguments, the learned Attorney General states that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. The learned Attorney General thus exhorts us to dismiss this case, in limine, in light of public policy considerations.

11. All that we would like to observe in this regard is a reiteration of what had already been said by this Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala 11 “Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge Made Law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena.

That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.” (Justice Khanna – para 1535)

12. In the light of the above, we deem it proper to dismiss the preliminary objections raised by the Union of India questioning the maintainability of the review petitions and we hold and affirm that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of the contents of the three documents, admissibility of which, in the judicial decision making process, has been sought to be questioned by the respondents in the review petitions.

CJI. [RANJAN GOGOI]

J. [SANJAY KISHAN KAUL]

NEW DELHI

APRIL 10, 2019

1 AIR 1950 SC 124

2 AIR 1950 SC 129

3 1985(1) SCC 641

4 AIR 1950 SC 124

5 AIR 1950 SC 129

6 1994 (2) SCC 434

7 403 U.S. 713 (1971)

8 AIR 1982 SC, 149

9 AIR 1974 SC 348

10 (2011) 15 SCC,1

11 AIR 1973 SC 1461

Yashwant Sinha & Ors. Vs. Central Bureau of Investigation through Its Director & ANR.

[Review Petition (Criminal) No. 46 of 2019 in Writ Petition (Criminal) No.298 of 2018]

[M.A.No.58/2019 in W.P. (CRL.) No.225/2018

[R.P. (CRL.)No.122/2019 in W.P. (CRL.) No.297/2018]

[M.A.No.403/2019 in W.P. (CRL.) No.298/2018]

[R.P.(C)No.719/2019 in W.P.(C)No.1205/2018]

O R D E R

K.M. JOSEPH,J.

1. I have read the order proposed in the matter by the learned Chief Justice. While I agree with the decision, I think it fit to give the following reasons and hence, the concurring order:-

2. I do agree with the observations made by the learned chief Justice in regard to the importance which has been attached to the freedom of Press. The Press in India has greatly contributed to the strengthening of democracy in the country. It will have a pivotal role to play for the continued existence of a vibrant democracy in the country. It is indisputable that the press out of which the visual media in particular wields power, the reach of which appears to be limitless. No segment of the population is impervious to its influence. In Rajendra Sail v. M.P. High Court Br Association and Others 2005 (6) SCC 109, this Court dealing with a case under the Contempt of Court Act held inter alia as follows:

“31. The reach of the media, in the present times of 24-hour channels, is to almost ever nook and corner of the world. Further, large number of people believe as correct that which appears in media, print or electronic……”

(emphasis supplied)

It must realise that its consumers are entitled to demand that the stream of information that flows from it, must remain unpolluted by considerations other than truth.

3. I would think that freedom involves many elements. A free person must be fearless. Fear can be of losing all or any of the things that is held dear by the journalist. A free man cannot be biased. Bias comes in many forms. Bias if it is established as per the principles which are applicable is sufficient to vitiate the decisions of public authorities. The rule against bias is an important axiom to be observed by Judges. Equally the Press including the visual media cannot be biased and yet be free. Bias ordinarily implies a pre-disposition towards ideas or persons, both expressions to be comprehended in the broadest terms. It may stem from personal, political or financial considerations.

Transmitting biased information, betrays absence of true freedom. It is, in fact, a wholly unjustifiable onslaught on the vital right of the people to truthful information under Article 19(1)(a) which, in turn, is the bedrock of many other rights of the citizens also. In fact, the right of the Press in India is no higher than the right of the citizens under Article 19(1)(a) and is traced to the same provision. The ability of truth to be recognised by a discerning public in the supposedly free market place of ideas forms much of the basis for the grant of the unquestionable freedom to the Press including the Media Houses. If freedom is enjoyed by the Press without a deep sense of responsibility, it can weaken democracy.

In some sections, there appears to be a disturbing trend of bias. Controlling business interests and political allegiances appear to erode the duty of dispassionate and impartial purveying of information. In this regard in an article styled ‘the Indian Media’ which is annexed to the Autobiography under the title “Beyond the Lines” veteran journalist Late Shri Kuldip Nayyar has voiced the following lament: “Journalism as a profession has changed a great deal from what it was in our times. I feel acute sense of disappointment, not only because it has deteriorated in quality and direction but also because I do not see journalist attempting to revive the values ones practiced. The proliferation of newspapers and television channels has no doubt affected the quality of content, particularly reporting. Too many individuals are competing for the same space. What appals me most is that editorial primacy has been sacrificed at the alter of commercialism and vested interests. It hurts to see many journalists bending backwards to remain handmaidens of the proprietors, on the one hand, and of the establishment, on the other. This is so different from what we were used to.”

4. The exhortation as to who are the true beneficiaries of the freedom of speech and the Press 4 was articulated in the judgment of the U.S. Supreme Court in Time v. Hill 385 US 374 in the following words: “The constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people.”

(emphasis supplied)

5. In Indian Express Newspapers (Bombay) Private Ltd. And Others v. Union of India 1985 (1) SCC 641, this Court made the following observations: “……………The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect ‘themselves.” (Per Lord Simon of Glaisdale in Attorney- General vs. Times Newspapers Limited (1973) 3 ALL ER 54). Freedom of expression, as learned writers have observed, has four broad social purposes to serve:

(i) it helps an individual to attain self fulfilment,

(ii) it assists in the discovery of truth,

(iii)it strengthens the capacity of an individual in participating in decision making, and

(iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. …………..”

6. The wise words of Justice Douglas to be found in his dissenting judgment in Dennis v. United States 341 US 494 reminds one of the true goal of free speech and consequently the role of a free press. The same reads as under: “Free speech has occupied an exalted position because of the high service it has given society. Its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. When idea compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilzations apart. Full and free discussion has indeed been the first article of our faith. We have founded our political system on it.

It has been the safeguard of every religious, political, philosophical, economic and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest. This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world.”

7. Law in India relating to Crown privilege as it was originally styled in England is mainly embedded in a statutory provision namely Section 123 of the Indian Evidence Act. Also Section 124 of the said Act is relied upon in the affidavit of the Secretary. Section 124 of the Indian Evidence Act, 1872 reads as follows:-

“124. Official communications. – No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.” There can be no matter of doubt that Section 124 is confined to public officers and the decisive aspect even under Section 124 is the protection of public interest.

8. Section 162 deals with the aspect of inspection of documents covered by privilege. In England, the law relating to privilege has been entirely court made. It cannot be in dispute that the claim for privilege under Section 123 of the Indian Evidence Act being based on public policy cannot be waived (see in this regard judgment of this 7 Court in M/s. Doypack Systems Pvt. Ltd. Vs. Union of India and Others 1988 (2) SCC 299 at page 327). The basis for the claim of privilege is and can only be public interest.

9. In the judgment of this Court in State of U.P. v. Raj Narain; AIR 1975 SC 865, Chief Justice A.N. Ray speaking on behalf of the Constitution Bench observed:-

“The Court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See 1973 AC 388 (supra) at p. 40).

To illustrate, the class of documents which would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State and high level interdepartmental minutes.”

10. I may also refer to the following discussion contained in S.P. Gupta vs. Union of India 1981 (Suppl) SCC 87 which has been also followed by the Bench in M/s. Doypack Systems Pvt. Ltd. Vs. Union of India and Others 1988 (2) SCC 299.

“45………..”It is settled law and it was so clearly recognised in Raj Narain’s case 1975 (4) SCC 428 that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognises that there may be classes of documents which in the public interest should be immune from disclosure. There is one such class of documents which for years has been recognised by the law as entitled in the public interest to be protected against disclosure and that class consists of documents which it is really necessary for the proper functioning of the public service to withhold from disclosure.

The documents falling within this class are granted immunity from disclosure not because of their contents but because of the class to which they belong. This class includes cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and despatches from ambassadors abroad (vide Conway v. Rimmer, [1968] Appeal Cases 910 at pp. 952, 973, 979, 987 and 993 and Reg v. Lewes Justices, ex parte Home Secretary, [1973] A.C. 388 at 412, papers brought into existence for the purpose of preparing a submission to cabinet (vide Lanyon Property Ltd. v. Commonwealth, 129 Commonwealth Law Reports 650) and indeed any documents which relate to the framing of government policy at a high level (vide Re. Grosvenor Hotel, London [1964] 3 All E.R. 354 (CA)”. The Court in Doypack (supra) held as follows:-

“46. Cabinet papers are, therefore, protected from disclosure not by reason of their contents but because of the class to 9 which they belong. It appears to us that Cabinet papers also include papers brought into existence for the purpose of preparing submission to the Cabinet. See Geoffrey Wilson cases and Materials on Constitutional and Administrative Law, 2nd edn., pages 462 to 464. At page 463 para 187, it was observed:

“The real damage with which I are concerned would be caused by the publication of the actual documents of the Cabinet for consideration and the minutes recording its discussions and its conclusions. Criminal sanctions should apply to the unauthorised communication of these papers.” See in this Connection State of Bihar v. Kripalu Shankar, AIR 1987 SC 1554 at page 1559 and also the decision of Bachittar Singh v. State of Punjab [1962] Suppl. 3 SCR 713. Reference may also be made to the observations of Lord Denning in Air Canada and others v. Secretary of State, [1983] 1 All ER 161 at 180.”

11. In fact, the foundation for the law relating to privilege is contained in the candour principles and also the possibility of ill-informed criticism. Regarding candour forming the premise I find the following discussion in the decision of this Court in S.P. Gupta’s case (supra). “We agree with these learned Judges that the need for candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class, but as pointed out by Gibbs, ACJ in Sankey v. Whitlam (1978) 21 Australian LR 505:53, it would not be altogether unreal to suppose “that in some matters at least communications between ministers and servants of the Crown may be more frank and candid if these concerned believe that they are protected from disclosure” because not all Crown servants can be expected to be made of “sterner stuff”.

The need for candour and frankness must therefore certainly be regarded as a factor to be taken into account in determining whether, on balance, the public interest lies in favour of disclosure or against it (vide: the observations of Lord Denning in Neilson v, Lougharne (1981) 1 All ER 829 at P. 835.”

12. Regarding the other premise for supporting the claim of privilege namely the possibility that disclosure will occasion ill-informed criticism and impair the smooth functioning of the Governmental machine, I notice the following in S.P. Gupta’s case in paragraph 72 which read as follows:

“72. There was also one other reason suggested by Lord Reid in Conway v. Rimmer 1968 AC 910 for according protection against disclosure of documents belonging to this case: “To my mind”, said the learned Law Lord : “the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.” But this reason does not commend itself to us.

The object of granting immunity to documents of this kind is to ensure the proper working of the government and not to protect the ministers and other government servants from criticism however intemperate and unfairly based. Moreover, this reason can have little validity in a democratic society which believes in an open government. It is only through exposure of its functioning that a democratic government can hope to win the trust of the people. If full information is made available to the people and every action of the government is bona fide and actuated only by public interest, there need be no fear of “ill-informed or captious public or political criticism”.

But at the same time it must be conceded that even in a democracy, government at a high level cannot function without some degree of secrecy. No minister or senior public servant can effectively discharge the responsibility of his office if every document prepared to enable policies to be formulated was liable to be made public. It is therefore in the interest of the State and necessary for the proper functioning of the public service that some protection be afforded by law to documents belonging to this class. What is the measure of this protection is a matter which we shall immediately proceed to discuss?” The role of the Court has been set out in para 73:-

“73. We have already pointed out that whenever an objection to the disclosure of a document under Section 123 is raised, two questions fall for the determination of the court, namely, whether the document relates to affairs of State and whether its disclosure would, in the particular case before the court, be injurious to public interest. The court in reaching its decision on these two questions has to balance two competing aspects of public interest, because the document being one relating to affairs of State, its disclosure would cause some injury to the interest of the State or the proper functioning of the public service and on the other hand if it is not disclosed, the non-disclosure would thwart the administration of justice by keeping back from the court a material document.

There are two aspects of public interest clashing with each other out of which the court has to decide which predominates. The approach to this problem is admirably set out in a passage from the judgment of Lord Reid in Conway v. Rimmer 1968 AC 910: It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.

There are many cases where the nature of the injury which would of might be done to the nation, or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question, would put the interest of the State in jeopardy. But there are many other cases where the possible injury to the public service is much less and there one would think that it would he proper to balance the public interests involved. The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which would result from non- disclosure of the document though relevant to the proceeding. [Vide the observations of Lord Pearson in Reg, v. Lewes JJ. Ex parte Home Secy 1973 AC 388 at page 406 of the report].

The court has to decide which aspect of the public interest predominates or in other words, whether the public interest which requires that the document should not be produced, outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies.

If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure, the court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class………………….”

(emphasis supplied)

13. I notice that the claim for privilege may arise in the following situations. The claim for privilege may arise in a system of law where there is no statutory framework provided for such a claim. It has been considered to be the position in the United 14 Kingdom. In India as already noticed, Section 123 of the Evidence Act read with Section 124 and Section 162 does provide for the statutory basis for a claim of public interest privilege. The next aspect relating to the law of compelled production of documents is the constitutional embargo contained in Article 74(2) of the Constitution. Article 74(2) reads as follows: “74(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

Therefore, it would be impermissible for a court to inquire into the advice which is tendered by the cabinet. The objection in this case raised under the Right to Information Act, is based only on Section 8(1)(a). I notice Section 8(1)(i) which provides as follows:-

“8(1)(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;”. The said provision having not been pressed into service, neither its scope nor the ramification of Article 74(2) need be pursued further in this case.

14. It is at once apposite to notice the change that was introduced by the Right to Information Act, 2005. Section 2(i) defines ‘record’ in the following fashion:

“2 (i) “record” includes-

(i) any document, manuscript and file;

(ii) any microfilm, microfiche and facsimile copy of a document;

(iii) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (iv) any other material produced by a computer or any other device;” The word ‘right to information’ defined in Section 2(j) as follows:

“(j) “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-

(i) inspection of work, documents, records;

(ii) taking notes, extracts, or certified copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;” All citizens are conferred with the right to information subject to the provisions of the Act under Section 3.

15. Section 8 deals with exemption from disclosure of information. Section 8(1)(a) which is pressed before us reads as follows:

“8. Exemption from disclosure of information –

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;”

This is followed by Section 8(2).

It reads as follows:

“8(2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”

16. Before I delve more into Section (8) it is apposite that I also notice Section 22 which provides as follows:

“22. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

17. I may lastly notice Section 24. “24(1). Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub -section:

Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.”

18. Sections 22 and 24 bring up the rear. I may highlight their significance in the new dispensation which has been ushered in by Parliament. In no unambiguous terms Parliament has declared that the Official Secrets Act, a law made in the year 1923 and for that matter any other law for the time being in force inter alia notwithstanding the provisions of the RTI Act will hold the field. The first proviso to Section 24 indeed marks a paradigm shift, in the perspective of the body polity through its elected representatives that corruption and human rights violations are completely incompatible and hence anathema to the very basic principles of democracy, the rule of law and constitutional morality.

The proviso declares that even though information available with intelligence and security organisations are generally outside the purview of the open disclosure regime contemplated under the Act, if the information pertains to allegations of corruption or human rights violations such information is very much available to be sought for under the Act. The economic development of a country is closely interconnected with the attainment of highest levels of probity in public life. In some of the poorest countries in the world, poverty is rightfully intricately associated with corruption. In fact, human rights violations are very often the offsprings of corruption. However, the law giver has indeed dealt with corruption and human rights separately. Hence I say no more on this.

19. Reverting back to Section (8) it is clear that Parliament has indeed intended to strengthen democracy and has sought to introduce the highest levels of transparency and openness. With the passing of the Right to Information Act, the citizens fundamental right of expression under Article 19(1) (a) of the Constitution of India, which itself has been recognised as encompassing, a basket of rights has been given fruitful meaning. Section 8(2) of the Act manifests a legal revolution that has been introduced in that, none of the exemptions declared under sub-section(1) of Section 8 or the Official Secrets Act, 1923 can stand in the way of the access to information if the public interest in disclosure overshadows, the harm to the protected interests.

20. It is true that under Section 8(1)(a), information the disclosure of which will prejudicially affect the sovereignty and integrity of India, the security and strategic security and strategic scientific or economic interests of the State, relation with foreign State or information leading to incitement of an offence are ordinarily exempt from the obligation of disclosure but even in respect of such matters Parliament has advanced the law in a manner which can only be described as dramatic by giving recognition to the principle that disclosure of information could be refused only on the foundation of public interest being jeopardised. What interestingly Section 8(2) recognises is that there cannot be absolutism even in the matter of certain values which were formerly considered to provide unquestionable foundations for the power to withhold information. Most significantly, Parliament has appreciated that it may be necessary to pit one interest against another and to compare the relative harm and then decide either to disclose or to decline information. It is not as if there would be no harm.

If, for instance, the information falling under clause (a) say for instance the security of the nations or relationship with a foreign state is revealed and is likely to be harmful, under the Act if higher public interest is established, then it is the will of Parliament that the greater good should prevail though at the cost of lesser harm being still occasioned. I indeed would be failing to recognise the radical departure in the law which has been articulated in Section 8(2) if I did not also contrast the law which in fact been laid down by this court in the decisions of this Court which I have adverted to. Under the law relating to privilege there are two classes of documents which ordinarily form the basis of privilege. In the first category, the claim for privilege is raised on the basis of contents of the particular documents.

The second head under which privilege is ordinarily claimed is that the document is a document which falls in a class of documents which entitles it to protection from disclosure and production. When a document falls in such a class, ordinarily courts are told that it suffices and the court may not consider the contents. When privilege was claimed as for instance in the matter relating to security of the nation, traditionally, courts both in England and in India have held that such documents would fall in the class of documents which entitles it to protection from production. (See paragraph ‘9’ of this order). The RTI Act through Section 8(2) has conferred upon the citizens a priceless right by clothing them with the right to demand information even in respect of such matters as security of the country and matters relating to relation with foreign state. No doubt, information is not be given for the mere asking. The applicant must establish that withholding of such information produces greater harm than disclosing it.

21. It may be necessary also to consider as to what could be the premise for disclosure in a matter relating to security and relationship with foreign state. The answer is contained in Section 8(2) and that is public interest. Right to justice is 23 immutable. It is inalienable. The demands it has made over other interests has been so overwhelming that it forms the foundation of all civilised nations. The evolution of law itself is founded upon the recognition of right to justice as an indispensable hallmark of a fully evolved nation.

22. The preamble to the constitution proclaims justice -social, economic or political, as the goal to be achieved. It is the duty of every State to provide for a fair and effective system of administration of justice. Judicial review is, in fact, recognised as a basic feature of the Constitution. Section 24 of the Act also highlights the importance attached to the unrelenting crusade against corruption and violation of human rights. The most important aspect in a justice delivery system is the ability of a party to successfully establish the case based on materials. Subject to exceptions it is settled beyond doubt that any person can set the criminal law into motion. It is equally indisputable however that among the seemingly insuperable obstacles a litigant faces are the limitations on the ability to prove the case with evidence and more importantly relevant evidence.

Ability to secure evidence thus forms the most important aspect in ensuring the triumph of truth and justice. It is imperative therefore that Section 8(2) must be viewed in the said context. Its impact on the operation on the shield of privilege is unmistakable.

23. It is clear that under the Right to Information Act, a citizen can get a certified copy of a document under Section 8(2) of the RTI Act even if the matter pertains to security or relationship with a foreign nation, if a case is made out thereunder. If such a document is produced surely a claim for privilege could not lie.

24. Coming to privilege it may be true that Section 123 of the Evidence Act stands unamended. It is equally true that there is no unqualified right to obtain information in respect of matters under Section 8(1)(a) of the RTI Act. However, the Court cannot be wholly unaffected by the new regime introduced by Parliament under the RTI Act on the 25 question regarding a claim for privilege. It is pertinent to note that an officer of the department is permitted under the RTI Act to allow access to information under the Act in respect of matters falling even under Section 8(1)(a) if a case is made out under Section 8(2). If an officer does not accede to the request, a citizen can pursue remedies before higher authorities and finally the courts. Could it be said that what an officer under the RTI Act can permit, cannot be allowed by a court and that too superior courts under Section 123 of the Evidence Act. I would think that the court indeed can subject no doubt to one exception, namely, if it is a matter which is tabooed under Article 74(2) of the Constitution.

25. In this case in fact, the documents in respect of which the privilege is claimed are already on record. Section 123 of the Evidence Act in fact contemplates a situation where party seeks the production of document which is with a public authority and the public authority raises claim for privilege by contending that the document cannot be produced by it. Undoubtedly, the foundation for such a claim is based on public interest and nothing more and nothing less. In fact, in State of U.P. VS. Raj Narain AIR 1975 SC 861 I notice the following paragraph about the effect of publication in part in the concurring judgment of K.K. Mathew,J. which reads as under:

“81. I do not think that there is much substance in the contention that since, the Blue Book had been published in parts, it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state. If some parts of the document which are innocuous have been published, it does not follow that the whole document has been published. No authority has been cited for the proposition that if a severable and innocuous portion of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123.”

26. I may also notice another aspect. Under the common law both in England and in India the context for material being considered by the court is relevancy. There can be no dispute that the manner in which evidence is got namely that it was procured in an illegal manner would not ordinarily be very significant in itself in regard to the courts decision to act upon the same (see in this context judgment of this Court in Pooran Mal v. Director of Inspection (Investigation) of Income Tax AIR 1974 SC 348). Therein I notice the following statements:

“25. So far as India is concerned its law of evidence is modeled on the rules of evidence, which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In Barindra Kumar Ghose and others v. Emperor (1910)ILR 37 Cal 467 the learned Chief Justice Sir Lawrence Jenkins says at page, 500 : “Mr. Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede.

For without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As Jimutavahana with his shrewd common-sense observes-“a fact cannot be altered by 100 texts,” and as his commentator quaintly remarks : “If a Brahmana be slain, the precept ‘slay not a Brahmana’ does not annul the murder.” But the absence of the precautions designed. by the legislature lends support to the argument that the alleged discovery should be carefully scrutinized.

……. …… ……. It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.”

(Emphasis supplied)

27. Now in the context of a claim of privilege raised under Section 123 however, the evidence being requisitioned by a party against the state or public authority it may happen however that a party may obtain a copy of the document in an improper manner. A question may arise as to whether the copy is true copy of the original. If a copy is wholly improperly obtained and an attempt is made by production thereof to compel the State to produce the original, a question may and has in fact arisen whether the Court is bound to order production. In the landmark judgment by the High court of Australia in Sankey v. Whitlam (1978) 142 CLR 1, informations were laid against Mr. Whitlam the former Prime Minister of Australia and three members of his Ministry alleging offence under Section 86 of the Crimes Act 1914 and a conspiracy at common law. The case also threw up the scope of the claim for privilege. It was held inter alia as follows in the judgment rendered by Sir Harry Gibbs, A.C.J.:

“43. If state papers were absolutely protected from production, great injustice would be caused in cases in which the documents were necessary to support the defence of an accused person whose liberty was at stake in a criminal trial, and it seems to be accepted that in those circumstances the documents must be disclosed: Duncan v. Cammell, Laird & Co. [1942] UKHL 3; (1942) AC 624, at pp 633-634 ; Conway v. Rimmer (1968) AC, at pp 966-967, 987 ; Reg. v. Lewes Justices; Ex parte Home Secretary (1973) AC, at pp 407- 408. Moreover, a Minister might produce a document of his own accord if it were necessary to do so to support a criminal prosecution launched on behalf of the government. The fact that state papers may come to light in some circumstances is impossible to reconcile with the view that they enjoy absolute protection from disclosure.

48. In Robinson v. South Australia (No. 2) (1931) AC, at p 718 , it was said that “the privilege, the reason for it being what it is, can hardly be asserted in relation to documents the contents of which have already been published”. Other cases support that view: see Marconi’s Wireless Telegraph Co. Ltd. v. The Commonwealth (No. 2) (1913) 16 CLR, at pp 188, 195, 199 ; Christie v. Ford (1957) 2 FLR 202, at p 209 . However the submission made by counsel 30 for Mr. Whitlam was that the position is different when the exclusion of a document is sought not because of its contents but because of the class to which it belongs. In such a case the document is withheld irrespective of its contents; therefore, it was said, it is immaterial that the contents are known.

That is not so; for the reasons I have suggested, it may be necessary for the proper functioning of the public service to keep secret a document of a particular class, but once the document has been published to the world there no longer exists any reason to deny to the court access to that document, if it provides evidence that is relevant and otherwise admissible. It was further submitted that if one document forming part of a series of cabinet papers has been published, but others have not, it would be unfair and unjust to produce one document and withhold the rest. That may indeed be so, and where one such document has been published it becomes necessary for the court to consider whether that circumstance strengthens the case for the disclosure of the connected documents. However even if other related documents should not be produced, it seems to me that once a document has been published it becomes impossible, and indeed absurd, to say that the public interest requires that it should not be produced or given in evidence.”

28. No doubt regarding publication by an unauthorised person and it being unauthenticated, the learned Judge had this to say:

“49. What I have just said applies to cases where it is established that a true copy of the document sought to be produced has in fact been published. The publication by an unauthorized person of something claimed to be a copy of an official document, but unauthenticated and not proved to be correct, would not in itself lend any support to a claim that the document in question ought to be produced. In such a case it would remain uncertain whether the contents of the document had in truth been disclosed. In some cases the court might resolve the problem by looking at the document for the purpose of seeing whether the published copy was a true one, but it would not take that course if the alleged publication was simply a device to assist in procuring disclosure, and it might be reluctant to do so if the copy had been stolen or improperly obtained.”

29. In the same case in the judgment rendered by Stephen. J., the learned Judge observes: –

“26. The character of the proceedings has a triple significance. First, it makes it very likely that, for the prosecution to be successful, its evidence must include documents of a class hitherto regarded as undoubtedly the subject of Crown privilege. But, then, to accord privilege to such documents as a matter of course is to come close to conferring immunity from conviction upon those who may occupy or may have occupied high offices of State if proceeded against in relation to their conduct in those offices.

Those in whom resides the power ultimately to decide whether or not to claim privilege will in fact be exercising a far more potent power: by a decision to claim privilege dismissal of the charge will be well-nigh ensured. Secondly, and assuming for the moment that there should prove to be any substance in the present charges, their character must raise doubts about the reasons customarily given as justifying a claim to Crown privilege for classes of documents, being the reasons in fact relied upon in this case.

Those reasons, the need to safeguard the proper functioning of the executive arm of government and of the public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which assists it. Thirdly, the high offices which were occupied by those charged and the nature of the conspiracies sought to be attributed to them in those offices must make it a matter of more than usual public interest that in the disposition of the charges the course of justice be in no way unnecessarily impeded.

For such charges to have remained pending and unresolved for as long as they have is bad enough; if they are now to be met with a claim to Crown privilege, invoked for the protection of the proper functioning of the executive government, some high degree of public interest in non-disclosure should be shown before his privilege should be accorded. “

“31. What are now equally well established are the respective roles of the court and of those, usually the Crown, who assert Crown privilege. A claim to Crown privilege has no automatic operation; it always remains the function of the court to determine upon that claim. The claim, supported by whatever material may be thought appropriate to the occasion, does no more than draw to the court’s attention what is said to be the entitlement to the privilege and provide the court with material which may assist it in determining whether or not Crown privilege should be accorded. A claim to the privilege is not essential to the invoking of Crown privilege. In cases of defence secrets, matters of diplomacy or affairs of government at the highest level, it will often appear readily enough that the balance of public interest is against disclosure.

It is in these areas that, even in the absence of any claim to Crown privilege (perhaps because the Crown is not a party and may be unaware of what is afoot), a court, readily recognizing the proffered evidence for what it is, can, as many authorities establish, of its own motion enjoin its disclosure in court. Just as a claim is not essential, neither is it ever conclusive, although, in the areas which I have instanced, the court’s acceptance of the claim may often be no more than a matter of form. It is not conclusive because the function of the court, once it becomes aware of the existence of material to which Crown privilege may apply, is always to determine what shall be done in the light of how best the public interest may be served, how least it will be injured. “

“38 . Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden. As Lord Reid said in Rogers v. Home Secretary (1973) AC, at p 400 the speeches in Conway v. Rimmer[1968] UKHL 2; (1968) AC 910 have made it clear “that there is a heavy burden of proof” on those who make class claims. Sometimes class claims are supported by reference to the need to encourage candour on the part of public servants in their advice to Ministers, the immunity from subsequent disclosure which privilege affords being said to promote such candour. The affidavits in this case make reference to this aspect. Recent authorities have disposed of this ground as a tenable basis for privilege.

Lord Radcliffe in the Glasgow Corporation Case remarked 1956 SC (HL), at p 20 that he would have supposed Crown servants to be “made of sterner stuff”, a view shared by Harman L.J. in the Grosvenor Hotel Case (1965) Ch, at p 1255 : then, in Conway v. Rimmer (1968) AC 901 , Lord Reid dismissed the “candour” argument but found the true basis for the public interest in secrecy, in the case of cabinet minutes and the like, to lie in the fact that were they to 34 be disclosed this would “create or fan illinformed or captious public or political criticism. . . . the inner workings of the government machine being exposed to the gaze of those ready to criticize without adequate knowledge of the background and perhaps with some axe to grind” (1968) AC, at p 952 and see as to the ground of “candour” per Lord Morris (1968) AC, at p 959 , Lord Pearce (1968) AC, at pp 987-988 and Lord Upjohn (1968) AC, at pp 933-934 . In Rogers v. Home Secretary (1973) AC, at p 413 Lord Salmon spoke of the “candour” argument as “the old fallacy”.

“41. There is, moreover, a further factor pointing in the same direction. The public interest in non-disclosure will be much reduced in weight if the document or information in question has already been published to the world at large. There is much authority to this effect, going back at least as far as Robinson v. South Australia (No. 2) (1931) AC 704, at p 718 per Lord Blanesburgh. In 1949 Kriewaldt J., sitting in the Supreme Court of the Northern Territory, had occasion to review the relevant authorities in his judgment in Christie v. Ford (1957) 2 FLR 202, at p 209 . The reason of the thing necessarily tends to deny privilege to information which is already public knowledge. As Lord Blanesburgh observed (25) “the privilege, the reason for it being what it is, can hardly be asserted in relation to documents the contents of which have already been published”.

In Whitehall v. Whitehall 1957 SC 30, at p 38 the Lord President (Clyde) in referring to a document already the subject of some quite limited prior publicity observed that “The necessity for secrecy, which is the primary purpose of the certificate, then no longer operates…”

“44. In Rogers v. Home Secretary Lord Reid had occasion to distinguish between documents lawfully published and those which, as a result of “some wrongful means”, have become public (1973) AC, at p 402 . That case was, however, concerned with a quite special class of document, confidential reports on applicants for 35 licences to run gaming establishments, a class to which must apply considerations very similar to those which affect the reports of, or information about, police informers. There is, in those cases, the clearest public interest in preserving the flow of information by ensuring confidentiality and by not countenancing in any way breach of promised confidentiality. Those quite special considerations do not, I think, apply in the present case.”

(Emphasis Supplied)

30. In Rogers Vs. Home Secretary 1973 A.C. 388, the request to produce a letter written by the Police Officer to the Gaming Board by way of response to the Gaming Board request for information in regard to applications by the appellant for certificates of consent, was not countenanced by the House of Lords. The appellant had commenced an action for criminal libel in regard to the information. Lord Reid in the course of his judgment held:- “In my judgment on balance the public interest clearly requires that documents of this kind should not be disclosed, and that public interest is not affected by the fact that by some wrongful means a copy of such a document has been obtained and published by some person. I would therefore dismiss the appellant’s appeal.”

31. In this case however as I have already noticed there are the following aspects. The documents in question have been published in ‘The Hindu’, a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned. Lastly, the case does not strictly involve in a sense the claim for privilege as the petitioners have not called upon the respondents to produce the original and as already noted the state does not take objection to the correctness of the contents of the documents.

The request of the respondents is to remove the documents from the record. I would observe that in regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest. In the writ petition out of which the review arises the complaint is that there has been grave wrong doing in the highest echelons of power and the petitioners seek action inter alia under the provisions of Prevention of Corruption Act. The observations made by Stephen,J. in para 26 of his judgment and extracted by me in para 29 of my order may not be out of place.

32. I agree with the order of the learned Chief Justice.

J. [K.M. JOSEPH]

NEW DELHI

APRIL 10, 2019

Expert witness rendering opinion evidence, DNA testing & Superimposition technique

Posted on by in EVIDENCE, Evidence Act 1872 and tagged .

The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors., (2009) 9 SCC 709:

“16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the layperson. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed…”

(emphasis supplied)

Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be 38 that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts. (See The State (Delhi Adminstration) v. Pali Ram, (1979) 2 SCC 158; State of H.P. v. Jai Lal & Ors., (1999) 7 SCC 280; Baso Prasad & Ors. v. State of Bihar, (2006) 13 SCC 65; Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. (supra); Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors., (2010) 2 SCC (Cri) 299).

Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the 39 presence of other cogent and reliable evidence on record in favour of such party.

This leads us to the question of the propriety of relying upon the superimposition test conducted in the instant case for identifying the deceased. As noted supra, the learned counsel for the appellants has argued that evidence pertaining to the use of the superimposition technique is not a tangible piece of evidence. We find ourselves unable to agree with this view. There cannot be any dispute that evidence on superimposition is also based on experts’ opinion. We would like to note that the use of the superimposition technique in Indian investigations for identification purposes is not a new phenomenon. Notably, it has been employed in the investigations pertaining to the Nithari murders, the Russian murder incident in Goa in 2008, and even before that in the Morni Hill murder case and the Paharganj bomb blast case as far back as in 1996, and the Udhampur murder case in 2005 (See Modi, A Textbook of Medical Jurisprudence and Toxicology, 26th edn., 2018, pp. 267271).

This Court itself has placed reliance on the identification of the deceased through superimposition on several occasions (see 40 Shankar & Ors. v. State of Tamil Nadu, (1994) 4 SCC 478; Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288; Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509; Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292), clearly indicating that it is an acceptable piece of opinion evidence.

 It is relevant to note that all of the decisions of this Court cited in the above paragraph were based on circumstantial evidence, involving aspects such as the last seen circumstance, motive, recovery of personal belongings of the deceased, and so on, and therefore in none of the cases was the superimposition technique the sole incriminating factor relied upon to reach a conclusion of guilt of the accused. Indeed, in Mahesh Dhanaji Shinde (supra), the Court also had the advantage of referring to a DNA test, and in John David (supra), of referring to a DNA test as well as a dental examination of the deceased, to determine the identity of the victim. This is in line with the settled practice of the Courts, which generally do not rely upon opinion evidence as the sole incriminating circumstance, given its fallibility. This is particularly true for the superimposition technique, which cannot be regarded as infallible.

The meaning of “discovery of fact”

Posted on by in EVIDENCE, Evidence Act 1872 and tagged .

The Supreme Court has explained the meaning of “discovery of fact” in consequence of information received from the accused laid down in Section 27 of the Evidence Act in paragraph 35 of “State of Maharashtra V. Damu” reported in (2000) 6 SCC 269, as follows:

“The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is
true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in “Pulukuri Kottaya V. Emperor” is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.”

It is also pertinent to point out from paragraph 42 of “Vikram Singh and Others V. State of Punjab” reported in (2010) 3 SCC 56 to the effect that the statement made by the person accused of any offence and in the custody of police is relevant under Section 27 of the Evidence Act, if the statement leads to discovery of facts and as such there is no need of formal arrest of the person for making his statement relevant under Section 27 of the Evidence Act. Mr. S. K. Mondal, Learned Senior Counsel appearing on behalf of the State has also relied on “State of Maharashtra V. Suresh” reported in (2000) 1 SCC 471 wherein it is laid down in paragraph 26 that there are three possibilities when an accused person points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. The first possibility is that he himself would have concealed it. The second possibility is that he would have seen somebody else concealing it. The third possibility is that he would have been told by another person that it was concealed there. If the accused person declines to tell the court that his knowledge about the concealment was on account of first two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the court
that the concealment was made by himself.

It is also laid down by the Supreme Court in paragraph 27 of State of Maharashtra V. Suresh (Supra) as follows:
“a false answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing “a missing link” for completion of the chain of circumstances.”

 In cases based upon circumstantial evidence, motive assumes greater importance

Posted on by in EVIDENCE, Evidence Act 1872 and tagged .

Regarding law on the circumstance of last seen, the observation of Supreme Court in Mohibur Rahman and Another Vs. State of Assam, are relevant:

The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place.

In the case of ‘ State of Goa Vs. Sanjay Thakran and Another, the Supreme Court noted general principles with reference to the principles of last seen together in Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, as under:

The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”

In Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.

34……Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.

Chance witness

Posted on by in EVIDENCE, Evidence Act 1872 and tagged .

On scrutiny of the below decisions, we find that the Hon’ble Apex Court has specifically observed that presence of witness was doubtful and no reliance can be placed on such chance witness.

(1) , AIR 1992 SC page 1433 (Rajinder Singh @ Kada v. State of Punjab),

(2) , AIR 1976 SC 2032 (Bahal Singh v. State of Haryana),

(3) , 2001(2) Crimes (SC) 49 (Sohan & Another v. State of Haryana),

(4) 1991(0) Supreme (SC) 1368, , AIR 1998 (SC) 275 (Raju Alias Rajendra v. State of Maharashtra,

(5) 2004(0) Supreme (Raj) 677 (Hirjinder Singh & Bhola v. State of Punjab,

(6) 2003(0) Supreme (Raj) p.109 (Ramswaroop and another v. State of Rajasthan),

(7) 1992(2) Crimes (HC) 755 (Rajendran and another v. State)

(8) 1996(1) Crimes (HC) 107 (Daulat Ram & Others v. State of Rajasthan).”

 

Rule under Section 101 of the Evidence Act -the burden to prove a fact

Posted on by in EVIDENCE, Evidence Act 1872 and tagged .

The elementary Rule under Section 101 of the Evidence Act, is inflexible. Ordinarily, the burden to prove the fact rests on the party who substantially asserts affirmative of the issue and not on the party who denies it. In terms of Section 102 of the Act, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the relief. In the case of Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 (para-19), Hon’ble Supreme Court held that a distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others.

 In the case of Rangmmal v. Kuppuswami and another, (2011) 12 SCC 220 (para-21), Hon’ble Supreme Court held that Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. In paragraph 29 of the judgment, Supreme Court further held that the party who alleged the sale deed to be not genuine, sham or bogus, had to prove nothing until the party relying upon the document, establishes its genuineness. In the present set of facts, the plaintiff respondent No.1 has neither proved the alleged two bank drafts nor its encashment by the defendant appellant and thus failed to discharge the burden to prove.

Apart from this, the evidences led by the plaintiff respondent No.1 and the defendant-appellant clearly shows that the plaintiff respondent No.1 has completely failed to establish that the alleged two bank drafts in question were got prepared by him and were given by him to the defendant-appellant towards cost of 1620 MT coal. In the case of Bala Shankar Mama Shankar Bhattji v. Charity Commissioner, Gujrat State, 1995 Suppl. (1) SCC 485 (para-19), Hon’ble Supreme Court held that burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. Either of the two contending parties has to introduce evidence on a contested issue. The question of onus is material only when the party on which it is placed, would eventually lose if he failed to discharge the same. Where, however, parties joined the issue and led evidence then such evidence can be weighed in order to determine the issue and in that situation, the question of burden becomes academic.

In Subhra Mukherjee v. Bharat Coling Coal Ltd., (2000) 3 SCC 312, Hon’ble Supreme Court held that the party that makes allegation, must prove it but where the question before the court was “whether the transaction in question was a bona fide and genuine one” the party relying upon the transaction has to prove its genuineness first and only thereafter would the defendant be required to dislodge such proof and prove that the transaction was sham and fictitious.

 In the case of Deena v. Union of India, 1983 (4) SCC 645, Hon’ble Supreme Court held that the question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each side having placed before it such material as it considers necessary to support its case. But then, the fact that parties have produced their respective data before the Court does not absolve the Court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged by the party on whom it lies.

The plaintiff-respondent No. 1 completely failed to lay any evidence to establish that he made payment to the defendant-appellant through the alleged two bank drafts. In the case of State of J. & K. v. Hindustan Forest Company, (2006) 12 SCC 198, Hon’ble Supreme Court held that the onus is on the plaintiff to establish positively its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus. In the case of Corporation of City of Bengalore v. Zulekha Bi, (2008) 11 SCC 306, it was held that it is for the plaintiff to prove his title to the property.