Rajeev Kumar -Vs CBI, SP, Economic Offences –IV, CGO Complex-CHC 01/10/2019

Calcutta High Court Grants Anticipatory Bail to IPS Rajeev Kumar

The status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

ACTS :Section 438 of the Code of Criminal Procedure

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Before :

The Hon’ble Justice SAHIDULLAH MUNSHI

And

The Hon’ble Justice SUBHASIS DASGUPTA

C.R.M. No. 9230 Of 2019

Rajeev Kumar -Versus CBI, SP, Economic Offences –IV, CGO Complex,

Mr. Sekhar Kumar Basu,

Mr. Debasis Roy,
Mr. Gopal Haldar,
Mr. Rudradipta Nandy,
Mr. Rajib Kumar Jha.

… for the petitioner.

Mr. Y. J. Dastur,

Mr. K.C. Mishra,
Mr. Anirban Mitra,
Mr. Samrat Goswami.
… for the CBI

Heard on :. 26.09.2019 & 30.09.2019

Judgment on : October 1 , 2019

Sahidullah Munshi, J.: This is an application under Section 438 of the Code of Criminal Procedure, filed by the petitioner apprehending arrest in connection with case no. R.C.- 04 (S) of 2014 under Section 120B read with Sections 420/406/409 of Indian Penal Code and Section 4 / 6 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978.

It is the petitioner’s case that he has never been entangled in any criminal offences, or has been rendered to be guilty of any misconduct, while he was serving as the Commissioner of Police, Bidhannagar City Police. At the relevant time, he was entrusted to look after the day to day functioning of the SIT, formed by the Government of West Bengal, Home Department, which was notified under Police Gazette on 26th April, 2013. The SIT was headed by the Director General and IGP, West Bengal, who were supposed to be assisted from time to time by the Additional Director General, CID, West Bengal. This petitioner had the role to look after day to day functioning of SIT as a member thereof.

In this application the petitioner has disclosed that although, he rendered his all cooperation during the tenure of his office from January, 2012 to February, 2015, as Commissioner of Bidhannagar Police Commissionerate, and consequently no allegation was made against him, but recently the investigating agency sought for examination of the petitioner for the progress of investigation.

Investigating Authority, has, however, complained repeatedly before this Court in different proceedings including the proceeding of contempt, now pending before the Hon’ble Apex Court, that the petitioner is not cooperating with the investigation process.

The background, which we get of this case arises from one writ petition, being no. W.P. (C) 413 of 2013, which was filed before the Hon’ble Supreme Court with other writ petitions and the Hon’ble Apex Court by a judgment and order dated 9th May, 2014 directed transfer of the investigation from the State Agency to the Central Bureau of Investigation (CBI) under Delhi Police Establishment Act, after having considered the magnitude of the offence, interstate ramification, plight of investors, and the need for swift and efficient investigation.

The application for anticipatory bail discloses that the petitioner all throughout was under protective order of the Hon’ble Apex Court, but because of intervention of certain untoward incident, occurred on 3rd February, 2019, against which the contempt petition was moved by the CBI before the Hon’ble Apex Court, the protective cover was sought to be withdrawn on the prayer of CBI. The protective cover granted on 05.02.2019 was withdrawn by the Apex Court on 17.05.2019. While passing this order the Hon’ble Apex Court observed as follows:

“Therefore, in the given facts, we would withdraw the protection given to Mr. Mr. Rajeev Kumar, former Commissioner of Police, Kolkata, vide our order dated

February 05, 2019 restraining the CBI from arresting him and thereby, leave it open to the CBI to act in accordance with the law. At the same time, we direct that the interim order dated February 05, 2019 would continue for a period of seven days from the date of pronouncement of this order to enable Mr. Rajeev Kumar to approach competent Court for relief, if so advised. The aforesaid directions would be in consonance with the decision in A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602, which mandates that the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person. We clarify that we have not made any comments on the merits of the contentions and the reasons recorded in the present order would not be a ground to accept or reject the request of custodial interrogation or grant of protection, if any such application/petition is moved.”

We have been given to understand by the parties before us that the said Contempt petition is still pending before the Hon’ble Apex Court. There was a controversy regarding the power and function between the State Police and the CBI. The conflict regarding calling upon the State Police Officials to CBI and the CBI Officials to State assumed a critical dimension. When by order dated 05.02.2019 the Apex Court observed “However, we make it clear that no coercive steps including arrest shall be taken against the Commissioner of Police. To avoid all unnecessary controversy we direct the Commissioner of police

to appear before the Investigating agency in Shillong, Meghalaya on such date as may be fixed.”

The controversy regarding non-cooperation continued even after the petitioner subjected himself for questioning session in Shillong, which continued from 09.02.2019 to 13.02.2019 consuming a period of 40 hours (approx).

It may not be out of place to mention that the Hon’ble Apex Court also passed an order on 16th July, 2018 regarding certain things, which are important to be taken note of while considering this application of the petitioner under Section 438 of the Code of Criminal Procedure. “It is not happy state of affairs that CBI Officers should be called by the State Police; they have to work in tandem with each other is the exception of the Court as per investigation of the Criminal Case is required; however, in the main case since this Court had confined itself to the investigation to be made by the CBI, there are certain other matters with respect to investigation which equipments like laptop, mobile phones etc. are required for this Court to go into. It is not the object of this Court to adjudicate upon such issues on the first instance. Since the investigation is pending it would be open for the CBI, in case any obstructions is faced by its officers, similarly, in case the State machinery had no objection, they are free to approach the High Court at Calcutta.

It was submitted that under the guise of an order of 23rd October

2017 the State Police had asked for certain details from the CBI in case

CBI agreed by the said order we are gave liberty by filing appropriate petition in accordance with law within a period of six weeks in the High Court.”

In consonance of this direction, nothing is brought to our notice that the liberty granted to either of the parties was ever exercised having understood the purport of the order conveyed therein. After the interrogation in Shillong, spanning over a period of 40 hours, this petitioner in compliance of the order passed by the Hon’ble Apex Court, offered himself to be interrogated further by the CBI on 17.06.2019 in connection with this case in Calcutta, which, however, continued covering another session of four hours (approx).

Mr. Dastur, appearing for the opposite party, CBI, has pointed out before this Court by filing certain documents in compilation, being the relevant extract from the Case Diary together with an index in front containing 9 serials with pages from 1 to 138, adverting to seizure list dated 17th April, 2013, on the apparent time discrepancies, shown in the seizure and that of the relevant G.D. Entry of the P.S. recorded for the purpose. Referring to this anomaly in the Case Diary and the seizure list, Mr. Dastur further submits that this is a serious contradiction amongst others, for which petitioner’s role is to be found out by custodial interrogation confronting with the materials already collected, irrespective of the repeated questioning sessions, held earlier.

We, however, do not justify custodial interrogation merely on this score as submitted by Mr. Dastur in the absence of some other convincing materials. According to our considered view, such discrepancy could be appropriately decided at the time of trial.

The prime allegation against the petitioner, as submitted by Mr. Dastur learned Senior Advocate appearing for the CBI is that the petitioner deliberately showed his non-cooperation with the ongoing investigation, questioning the notice since beginning, alleging biasness in the investigation, wrongly interpreting the text of the notice, thereby exposed his arrogancy, obstinancy and defying attitude to obey the terms of the notice, upon advancing frivolous excuses on innumerable counts, and further deliberately tampered and doctorred the CDRs with a delay of about four years, after it was requisitioned, with sole intention of destroying and damaging the material evidence, extending his hands in glove with some other men of potentiality including political dignitaries, so as to give a go by to the allegations levelled against him, and to gloss over some other designed personalities. He has also pointed out to the notices served upon the petitioner and his attitude to evade those notices by taking shelter under the law. It may not be out of place to mention that after such notices under Section 160 of the Code of Criminal Procedure was served upon the petitioner by the investigating agency to examine him, he filed an application under Section 482 of the Code of Criminal Procedure being CRR no. 1308 of 2009, in which the petitioner challenged the proceeding itself and prayed for quashing of the same.

The said CRR 1308 of 2019 was, ultimately, held to be not maintainable at the instance of a third party meaning thereby, the petitioner had no locus standi to pray for quashing of instant criminal proceeding, when apparently a notice under Section 160 of Cr.P.C. was served upon the petitioner calling upon his co-operation to unearth the prosecution.

Mr. Roy, appearing for the petitioner submits that, however, the petitioner was not appropriately advised and wrong forum was chosen by him. Protection which was granted initially in CRR 1308 of 2019 passed by the Single Bench of our High Court, ultimately, stood vacated by the final decision, given on 13th September, 2019.

It is the contention of Mr. Dastur, that after the said CRR was finally disposed of and having lost the protective cover, the petitioner even did not appear before the investigating agency, pursuant to the notice being served afresh upon him requiring his presence on subsequent dates, as mentioned in the notices, found in the compilation, placed before us by the CBI for consideration.

Mr. Roy, however, attempted to justify that the petitioner was on leave till 25th September, 2019 with due intimation to CBI and the instant application for anticipatory bail was taken up for hearing on urgent basis on 26th September, 2019.

Mr. Dastur, further submits that if this application under Section 438 is allowed giving the petitioner protection against

custodial interrogation the investigation which reached certain stage would be grossly hampered.

Mr. Roy in support of his submission has placed reliance on two decisions:

• Siddharam Satlingappa Mhetre –Vs. – State of Maharashtra reported in (2011) 1 SCC 694 &

• Santosh s/o Dwarkadas Fafat –Vs. – State of Maharashtra reported in (2017) 9 SCC 714.

Mr. Dastur appearing for the CBI has relied on three decisions:

• State represented by the CBI –Vs. – Anil Sharma reported in (1997) 7 SCC 187;

• Sudhir –Vs. – State of Maharashtra & Anr. reported in

(2016) 1 SCC 146 &

P. Chidambaram –Vs. – Directorate of Enforcement Published in 2019 SCC online SC 1143

In order to correctly assess the prayer for pre-arrest bail, and the ratio decided by the Hon’ble Apex Court, we deem it appropriate to first consider the decision, which have been relied on by Mr. Dastur.

The first decision delivered in State represented by CBI (supra), relied on by Mr. Dastur, is on the issue of custodial interrogation for eliciting more useful information and material from the interrogatee. Mr. Dastur has drawn our attention to paragraphs 4, 6 and 7. This decision is, however, distinguishable not only from the facts, but also conspicuously differentiable from the judgment, delivered by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre (supra), which basically concerned the personal liberty of a person available under Article 21 of the Constitution of India in context with the decision of the Apex Court, delivered in the case of Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565. In the case referred above by Mr. Dastur there was allegation levelled by CBI that the respondent amassed wealth far in excess of his known sources of income rendering him to be subjected to a prosecution under Section 13(2) of the Prevention and Corruption Act, 1988. The court at the first instance granted pre-arrest bail, which was cancelled by the concerned High Court and cancellation was however, affirmed by the Hon’ble Apex Court observing therein that the respondent having held a high office, the chance of exercising his influence would create a great handicap to the investigating agency, while interrogating a person, already armed with an order of anticipatory bail, because the custodial interrogation being qualititably more elicitation oriented and that questioning a suspect who is well protected with a favourable order under Section 438 of the Code would render the questioning a mere ritual. The petitioner herein involved in this case not only once, but in all twice subjected himself for questioning purpose covering a period of 44 hours (approx) meaning thereby he had consciously offered himself to be interrogated in the interest of ongoing investigation.

The next decision relied on by Mr. Dastur in Sudhir (supra) relates to case where allegations are of serious nature including corruption and mis-appropriation of public fund requiring custodial interrogation. The appeal before the Hon’ble Apex Court was against the order of cancellation of bail granted by the High Court. The case is distinguishable on fact, that in the cited decision the two First Information Reports were registered against the accused/appellants against themselves with serious allegations of criminal mis-appropriation of funds, released for implementation of scheme of drinking water in the villages, in the context with which, the Apex Court felt the necessity of custodial interrogation for the conduct of the appellants causing the investigation to hold up for sometimes, and upon consideration of such conduct, the anticipatory bail was cancelled observing therein that the investigation could not be proceeded in the event of the appellants being armed with an anticipatory bail. The gist of the materials being extract of the case diary, placed before us in the form of compilation, as mentioned hereinabove, do not conspicuously transpire anything that at the instance of the petitioner the investigation got halted for his active contribution, because investigation has extensively dealt with to reveal the scam examining several persons not only from the police but also from the side of the State.

In context of that fact, the Hon’ble Apex Court considering the ratio of the decision in Gurbaksh Singh Sibbia (supra) has held that the relief of anticipatory bail cannot be said to be barred merely for

the reasons that the allegations relate to economic offences or corruption and clarified that where the allegations are mala fide, prayer for anticipatory bail can be accepted.

Considering the ratio of Siddharam Satlingappa Mhetre (supra) the Hon’ble Apex Court discussed in paragraph 112 thereof, which stated “While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.”

In the case of P. Chidambaram (supra), unlike the case in hand, there is no allegation of money laundering proceeds of the crime as against the present petitioner seeking pre-arrest bail. The significant aspect to be kept in mind is that petitioner has come before the Court with a prayer for anticipatory bail even after subjecting himself for interrogation/ questioning not only once in Shillong, but also here in Kolkata to facilitate investigation. It is thus, not the position that petitioner purposefully kept himself concealed avoiding the desired questioning by CBI. This case is also distinguishable against the petitioner, who was subjected to repeated interrogation, as pointed out earlier, alleging to have made concealment of the materials, yet to be collected. The purpose of custodial interrogation being to elicit materials which may lead to recovery of relevant information, in our considered perception, needs to be critically appreciated in context with the peculiarity of the circumstances involved in this case, wherein petitioner offered himself for interrogation on repeated occasions, when investigating agency was left with sufficient opportunity to collect and/or derive relevant information in the interest of unearthing the prosecution.

We have considered the submissions of Mr. Roy and the principles laid down in the decisions on which he placed reliance. The case of Siddharam Satlingappa Mhetre (supra) has been cited by Mr. Roy, to enlighten the Court for the consideration of the parameters, laid down by the Supreme Court. In the said decision, the Hon’ble Apex Court observed that in the earlier Constitution Bench decision in Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565 it was held that a person seeking anticipatory bail is still free man, entitled to the presumption of innocence, and the person seeking anticipatory bail, submit himself to the restraint and conditions on his freedom, by accepting the conditions which the Court may deem fit to impose any consideration of the assurance that if he is arrested, he shall be enlarged on bail. We also find that the Hon’ble Apex Court observed that the appropriate course of action ought to be that after evaluating averments and accusation available on record, if the Court is inclined to grant anticipatory bail then an interim bail, can be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the Court may either reject the bail application, or confirm initial order of granting bail. The Court would certainly be entitled to impose conditions for grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modifying the conditions of bail any time, if liberty granted by the Court is misused.

Therefore, the bail granted by the Court should ordinarily continue till trial of the case. The provisions of Section 438 of the Code of Criminal Procedure is not an unfettered power granted in favour of the accused rather the same is very restricted and subject to reasonable restrictions.

Section 438 Cr.P.C. itself supplied the conditions which the Court can impose at the time of granting bail to the petitioner. Even the Court can impose such other condition, if it thinks fit and proper. Considering the application for anticipatory bail the appropriate Court while dealing with a regular application for anticipatory bail should come to an independent conclusion whether under the facts and circumstances and the available materials, the prayer for anticipatory bail should be allowed or not.

In the aforesaid decision of Siddharam Satlingappa Mhetre (supra) the principles and parameters have been laid down in paragraphs 109 and112 respectively and the same are set out below:

“Para 109: A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia’s case was correctly understood, appreciated and applied. This Court in the Sibbia’s case laid down the following principles with regard to anticipatory bail:

a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in section 437 cannot be read into section 438.

e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in the light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

Para 112: The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused’s likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

In paragraph 113, however, the Supreme Court more specifically stated that “arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

The ratio of the decision arising out of Siddaram Mahtre (supra), being basically founded upon Gurbaksh Singh Sibbia (supra), the same was reinforced in the case of Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr, reported in (2016) 1 SCC 152 which has, however, not been cited by either of the parties fighting over the issue before us.

When the apex Court granted protection to the petitioner, by an order dated 05.02.2019 prohibiting CBI from arresting the petitioner, the interrogation/investigation in respect of CDRs with insufficient particulars being sent on 28.06.2018, is expected to have been directed towards securing explanation from the petitioner as regards the alleged delay caused in sending the CDRs together with the alleged suppression, and also for causing disappearance of material evidence in connivance with some designed persons. No new material was, however, sent to CBI at the instance of the petitioner subsequent to 28.06.2018 creating a confusion, or a further mismatch with the materials pertaining to the CDRs already sent. For the alleged discrepancies in the CDRs, the CBI had already collected the relevant information from the service providers, applicable to the case and compared the same with that of the CDRs with insufficient particulars. In paragraph 7 of the additional affidavit, dated 18th February, 2019, filed on behalf of the CBI in connection with the contempt petition pending before the Apex Court, the CBI had specifically contended that the CDRs of the accused, when analysed by the CBI were found to be tampered/doctorred and the material evidence had been destroyed. It was also contended therein that comparison of the doctorred/tampered CDRs, given by petitioner and the CDRs obtained by the CBI from the service providers left no manner of doubt that the CDRs handed over by the petitioner on 28.06.2018 were tampered and doctored. That being the position, relying upon such assertion of the CBI, made in paragraph 7 of such affidavit, referred above, the scope of requirement of any extensive investigation taking the petitioner into custody has been minimised. As has been brought to our attention by the learned advocate for the CBI that the petitioner always attempted to obfuscate the investigation revealing his strong sense of avoidance to the notices and in doing so, the order dated 06.12.2018 and 18.12.2018 passed in CRR 2456 of 2018 has been wrongly interpreted upon misconstruction of such orders in as much as such orders had no reasonable nexus with the instant case. Rightly attention of the Court has been drawn by the learned Senior Advocate for the CBI to the communication issued to petitioner on the basis of misconstruction of the orders dated 06.12.2018 and 18.12.2018 rendering the petitioner to become hostile to the terms of the notice. True it is that the petitioner is the top cop of the State, and at the same time it is also true that he has to rely upon the communication, made to him legally from the State authorities, responsible to make communication. If there be any irregularities in the matter of misconstruction of such orders, pursuant to the valid legal communication being made to the petitioner, the petitioner cannot be made to suffer the consequence, that arose beyond his control.

Notice under Section 160 of the Cr.P.C. describing the petitioner to be a witness was served on innumerable occasions. Learned advocate for both the parties are ad idem to the stand that so long the proceeding pending before the High Court in connection with CRR 1308 of 2019 before a learned Single Judge of this Court, the status of the petitioner was not above the witness. The situation turned a dramatic turn, when the CBI prayed for issuance of a warrant of arrest before the learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, which was rejected, accepting the petitioner to be an accused involved in this case. It is, therefore, quite relevant to take note that till 13.09.2019, the petitioner, whose status remained as witness suddenly transformed into the category of accused, presumably with the collection of startling/clinching materials, that have been collected in the meantime against the petitioner requiring custodial interrogation, is conspicuously absent. The words “any person” appearing in Sections 160 and 161 Cr. P.C. are wide enough to include the person, who subsequently becomes an accused in course of investigation, and such proposition came to be decided in the case of Mahabir Mandal And Others –Vs. – State Of Bihar reported in AIR 1972 SC 1331.

Therefore, the status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

Much has been emphasized by the learned advocate for the petitioner regarding the antecedent of petitioner for his avoidance to the notice on innumerable occasions, and even after making a breach of the conditions while enjoying interim protection in connection with CRR 1308 of 2019 limiting his movement and further confining him to his residence, but uptil now there is nothing produced before us to challenge the order passed in CRR 1308 of 2019, which paves the way for us to conclude that disputing with the conditions and even for a violation of the conditions of the interim protection, the CBI had never challenged taking out an appropriate application, in spite of the liberty being granted to that effect, and that apart in pursuance of liberty being granted by the Apex Court, while withdrawing interim protection against the petitioner to take appropriate steps, the CBI has only moved before the concerned Magistrate with a prayer for issuance of non-bailable warrant.

Antecedent, if isolatedly viewed of recent past of a person, without looking into the entire tenure of the petitioner, when he continued to discharge his police function, proper reflection of antecedent cannot be perfectly ascertained.

In order to unfurl the larger conspiracy to prevent unearthing money, there has been extensive repeated questioning session as regards the petitioner and several persons were also subjected to interrogation for their respective role in the scam, and upon consideration of the materials produced before us being the relevant extract of the Case Diary, shown in the compilation referred above, we have hardly any scope to assume that it is the petitioner only clogging the investigation and without which the investigation is supposed to face the undesirable consequence.

Before this judgment is delivered, we ourselves made threadbare discussion over all the pros and cons of the matter relating to the scope of grant or refusal of the prayer for anticipatory bail. At the commencement of the hearing, we pointed out to the learned advocates for both the sides requesting them to make their precise argument only on the scope of Section 438. While passing the judgment we have persuaded ourselves to confine within the statutory limit of Section 438 of the Code of Criminal Procedure. We have reached a consensus in passing this judgment having equal contribution.

Having considered the rival contentions of the parties and the materials placed before us, in our honest effort while ensuring to strike a balance between the individual’s right to personal freedom and the right of the investigation agency to interrogate the petitioner as to the materials so far collected, we are of the considered view that this is not an appropriate case, when custodial interrogation would be justified.

Consequently, the custodial interrogation, as sought to be enforced by the CBI in the given set of circumstances, is not encouraging one, as it does not inspire confidence of this Court to justify custodial interrogation of the petitioner in this case, when he has rendered his cooperation substantially in the interest of investigation.

Accordingly, we direct that in the event of his arrest the petitioner shall be released on bail upon furnishing a bond of Rs.50,000/- with two sureties of like amount each, one of whom must be local having landed property within the jurisdiction of Kolkata, and he shall comply with the conditions as laid down in Section 438(2) of the Code of Criminal Procedure, and on further condition that he will render cooperation to the investigating officer by physically presenting himself for interrogation before the CBI at Kolkata, as and when demanded, but at least upon 48 hours prior notice being served upon him.

We make it clear that non-observance of the conditions so imposed, apart from the conditions imbeded in Section 438(2) Cr. P.C., as imposed hereinabove, would enable the CBI to seek cancellation of the bail here in granted without making any reference to the Court and the learned Court below would be at his liberty to go for cancellation on a proven breach of the condition without making reference to this Court.

The application for anticipatory bail stands allowed.

CRM no. 9230 of 21019 is thus, disposed of.

The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.

I agree.

(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)

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Kishan Tripathi @ Kishan Painter vs The State[Delhi HC 2016 February ]

KEYWORDS:-Electronic Evidence CCTV-

delhi high court

DATE :12th February, 2016

  • Electronic Evidence CCTV footage was used as direct evidence though there was no eyewitness -Section 65-B of the Evidence Act

ACT : Section 302 of the Indian Penal Code, 1860

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL APPEAL NO. 108/2013

Date of Decision: 12th February, 2016

CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE R.K. GAUBA

SANJIV KHANNA, J.
1. Kishan Tripathi, also known as Kishan painter because of his profession, by the present appeal, questions judgment dated 4th October, 2012, convicting him for murder of Sachidanand Jha in the intervening night between 22nd and 23rd February, 2009. By order on sentence dated 17th October, 2012, Kishan Tripathi has been sentenced to imprisonment for life, fine of Rs.75,000/- and in default of payment of fine, to undergo Simple Imprisonment for a period of two years for the offence under Section 302 of the Indian Penal Code, 1860 (IPC, for short).

2. Conviction of Kishan Tripathi is primarily predicated on the electronic evidence in form of CCTV footage, and therefore we had played the original footage captured and recorded on the hard disk in the court. Before, we elucidate and refer to this percipient and definitive evidence, we would like to refer to the facts in brief.

3. It has been proved beyond doubt and debate from the testimony of Rakesh Bhargava (PW-4), owner of the factory, located at C-59, Okhla Industrial Area-I, New Delhi that Sachidanand Jha was posted as a night duty guard from 8 P.M. to 8 A.M. in the intervening night between 22nd and 23rd February, 2009. 22nd February, 2009, being a Sunday was weekly off day for the workers. 23rd February, 2009 was Maha Shivaratri and therefore, the factory was again closed. In the morning hours of 23rd February, 2009 at about 9 or 9.30 A.M., Rakesh Bhargava (PW-4) had received a call from the workers in his factory that a dead body of a security guard was lying in the factory. PW-4 immediately informed the police on No. 100 from his residence. Dead body of Sachidanand Jha, whom he identified, was lying in the basement. The body had been covered with a compressor. Blood would be seen near the gate leading to the office. Office glass was broken and someone had entered the office and opened the locker. Rs.7,500/- and some documents had been stolen from the locker.

4. Discovery of the dead body of Sachidanand Jha in the early morning hours at about 9.30-10 A.M. on 23rd February, 2009 is also proved and established from the testimonies of Jawahar Singh (PW-3), who was the duty officer at Police Station Okhla Industrial Area and had received a message from the wireless operator regarding murder in the factory at C-59, Okhla Industrial Area-I at about 9.50 A.M. and had recorded DD No. 4A (Exhibit PW-3/C), which was marked to ASI Sakhi Ram (PW-20) through Constable Pawan Kumar. Jawahar Singh (PW-3) had subsequently registered FIR No. 71/2009, under Sections 302/201/460 IPC and made an endorsement Exhibit PW- 3/A on the rukka. The original rukka and the computerized copy was marked Exhibit PW-3/B. Head Constable Rajpal Singh (PW-7) had joined investigation by visiting C-59, Okhla Industrial Area-I, where ASI Sakhi Ram (PW-20) and Rakesh Bhargava (PW-4) were already present. He affirms having noticed blood on the stairs leading towards the basement and on the first floor. In the basement, dead body of a male with papers and an air compressor machine on top, was lying. PW-7 has deposed that the locker (tijori) had been broken. Head Constable Ram Chander (PW-16) testified that on DD No. 4A being marked, he along with ASI Sakhi Ram (PW-20) had reached C-59, Okhla Industrial Area-I and had met Rakesh Bhargava (PW-4). He had seen blood in substantial quantity on the stairs going from ground floor towards the basement giving an impression that the body had been dragged. Loose papers were found lying near the narrow passage in the basement. The deceased was a security guard named Sachidanand Jha and a compressor machine had been put on him. A small chest (tijori) in the premises was found to be damaged. The FIR was registered. Inspector B.S. Rana (PW-18)‟s testimony is almost identical on aspects like, noticing a dead body in a pool of blood in the basement with a compressor on the top. They had called the crime team with the photographer, who then took pictures from different angles. PW-18 had collected blood samples from the floor in the basement in the form of blood stained earth, and earth control samples etc, which were seized vide memo Exhibit PW-17/B. They had lifted black colour blood stained shoes from the basement, which were seized vide seizure memo Exhibit PW-7/D and the compressor, which had been kept on the dead body was taken into custody vide seizure memo Exhibit PW-7/C. One woolen blood stained cap was taken into possession vide seizure memo Exhibit PW-7/E. On the first floor, window pane of the back door of the office had been removed and was kept on the table. A small chest (tijori) had been broken. They took into possession the glass removed from the door vide seizure memo Exhibit PW-7/F and the small chest vide seizure memo Exhibit PW-7/G. ASI Sakhi Ram (PW-20) has in seriatim affirmed the aforesaid facts. The dead body was first shifted to the mortuary and after it was identified by the relatives of the deceased, namely, Manoj Kumar Jha (PW-6) and Krishan Kant Jha (PW-10), PW-20 had got the post-mortem conducted.

5. Dr. Susheel Sharma (PW-1) had conducted the post-mortem on the dead body of Sachidanand Jha on 24th February, 2009 vide report marked Exhibit PW-1/A. In the post-mortem report and the oral testimony, Dr. Susheel Sharma (PW-1) has referred to the following ante mortem injuries:-

” 1. A stab wound size 2x.4 cm cavity deep was present over right middle aspect of back situated 21 cm below to right shoulder tip, 123 cm above to right heel and 6 cm right ward to midline. Stab would was obliquely placed inner margin downward. Both angle sharp, spindle shape and associated with oozing of blood. On dissection a track is established directed forward, outward and downward passing through wound muscle of back and passing through posterior chest wall at 7 intercostal muscles and pleura and terminate in 3 cm depth of lower lobe of right lung associated with haematoma and haemothorex about 1.5 liter of blood.
2. Abrasion 10×10 cm area at right lower back.
3. Abrasion 15×10 cm area at middle of upper back.
4. Abrasion 5×4 cm area at right shoulder tip area.
5. A stab wound 4×1.5 cm muscle deep, irregular in shape was present at right aspect of neck, situated 2 cm rightward and inward to right mastoid tip, associated with haematoma. On dissection track is muscle deep, passing through wound through muscle of neck perforate right juglar vein. Trachea oesophagus and common carotid artery found intact. Direction of track is forward, downward and inward.
6. A stab wound 2×4 cm muscle deep was present at posterior triangle of right side of neck situated 10 cm rightward from midline, 8 cm above from right middle of clavicle, 10 cm downward to right mastoid tip associated with haematoma. On dissection track is directed downward and inward and associated with haematoma.
7. Abrasion 10×6 cm area at right cheek, infront of right tragus.
8. Incised wound .2x.5 cm at right angle of mouth.
9. Laceration 3×1.5cmx.5 cm at right eyebrow 4.5 cm leftward to midline.
10. Laceration 6x.5x.5 cm irregular in shape was present at left frontal aspect of scalp 2.5 cm leftward from midline associated with haemotoma.
11. Laceration 5x.5cmx.5 cm was present at frontal aspect of scalp of midline.
12. Abrasion 4×5 cm area at lower aspect of right axilla.
The time since death was about one to two days.”
The cause of death, it was opined, was a result of haemorregic shock consequent upon multiple ante-mortem injuries. Injury No. 1 caused by a pointed sharp edged weapon was individually sufficient to cause death in the ordinary course of nature. Injury Nos. 5, 6 and 8 were caused by a sharp weapon, whereas injury Nos. 2, 3, 4, 7, 9, 10, 11 and 12 were caused by a blunt force object impact. These injuries were also collectively sufficient to cause death in the ordinary course of nature. PW-1 had subsequently on 25th June, 2009 examined a knife and had opined that injury Nos. 1, 5, 6 and 8 mentioned in the post-mortem report Exhibit PW-1/A were possibly through this exhibit. He identified the knife without handle as Exhibit P-1 and his second opinion in respect of the knife was marked Exhibit PW- 1/B.

6. In addition to the aforesaid evidence, we have the testimony of Constable Anand (PW-11), who has deposed that on 23rd February, 2009, he was posted with the crime team as a photographer and had visited C-59, Okhla Industrial Area-I where he had seen a dead body of a male smeared with blood. Blood could be seen lying there and on the stairs. He had taken 47 photographs, which were marked Exhibit PW-11/A-1 to A-47 and negatives Exhibit PW-11/B-1 to B-

32. The other 15 negatives could not be produced as they were not traceable.

7. This brings us to the core of the prosecution case, i.e., the CCTV footage, which was the basis to identify the culprit, i.e., Kishan Tripathi.

8. Rakesh Bhargava (PW-4) has testified about the two cameras installed in his factory; camera 1 (channel 1) near the main gate and camera 2 (channel 2) in the basement. He along with the police had examined and thereupon PW-4 had identified the culprit, who could be seen in the footage inflicting injuries on the guard Sachidanand Jha, as Kishan Tripathi. At about 4.45 P.M. on 22nd February, 2009, the day time guard Mahesh Kumar had allowed Kishan Tripathi to enter the factory. Kishan Tripathi was wearing a sleeveless whiter colour sweater. At about 4:30 A.M. (sic. should be 4:20 A.M.) in the intervening night of 22/23.02.2009, the CCTV footage showed that Kishan Tripathi had dragged Sachidanand Jha to the basement. Appellant had given kick blows and had put the heavy air compressor on the dead body of the guard at about 4:20 A.M (sic. should be 4:22 A.M.). At about 4.23 A.M. on 23.02.2009, the appellant returned to give kick blows and had inflicted injuries with the knife which he had taken out from his pocket. After about one minute at 4.24 A.M., the appellant came back and had put printing paper on Sachidanand Jha. The appellant was also seen cleaning his spectacles. At 4.26 A.M., the appellant could be seen picking up a T-iron rod and giving blows to Sachidanand Jha. Between 4.30 A.M. and 6 A.M., Kishan Tripathi had checked and ascertained whether Sachidanand Jha was still alive or breathing. The appellant had changed his wearing apparel in the factory and had put on clothes of the workers, which were kept in the factory. The appellant left the factory at about 6-6.04 A.M. after opening the main gate. The appellant had taken out the keys of the main gate from the pocket of Sachidanand Jha.

9. The original CCTV footage, recorded on the hard disc which was taken into the custody and seized, was played in the trial court when Rakesh Bhargava (PW-4) was under examination. At that time, one Ram Milan private operator, who had subsequently deposed as PW- 15 had operated the hard disc and played the same. In his cross- examination, PW-4 testified that he had arranged for an operator, who had come after an hour and thereafter the CCTV footage was played in the factory on 23rd February, 2009 in the computer room in his presence and in the presence of two-three policemen. Others, including his brother and two-three workers were also present. It took about 2 ½ hours to watch the CCTV footage. PW-4 after seeing the CCTV footage was categorical, that Kishan Tripathi could be seen entering the factory, then dragging Sachidanand Jha and hitting and assaulting him. Lastly, the appellant was seen leaving the factory. Head Constable Rajpal Singh (PW-7) affirms that they had seen the CCTV footage and one person who was wearing spectacles had committed the offence. PW-7 then identified Kishan Tripathi, who was present in the court, as the said person. In his cross-examination, PW-7 affirmed that two CCTV cameras; one at the main gate and the other in the basement, were installed in the factory and that the factory owner had identified the culprit in the CCTV footage. PW-7 confirmed that the accused was seen dragging the deceased to the basement, repeatedly giving him kick blows and inflicting injuries with some instrument. Inspector B.S. Rana (PW-

18) similarly proves this version narrated by HC Rajpal Singh (PW-

7) and Rakesh Bhargava (PW-4) that the CCTV cameras were installed in the factory, an operator was called and the CCTV recording was played, whereupon Rakesh Bhargava (PW-4) had identified the perpetrator as Kishan Tripathi. This person was visible and could be seen hitting Sachidanand Jha. PW-18 had then removed the hard disc from the computer system with the help of Ram Milan (PW-15) and sealed the same and they took the hard disc into possession vide seizure memo Exhibit PW7/H.

10. This brings us to the important testimony of Ram Milan (PW-15), who has equally affirmatively deposed that on 23rd February, 2009, on request, he had visited factory No. C-59, Okhla Industrial Area-I and had played a CCTV footage. In the said CCTV footage, they could see one person dragging and killing another person. PW-15 identified the appellant who was seen dragging Sachidanand Jha, and whose name he came to know after watching the CCTV footage. PW-15 had taken out the hard disc out from the assembled computer and the IO had seized the same vide seizure memo Exhibit PW-7/H. PW-15 affirmed that he had earlier come to the court and had played the CCTV footage in the court on 2-3 days. In his cross- examination, PW-15 confirmed that two cameras were installed in the factory.

11. Kishan Tripathi was known to Rakesh Bhargava (PW-4) as he used to work as a painter in his house, nearby houses and his factory. PW-4 has deposed that a month prior to the incident, Kishan Tripathi had worked in his factory. Two days prior, he had seen Kishan Tripathi standing outside the factory at 8.30 P.M., when PW-4 was going home. Sushila (PW-13), a tea vendor has also deposed that she knew the appellant, who was a painter and used to do white washing and painting work.

12. Pertinently, in order to re-assure and verify, we had called for the original hard disc from the malkhana. The same was produced in a sealed cover with court seals. The said seals were inspected by the counsel for the appellant-Kishan Tripathi. This hard disc was attached to a computer by one Neeraj and CCTV footage was played in the Court for our examination and visual viewing. Counsels were also allowed to watch and see the relevant portions of the video files. Files from the said hard disc were copied in two pen drives of 8 GB each marked Exhibits HC-1 and HC-2. Thereafter, the original hard disc was detached and re-sealed in the presence of the Court Master and returned to the Additional Public Prosecutor to be deposited in the malkhana. We had also played the two CDs available on the trial court record on the laptop.

13. The CCTV footage, which was directly and immediately stored in the hard drive of the computer is the original media, that was self generated and created without any human intervention. This CCTV footage is not secondary evidence and does not require certification under Section 65B of the Evidence Act. This issue is no longer res integra and is settled in the decision of the Supreme Court in Anwar P.V. (S) versus P.K. Basir, (2014) 10 SCC 473, which hold:-

“24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made there from which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”
The aforesaid paragraph elucidates difference between primary and secondary evidence. When primary or direct evidence in form of original data be it a CD, hard drive or any other electronic record is produced, the same is admissible and taken on record. This takes care of the contention of the appellant that the CCTV footage should be discarded and not read in evidence in the absence of a certificate under Section 65B of the Evidence Act.

14. The CCTV footage is captured by the cameras and can be stored in the computer where files are created with serial numbers, date, time and identification marks. These identification marks/ details are self generated and recorded, as a result of pre-existing software commands. The capture of visual images on the hard disc is automatic in the sense that the video images get stored and recorded suo-moto when the CCTV camera is on and is properly connected with the hard disc installed in the computer. It is apparent in the present case from the evidence led that no one was watching the CCTV footage when it was being stored and recorded. The recording was as a result of commands or instructions, which had already been given and programmed. The original hard disc, therefore, could be the primary and the direct evidence. Such primary or direct evidence would enjoy a unique position for anyone who watches the said evidence would be directly viewing the primary evidence. Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with reference to the fact which can be seen, it must be the evidence of the witness, who had seen it, with reference to the fact, which could be heard, it must be evidence of the witness, who had heard it and if it relates to the fact, which could be perceived by any other sense or any other manner, then it must be the evidence of the witness, who says who had perceived it by that sense or by that manner. Read in this light, when we see the CCTV footage, we are in the same position as that of a witness, who had seen the occurrence, though crime had not occurred at that time when the recording was played, but earlier.

15. HG wells in his book “The Time Machine” had said “Now I want you clearly to understand that this lever, being pressed over, sends the machine gliding into the future, and this other reverses the motion. This saddle represents the seat of a time traveler. Presently I am going to press the lever, and off the machine will go. It will vanish, pass into future Time, and disappear. Have a good look at the thing. Look at the table too, and satisfy yourselves there is no trickery.” Time machine is friction, albeit seeing the CCTV footage with your own eyes as a judge gives you an insight into the real world in the past. In the present case, the court has itself seen the CCTV footage, and has travelled back in time to the time when the occurrence took place and thereby has seen the occurrence in the same position as that of a witness, who would have seen the occurrence, if he was present. There cannot be a more direct evidence. This video recording which captures the occurrence, would be per se and mostly discerningly reliable and compellingly conclusive evidence, unless its authenticity and genuineness is in question.

16. Per force, we must rule out any possibility of manipulation, fabrication or tampering. The hard-disk CCTV footage must pass the integrity test. It is a two fold test, system integrity and record integrity. It is with this over cautious and pensive approach, that we have proceeded and have bestowed our consideration. We would accept the genuineness and authenticity of the CCTV footage played before us, for good and sound reasons. System integrity test is satisfied by ocular testimonies of Rakesh Bhargawa (PW-4), Ram Milan (PW-15) and police officers H.C. Rajpal Singh (PW-7) and Inspt. B.S. Rana (PW-18). System was working and contemporaneously storing data. They had viewed the data. On record integrity, i.e., contents of the record have remained unchanged, we were anxious as it was noticed that the list of documents at Sr. No. 27, filed with the charge-sheet, mentions compact disc (CD) indicative that the hard drive had been examined and secondary evidence was created. Examination of the police case file had revealed that the CD was created at the behest of the public prosecutor, before the charge-sheet was filed. This was certainly a lapse and the hard disc sealed and deposited in the malkhana should not have been opened, even for the purpose of making copies of the video files. However, in the facts of the present case, this transgression and deviation would not unsettle and nullify the authenticity of the CCTV footage for there is no evidence or even a suggestion that the appellant Kishan Tripathi was at any time under compulsion or force, was asked to enact the crime at the place of occurrence. Moreover, the CCTV footage was seen on 23rd February, 2009 by Rakesh Bhargava (PW-4) and the police officers HC Rajpal Singh (PW-7), Insp. B.S. Rana (PW-18) and Ram Milan (PW-15) who had operated and played the CCTV footage. We are satisfied that the recorded CCTV footage has not been interpolated or tampered in the light of the original hard drive, which has been played before us. The footage recorded consists of 405 files starting from 2:06 P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers. Time and date are mentioned on the files and the video. These are not one, two or three files, but more than 400 files, created over a span of several hours. This “internal evidence” establishes its genuineness. Hard disk in the present case is not only a physical object, but a document within the meaning of section 3 of the Evidence Act [See Shamsher Singh Verma Vs. State of Haryana, 2015 (12) Scale 597]. The Supreme Court in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857, has held that execution of a document can also be proved by the “internal evidence” contained in the contents of the document. The circumstantial evidence enforces our belief that the original document, i.e. hard drive, is original and authentic.

17. In these circumstances, we would like to reproduce the snap shots from HC-1 and HC-2 in this judgment, which would foreclose all arguments as to the identity of the perpetrator, i.e., Kishan Tripathi. Thus, there cannot be any doubt at all as to the identity of the appellant Kishan Triapthi, who is guilty for murder of Sachidanand Jha in the intervening night between 22nd and 23rd February, 2009 at C-59, Okhla Industrial Area-I, New Delhi.

Entry in the factory at 4:45 PM on 22.02.2009 At the basement from 4:20 AM to 4:30 AM in the intervening night of 22/23.2.2009 Leaving the factory at 6-6:04 AM on 23/02/2009
18. The snap shots re-produced do not include the close-ups of the appellant Kishan Tripathi, who was present in person in the court during the course of hearing of his appeal. We accept that the pixels of the CCTV footage were not very high, albeit, the presence of the appellant and that he was the perpetrator can be established and ascertained from the CCTV footage.

19. Prosecution has also relied upon the statement of Sub Inspector Avdesh Kumar (PW-8), finger print expert, who had stated that the chance print marked Q2 lifted from the spot was identical to the left thumb impression of the appellant and accordingly he had given his report Exhibit PW-8/A. We would, however, not rely upon the said report as the person who had lifted the chance print from the spot did not testify and depose as a witness.

20. As per the police version, Kishan Tripathi was arrested on 27.02.2009 at 3:30 P.M. by the police near an orphanage at Sarita Vihar, New Delhi vide arrest memo Exhibit PW-14/A. Rakesh Bhargava (PW-4) has deposed that he came to know about Kishan Tripathi‟s arrest on 27.02.2009. He has also deposed that a knife was recovered at the behest of the appellant from the basement. The knife was hidden in the bundle of papers wrapped in a jute tat. A T- iron rod was also recovered at the behest of the appellant-Kishan Tripathi. The knife was identified as P-1 and T-iron rod as P-6. The two objects were seized vide Exhibit PW-14/I and 14/J. Recovery is also deposed to and affirmed by Constable Harender (PW-12/14). The latter has testified about the disclosure statement made by Kishan Tripathi marked Exhibit PW-14/C. The said statement was recorded by SI Girjesh Singh (PW-19). Constable Harender (PW- 12/14) has deposed about the recovery of blood stained pant (Ex. P-

3) from bushes behiend Anaath Ashram, which was seized vide seizure memo Exhibit PW-14/E and recovery of black shoes and one pair of blood stained socks (Ex. P-4, collectively) from the bedding lying on the floor, which were seized and taken into possession vide seizure memo Exhibit PW-14/F. A shirt with stripes, which the appellant was wearing at the time of offence and had been washed was also seized along with the cream colour sweater (Ex. P-5, collectively) and taken into possession vide seizure memo Exhibit PW-14/G. The said recoveries of the pant, shirt, socks and shoes was also deposed by and affirmed by SI Girjesh Singh (PW-19).

21. The trial court has taken on record the forensic science laboratory report dated 12th June, 2009, which shows presence of human blood of group „B‟ on the knife and the pant. Human blood could also be detected on the T-rod, but the blood group could not be ascertained. The impugned judgment refers and rejects the argument that the knife and the T-rod could have been recovered earlier or were planted. We observe that the said recoveries and report is only a corroborative or supplementary evidence. The primary and core evidence in the present case would be the CCTV footage.

22. Appellant Kishan Triapthi in his statement under Section 313 of the Code of Criminal Procedure, 1973 has accepted that he knew Rakesh Bhargava (PW-4) and had undertaken painting work in his house and factory about 10-15 days prior to the occurrence. However, appellant claimed that he was not shown the CCTV footage and has denied several suggestions given as incorrect/I do not know, and claimed he had visited the house of Rakesh Bhargava (PW-4) on Saturday where pooja was going on. Wife of Rakesh Bhargava (PW-4) had asked him to reach the factory. He had accordingly proceeded to the factory and reached there at about 4-4.30 P.M. At that time, Rakesh Bhargava (PW-4) had threatened and warned the appellant not to demand money or otherwise he would be implicated in a false case. On Sunday at 10 A.M., the appellant had visited the house of Rakesh Bhargava (PW-4) and had demanded money. Rakesh Bhargava (PW-4) had asked him to come to the factory about 4-5 P.M. on Sunday as he would also be reaching there. Appellant had reached the factory as asked, but Rakesh Bhargava did not come. Appellant was not allowed to enter the factory by the guard, even though his goods were lying outside. The guard had asked him to procure/ bring some goods for him and had given him money. Appellant had bought the goods for the guard and had proceeded to Noida where he was doing painting work. Thereafter, the appellant had gone to Jahangirpuri, where he came to know that police was searching for him. He was arrested at 8/9 P.M. at Jahangir Puri. He was then taken to the factory and was made to put his palm on various articles and then brought to the chowki and kept there for the entire night. Next day he was taken to his room at Madanpur Khadar and thereafter sent to jail.

23. The appellant had led defence evidence. Ravinder Pandey (DW-1) has testified that on 26th February, 2009 at about 8 P.M. police officers had come to his house and had taken Kishan Triapthi into custody. They had left DW-1 at about 10-11 A.M. on 27th February, 2009. In his cross-examination DW-1 has accepted that he had not apprised the local police or higher police officers that Kishan Tripathi was arrested or detained by the police in his presence. DW- 1 expressed ignorance whether information regarding arrest of Kishan Tripathi was given to Satish Singh son of Ram Sharan Triapthi on 27th February, 2009. Head Constable Om Prakash (DW-

2) has testified that DD No. 3B was recorded on 27 th February, 2009 at 00.30 hours (Exhibit DW-2/A). Thereafter, another DD No. 34B was recorded at 9.25 A.M. (Exhibit DW-2/B). These, DD entries mention the name of Ravinder Pandey, which indicates reference to DW-1. At best, these witnesses would show that Kishan Triapthi was possibly detained in the intervening night between 26th and 27th February, 2009. However, this would not make any difference. Dr. Kamlesh (DW-3), the third defence witness is a Director (Professor) at the Gurunanak Eye Hospital. The appellant was diagnosed with alternate convergent squint and was admitted for treatment on 9th February, 2010. The appellant was using myopic glasses and had aided vision of 6/18 in both eyes. He had undergone surgery on 11 th February, 2010 and the squint was fully corrected and the patient was discharged on 12th February, 2010. In his cross-examination, DW-3 clarified that the appellant did not have any problem in seeing at night and was not diagnosed to be suffering from night blindness. These depositions, do not show that the appellant is innocent or the prosecution evidence in the form of CCTV footage is of doubtful integrity and fabricated. The core evidence i.e. CCTV footage nails the appellant, Kishan Tripathi.

24. In view of the aforesaid findings, we do not find any merit in the present appeal. We uphold the conviction of the appellant Kishan Tripathi for having committed murder of Sachidanand Jha. We also do not see any reason to interfere with the order of sentence. The appeal is accordingly dismissed.

 (SANJIV KHANNA) JUDGE

 (R.K. GAUBA) JUDGE

Dharambir Vs. Central Bureau of Investigation [Delhi HC 2008 MARCH]

Keywords: Electronic evidence-computer systems

delhi high court

DATE : 11 March 2008

ACTS :­ Sections 173(5) and 207 Cr.p.c ­ Sections 3 and 65B of the Indian Evidence Act 1872 ­ Sections 2(o) r/w section 2(t) IT Act

  • Hard Disk is storage device is as well as document
  • Electronic Evidence : Hard Disc is storage devise if written then electronic record:

HELD : Criminal Electronic evidence ­ Sections 173(5) and 207 Cr.p.c ­ Sections 3 and 65B of the Indian Evidence Act 1872 ­ Sections 2(o) r/w section 2(t) IT Act ­ Prosecution intercepted the telephonic conversation between the accused persons and forwarded the relevant hard disks to Forensic lab and after certification same were submitted to Trial Judge ­ Trial Court took cognizance of the offence and issued process in four separate cases relating to corruption ­ Question before the court was Whether the hard disks can be considered as relevant document under Evidence Act.?

(ii) Does the denial of the same will amount to violation of fundament right to fair trial ? ­

(iii) Whether prosecution complied with section 207 Cr.pc.?

­ HDs themselves would be electronic records and therefore documents for the purposes of Section 173(5)(a) read with Section 207(v) CrPC ­ During the pre­charge stage the trial court is not expected to insist that copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon ­ Prosecution cannot obviate the statutory requirement under Section 207(v) of Cr.p.c for providing to the accused access to the original recording ­ At the present pre­charge stage, the accused has to be given access to the HDs as a relied upon document to the limited extent ­ As long as the said provisions of the CrPC are strictly complied with, and they should be insisted upon being strictly followed, there can be no violation of principles of fair Trial ­ Petitioners are permitted to listen to the original recordings of the relevant intercepted telephonic conversations relied upon by the prosecution ­ Petition allowed accordingly.


Delhi High Court
Dharambir vs Central Bureau Of Investigation … on 11 March, 2008
Equivalent citations: 148 (2008) DLT 289

Bench: S Muralidhar

JUDGMENT S. Muralidhar, J.

Introduction 1.1 Questions of law concerning supply of copies of documents, gathered by the prosecution during investigation, to an accused person at the pre-charge stage arise for consideration in these petitions. It involves the interpretation of Sections 173(5) and 207 of the Code of Criminal Procedure 1973 (CrPC), Sections 3 and 65B of the Indian Evidence Act 1872 (‘EA’) and Sections 2(o) read with Section 2(t) of the Information Technology Act, 2000 (IT Act).

1.2 In order to appreciate the issues that arise a brief background is being set out. The petitioners here are persons accused of offences under Section 120B IPC and under Sections 7 to 12, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (‘PC Act’) in four different cases. In the charge sheets filed in the four cases, the prosecution has stated that as part of the investigation, intercepted telephonic conversations between the accused persons were recorded on four hard discs (HDs) in the computer systems kept at the office of the Special Unit (SU) of the Central Bureau of Investigation (CBI) in New Delhi. The charge sheets further state that these conversations took place on fifteen mobile phones and land lines (hereafter ‘tapped phones’), belonging to one of the accused, which were placed under electronic surveillance between December 2002 and March 2003 pursuant to statutory permissions obtained from time to time from the competent authority. After listening to and analyzing the intercepted conversations recorded on the HDs, the CBI transferred to separate Compact Discs (CDs) such of those conversations which CBI considered to be relevant for each of the four cases.

1.3 The four computer systems containing the HDs and the CDs were then sent to the Andhra Pradesh Forensic Sciences Laboratory (APFSL) for certification for two purposes. First, that the HDs were in working condition as required by Section 65B(2)(c) EA and secondly, that the conversations transferred to the CDs were true copies of their original recording on the HDs. The CDs certified by the APFSL were thereafter forwarded to the learned Special Judge, New Delhi along with the charge sheets. The four HDs have been retained at the APFSL, Hyderabad.

1.4 The Special Judge took cognizance of the offences and issued process to the accused. Copies of the respective charge sheet and its annexures, along with a transcript of the intercepted telephone conversations relevant to the case were furnished to each of the accused. Later, the CDs containing the said relevant telephone conversations were also supplied to the accused.

1.5 During the course of arguments on charge, some of the accused in the four cases filed applications before the Special Judge asking for a direction to the CBI to supply to each of them mirror-image copies of the HDs. This was declined by the Special Judge by separate orders. Aggrieved, the accused have approached this Court with the present petitions, one of which is under Article 226 of the Constitution and the others under Section 482 CrPC.

1.6 On 16th May 2007 this Court directed that arguments on charge could be proceeded with before the Special Judge but ‘formal order be kept in reserve.’ This order was challenged before the Supreme Court and the Special Leave Petition was disposed of on 29th February 2008 requesting this Court to take up the case on 4th March 2008 and ‘dispose of the matter latest by 11.03.2008.’ 1.7 In compliance of an order dated 29th February 2008 passed by the Supreme Court, these petitions were heard on March 4th, 6th, 8th and 9th 2008 and judgment is delivered today, 11th March 2008. Despite the last three dates being holidays, counsel for the parties addressed arguments on each of them. The Court expresses its appreciation of the cooperation extended by counsel.

The four cases 2.1 There are four cases in each of which a charge sheet has been filed and where some or all of the Petitioners here have been arrayed as accused. The FIR in the earliest of the four cases, bearing No. RC 0025(A)/2003-DLI was registered on 3rd April 2003 under Sections 7, 13(2) read with 13(1)(d) PC Act. This concerns the unauthorised construction of a lift at the property at Mahavira Towers, IIIrd Floor, Paschim Vihar. In this case (hereinafter the ‘Lift Case’) Shri Subhash Sharma (‘Sharma’), the former Vice-Chairman of the Delhi Development Authority (DDA) is accused No. 1, Shri Dharambir Khattar (‘Khattar’) who allegedly worked as a middleman between public servants and private individuals is accused No. 2, Shri Ved Prakash Kaushik an individual and coconspirator who helped in liaising with the DDA is accused No. 3, Shri Pradeep Kapoor husband of Smt. Kavita Kapoor, a partner of a firm M/s APY Hoteliers and Developers is Accused No. 4 and Shri Anil Wadhwa and Shri Yashpal Manocha, the other two partners of the said firm are accused Nos. 5 and 6 respectively. The charge sheet in the Lift Case was filed on 15th July 2004 The prosecution concluded its arguments on charge almost two years ago on 2nd June 2006. Arguments on behalf of accused No. 1 Sharma have been completed. The arguments on behalf of accused No. 2 Khattar are in progress and arguments are yet to be addressed on behalf of the four other accused.

2.2 The second case is RC-1(A)/2003-ACU-1 which was registered on 26th March 2003 for the offences under Section 120B IPC read with Section 13(2), 13(1)(d) PC Act. It concerns the Modern Public School Education Society, Shalimar Bagh, Delhi (‘Society’). The chargesheet was filed in this case [hereafter ‘the School case’] on 30th July 2004 It states that the Society was allotted 3.977 acres of land by the DDA on 11th July 1985 for the construction of a higher secondary school and playground. Despite approval of the building plan on 2nd August 1991, the Society did not construct the school building within a stipulated time of two years. A show cause notice was therefore issued to it by the DDA on 18th November 2002 for cancellation of the lease. The case of the prosecution is that the Accused No. 1 Sharma, accused No. 2 Shri Jagdish Chandra, the then Director (Lands) DDA, Accused No. 4 Shri Ashok Kapoor, the then Private Secretary to Sharma, and Accused No. 5, Shri Amrit Lal Kapoor, Director of the Society, in conspiracy with Accused No. 3 Khattar ensured that the lease was not cancelled and the composition fee not imposed leading to a pecuniary loss of Rs. 62,06,594 to the Government. Arguments on charge have been completed by the prosecution on 7th November 2005. The arguments of only accused Nos. 4 and 5 remain to be addressed and are expected to be completed on 19th March 2008.

2.3 The third case is RC.2(A)/2003-ACUIII registered on 26th March 2003 under Sections 120B IPC read with Sections 7, 8, 13(2) read with 13(1)(d) PC Act. Accused No. 1 is Sharma, the former Vice-Chairman DDA, Accused No. 2 is Shri Anand Mohan Sharan (‘Sharan’), the former Commissioner (Land Disposal) DDA, Accused No. 3 is Shri Vijay Risbud, Commissioner (Planning) DDA, Accused No. 4 is Shri Jagdish Chandra Director (Lands) DDA, Accused No. 5 is Khattar, Accused No. 6 is Shri Ajay Khanna of DLF Universal Ltd. Shri Ravinder Taneja, Shri G.R. Gogia and Shri Mukesh Saini, accused Nos.7,8 and 9 respectively, have been named as co-conspirators. The charge sheet in this case (hereinafter known as ‘DLF case’) was filed on 31st March 2005. The case of the prosecution is that the accused entered into a criminal conspiracy with private parties in order to show undue benefit to DLF in the matter of allowing Floor Area Ratio of 300 in place of 139 and by charging rates much below the prevailing market rates in lieu of obtaining illegal gratification from DLF. The bribe amount agreed was Rs. 1.1 Crores of which Sharma then Vice Chairman of DDA was to get Rs. 50 lakhs and the rest of the amount was to be shared amongst Sharan, Chandra and Khattar. Risbud was to be gratified separately by DLF. It is stated that Taneja and Gogia were involved in the delivery of amount of the bribe. In this case the prosecution is expected to complete its arguments on 13th March 2008 after which arguments would be addressed on behalf of each of the other accused.

2.4. The fourth case is RC.3(A)/2003-ACU.X in which the FIR was registered on 29th April, 2003 under Sections 120B read with 7, 8, 9, 12, 13(2) read with 13(1)(d) PC Act. Accused No. 1 is Shri Shameet Mukherjee (‘Mukherjee’) a former Judge of this Court, Accused No. 2 is Sharma, the former Vice-Chairman DDA, Accused No. 3 is Shri Vinod Khatri (‘Khatri’) and Accused No. 4 is Shri Ashok Kapoor (‘Kapoor’), a former Private Secretary to Sharma. In this case (hereafter the ‘Shameet Mukherjee Case’), the charge sheet was filed on 5th April 2005. The prosecution’s case is that Khattar enjoyed a close relationship with Sharma and Mukherjee. Even after he became a Judge of this Court, Mukherjee used to visit premises of Khattar at 431, Mathura Road, Jangpura Extension, New Delhi and 2 K. G. Road and frequently enjoy the hospitality of Khattar. It is stated that Khattar acted as a conduit between Mukherjee and various private parties who wanted their pending cases to be decided favorably. The allegation is that the official files and records of cases in the Court of Mukherjee used to be taken to the premises of Khattar at Mathura Road in which Mukherjee used a room for his work. It is stated that CBI recovered files of cases pending in the Court of Mukherjee while they were being taken out from the aforementioned premises belonging to Khattar by Ashok Kapoor in his Maruti Van on 26th March, 2003. This included a six-page draft, unsigned order of the Court in a Suit titled Azad Singh v. DDA. It is alleged that the conspiracy was entered into between the accused aforementioned to cause undue benefit to Khatri who was interested in two suits pending in the Court of Mukherjee which pertained to two properties. Khatri, a dismissed Constable of the Delhi Police, had illegally occupied Gram Sabha land vested with the DDA for running the Sahara Restaurant. He was interested in the continuation of the interim order passed in Azad Singh v. DDA which effectively prevented the widening of the Aruna Asaf Ali Road. If the stay was lifted, it would cause Khatri a huge loss because he would have had to lose possession of two plots adjacent to the plot which was being claimed by Azad Singh. Also the commercial interests of the Sahara Restaurant which was about 1900 feet away from the Azad Singh plot would be affected by the road widening. The charge sheet details the manner in which the conspiracy between the accused ensured a interim order being passed to protect the interests of Khatri. The arguments on charge on behalf of the CBI and Mukherjee have concluded. The arguments on behalf of Sharma are in progress. The arguments on behalf of other three accused are yet to take place.

The interception of calls and their recording 3.1 What is common to all the chargesheets is that apart from the statements of witnesses, and certain documents details of which have been set out in the Anexures to the chargesheets, the prosecution seeks to rely on intercepted conversations involving the accused made on 15 mobile and landline telephones belonging to Khattar, his family members and other accused which were placed under electronic surveillance between December 2002 and March 2003 pursuant to permissions being obtained from the competent authority from time to time under the Indian Telegraph Act 1885 and the Rules there under.

3.2 After listening to the various conversations between the accused, the CBI prepared call information records of identified calls of conversations between accused persons relevant to each of these cases. In the Shameet Mukherjee case, according to the charge sheet, the relevant calls between the accused persons were copied on to 19 CDs and taken on record for investigation. These 19 CDs contained conversations pertaining to 768 calls. From these 19 CDs, 100 short-listed telephone conversations relevant to Shameet Mukherjee case were prepared and transferred to 4 CDs. According to the chargesheets filed in the other three cases, the postion regarding the relevant calls according to the CBI are as under:

(i) The Lift Case: 25 calls, transferred to 3 CDs.

(ii) The School case: 14 calls transferred to 2 CDs.

(iii) The DLF case: 62 calls transferred to 3 CDs.

3.3 As noticed earlier, the four hard discs and the CDs containing the relevant conversations were sent to the Andhra Pradesh Forensic Science Laboratory (‘APFSL’) for comparison with the originals and certification that the conversations recorded in the CDs were true copies of the original recording in the hard discs and further for certifying that the HDs were in a working condition. The APFSL was asked to certify that the time, date and duration of the calls in the CDs tallied with the data files in the four hard discs. The APFSL sent to the CBI the results of the examination in a report dated 22nd July 2003 which confirmed that the recorded conversations were true copies of the originals and that the HDs were in a working condition.

3.4 It is not disputed that the CDs containing the copies of all the aforementioned relevant conversations were forwarded to the court of the Special Judge by the CBI along with the charge sheets. Initially along with the copies of the respective charge sheets, each of the accused was given a transcript of the relevant intercepted telephone conversations recorded in the CDs. Thereafter, pursuant to the orders passed by the Special Judge, the copies of the CDs containing the relevant intercepted telephone conversations themselves were furnished to each of the accused.

Proceedings before the Special judge

4. After the charge sheets were filed the learned Special judge took cognizance of the offences and issued process. Over a period of two years thereafter, the accused filed applications before the learned Special Judge under Section 207 seeking copies of documents and in particular the mirror image copies of the hard discs. The learned Special Judge by separate orders dated 17th September 2005 and 8th March 2006 in the School case, 24th March 2006 in the Lift case, 5th September 2006 in the Shameet Mukherjee case, 19th September 2007 in the DLF case, rejected each of the applications. The significant findings in the order dated 19th September 2007 passed by the Special Judge in the DLF case, were as under:

a. The certificate dated 22nd July, 2003 issued by the APFSL on examination of the 3 hard discs, i.e. A, D and E and 3 CDs containing the 62 calls in the DLF case, was to the effect that the data in 62 telephone calls tallied with the respective files in the hard discs. The certificate was therefore in compliance with Section 65B(4) EA and had to be treated as evidence within the meaning of Section 3 EA. Therefore the 3 CDs fell within the definition ‘computer output’ being an electronic record within the meaning of Section 65B(1) EA and had to be treated as an original document.

b. There was force in the contention of the learned Counsel for the CBI that the four hard discs recorded telephone calls between persons not connected with the present cases and handing over a copy of these hard discs to the accused persons would prejudice the case of the other co-accused and persons unconnected with these cases. In any event, since the CDs of the relevant telephone conversations which were computer output within the meaning of Section 65B EA had been handed over to the accused, the mandate of Section 207(v) read with 173(5) CrPC had been complied with.

c. Since the prosecution was not relying upon telephone calls other than those copied on the CDs and therefore did not include the other calls in the list of documents appended with the charge sheet with 3 CDs, nothing more needed to be handed over to the accused. The request for supply of mirror image copies of the hard disc was rejected.

d. As regards non-compliance with the requirement of Rule 419 of the Indian Telegraph Rules, those were matters of evidence which could not be gone into at the stage of framing of charge.

d. The question whether the prosecution was, in the garb of indicating what evidence they proposed to rely upon, indulging in arbitrary picking and choosing of telephone calls, did not arise since the prosecution was not relying upon the four hard discs, copies of which were sought by the accused. There would be ample opportunity for the defense to cross-examine the expert witnesses of the APFSL on their analysis of the call duration, time date and so on.

The present petitions 5.1 Aggrieved by the aforementioned orders, some of the accused have filed these petitions under Section 482 CrPC. As regards AM Sharan, he has filed Writ Petition (Crl) 1393 of 2007, in which the prayer is for a direction that the ‘entire recorded and intercepted messages be destroyed’ on the ground that they have been illegally obtained in contravention of Section 5(2) of Indian Telegraph Act, 1885 and Rule 419A of the Indian Telegraph Rules, 1951. He has further prayed for quashing the order dated 19th September 2007 passed by learned Special Judge, declining the request for the mirror images of the hard disc in the DLF case. Jagdish Chandra, an accused in the DLF case has filed Crl. Misc. (C) No. 203 of 2007 for a direction to the trial court to hear arguments on charge on a day-to-day basis.

5.2 Initially, when these petitions were filed notices were directed to issue but no interim order was passed. On 16th May 2007, since the position of the board did not permit a hearing of the cases, it was directed that they should be listed on 28th May, 2007 and that ‘in the meanwhile, the trial court may continue with hearing on charge but formal order be kept in reserve.’ Thereafter the interim orders were kept continued from time to time.

5.3 Aggrieved by the order dated 16th May, 2007 the CBI filed SLP (Crl) No. [Crl. MP No. 3060] of 2008 in which the following order was passed by the Supreme Court on 29th February 2008:

Delay condoned.

Since the parties are present, we request the High Court to take up the matter on 04.03.2008. Without further notice, the parties shall appear before the learned Chief Justice of the High Court with a copy of our order so that an appropriate Bench can be fixed for hearing of the petition, i.e. Criminal Misc. Application No. 2845 of 2007 in Criminal M.C. No. 203 of 2007. The High Court is requested to dispose of the matter latest by 11.03.2008. The special leave petition is disposed of accordingly.

5.4 This order was communicated to this Court on 4th March, 2008 during the lunch recess. Since the decision in Crl.M.A. No. 2845 of 2007 in Crl.M.C. 203 of 2007 would affect all the connected cases, counsel for the parties in all the cases insisted that they should all be heard as well. On 4th March 2008 the hearing commenced and orders were reserved on 9th March, 2008.

Submissions of counsel 6.1 Arguments have been heard at length of Shri R.N. Mittal, Dr. A.M. Singhvi and Shri Siddharth Luthra, learned Senior counsel, appearing for the Petitioners. Shri Dayan Krishnan, learned Counsel addressed arguments on behalf of the CBI.

6.2 The submissions on behalf of the petitioners were:

(i) In each of the charge sheets, the CBI has detailed the process of arriving at the list of calls ‘relevant’ to each of the cases. This process shows that telephone conversations on the tapped phones were recorded into a hard disc and from the hard disc the so-called relevant calls were culled out and transferred into CDs which have been handed over to the accused. Since there is a reference to the hard discs in the charge sheet, the conversations recorded in those hard discs were certainly ‘documents’ within the meaning of Section 3 EA read with Section 173(5)(a) and 207(v) CrPC. Such documents as had been relied upon had necessarily to be supplied to the accused.

(ii) Section 65(B)(1) EA states that copies of an electronic record transferred to another medium would be deemed to be a document admissible in evidence subject to the conditions in Section 65(2) EA being complied with. This would render the HDs as relied upon documents and this would therefore also require the accused to be given copies of the HDs.

(iii) The CDs furnished to each of the accused is only partial information and the prosecution is bound to furnish to each of them at the pre-charge stage the entire material gathered by it during the course of investigation. The CBI Manual specifically mandates the procedure to be followed by the CBI while investigating the case when it involves electronic records. A clone of the hard disc is expected to be prepared and sent for analysis since the removal of a hard disc from a Computer Processing Unit (‘CPU’) can itself alter the structure of the content of the hard disc. Unless each of the accused was given a mirror image copy of the hard disc it would not be possible to ascertain whether even in relation to these so-called relevant calls whether they have been altered in any manner by writing over, removal and reinsertion and so on. It is stated that this is absolutely essential since the test report of the APFSL when compared with the information provided by the telephone companies shows that there is a discrepancy in call duration and time and this cannot be verified except by obtaining a copy of the hard disc.

(iv) Admittedly, the number of intercepted telephone conversations that took place between the accused and recorded in the HDs was in excess of 50,000. It is entirely the whim of the CBI as to how it has chosen certain telephone calls which are considered to be ‘relevant’. It is sought to be demonstrated from the printout of the details of the telephone calls as furnished by the service provider that between the same two persons all the conversations on a particular date have not been picked up as being relevant. Even between 4 or 5 calls made in succession, alternate calls have been picked up and rest left out. Unless the entire set of calls recorded on the hard disc is provided to the accused persons, they would not be able to demonstrate if any material contained in the left out calls, is of advantage to the accused, or exculpates the accused.

(v) Each of the accused has a fundamental right to a fair trial under Articles 20,21, and 22 of the Constitution of India, which fundamental right has been given effect to in the various provisions of the CrPC. Denial of any material gathered during investigation by the prosecution, and referred to or produced with a charge sheet, would be a violation of that right.

(vi) It is submitted that for the purposes of Section 173(5)(a) CrPC what can be said to be ‘relevant’ by the prosecution cannot be left to be decided by the prosecution itself. In any event the Court is not powerless, if it feels that the document or a portion of the document that has been referred to by the prosecution is necessary to be given to the accused, it can direct that the prosecution should furnish such a copy to ensure that the accused is not denied the fair right of defense at the trial.

(vii) It makes no difference if the prosecution were to say that the hard discs are either not relied upon or are being referred to only for the purposes of compliance with Section 65(B) of the EA. By conveniently not producing the hard discs at this stage before the Court, which in any event the prosecution was bound to do in terms of Section 165 CrPC and by conveniently stating that they were not relying upon the hard discs, the prosecution has denied accused the material that is vital to the accused for a proper defense.

(viii) It is submitted that the learned Special Judge was in error in holding that the CDs supplied to the accused had to be treated as the original documents themselves. This was belied by what the CBI has explained in the charge sheet to the effect that these CDs have been copied from the hard disc. Even if these copies have been certified by the APFSL, that was of rebuttable authenticity and the accused could not be expected to rebut it without access to the original recordings of those conversations as contained in the hard discs.

(ix) It is submitted that mere playing all the relevant calls relied upon by the CBI from the hard disc would not suffice as the accused would still not have access to the other conversations involving them contained in the hard disc.

(x) Illegally collected evidence, in the form of telephonic conversations intercepted without following the mandatory requirement of the Indian Telegraph Act and the Rules made there under ought not to be permitted to be relied upon by the prosecution

(xi) Finally, it was urged that even where the prosecution withholds a certain document from the accused at the pre-charge stage on the ground that it does not propose to rely upon such document, the trial court or even this Court in exercise of its inherent powers can direct the prosecution to provide to the accused a copy thereof in recognition of the right of the accused to a proper and effective opportunity of being heard even at the stage of charge.

6.3 The submissions on behalf of the CBI were as follows:

(a) There is a distinction between a device and an electronic record. The had is only an electronic device for storing information and is not a document and hence it is shown in the list of articles and not in the list of documents accompanying the chargesheet.

(b) The provision of Section 65(B) EA has been followed by the CBI in letter and spirit in this case. Therefore, once the conditions in Section 65B(2) have been satisfied then the CDs containing the relevant telephone conversations, duly certified by the APFSL, would be deemed to be a document under Section 65B(1) EA. It is admissible evidence without requirement of proof of production of the original computer output.

(c) It is not open, to the accused to ask for the production of the original computer output or the hard disc at the stage of the trial, and therefore, even less can they do so at the pre-charge stage of furnishing copies of documents.

(d) The reference to hard discs in the chargesheet was only to explain the process of making copies of the relevant calls and it was shown in the list of materials only for the purposes of proving to the court during the trial that the conditions contemplated under Section 65B(1) EA were duly complied with.

(e) The prosecution is therefore not obliged, in terms of Section 207(v) CrPC read with Section 173(5)(a) thereof, to supply the mirror image of the HDs as demanded by the accused. In any event a mirror image of the hard disc which contains calls pertaining to other cases as well is not only not contemplated under Section 207(v) CrPC but would also prejudice the right to privacy of other persons not connected with the cases.

(f) The accused would have the right to cross-examine the witnesses of the APFSL regarding the discrepancies concerning the relevant calls including call duration and time and therefore would not be prejudiced if the hard disc is not produced at this stage.

(g) The prosecution can validly determine what is relevant for the case amidst the large number of documents gathered during investigation and choose to rely upon only such documents for proving its case. In fact, the prosecution risks not relying upon any other documents for bringing home the charge. It is not as if the telephone calls are the only piece of evidence relied upon by the prosecution. The court will have to go only by what the prosecution says it relies upon at the stage of framing charges. This Court cannot itself determine what the prosecution ought to rely upon. Referring to State of Orissa v. Debendra Nath Padhi it is submitted that the accused has no right to obtain copies of documents not relied upon by the prosecution.

(h) Even if the prosecution was to bring on record any other document which it proposes to rely upon at a subsequent stage, it can only be done in accordance with the procedure contemplated in the CrPC. At that stage the accused will have full opportunity of knowing in advance what is proposed to be relied upon and can ask for access to those documents as well.

(i) Relying upon the DPP v. Mckewon [1997] All.E.R. 737 and State v. Navjot Sandhu it is submitted that the stage for explaining the discrepancies concerning the call information as provided by the telephone companies and that certified by the APFSL is at the trial and not at the pre- charge stage. The question of legality and illegality of the evidence gathered can be examined also only at the trial and the stage of framing of charges is not appropriate for that purpose.

(j) The scope of the power of the High Court under Section 482 CrPC does not cover the examination of the admissibility of the evidence relied upon by the prosecution at the pre-charge stage.

Questions for determination

7. In the above background, and in light of submissions of counsel for the parties, the questions that arise for determination in these petitions are:

(i) Are the HDs on which the intercepted telephone conversations have been recorded, ‘documents’ within the meaning of Section 173(5)(a) read with Section 207(v) CrPC

(ii) Can the prosecution decide which of the documents gathered by it during investigation are ‘relevant’ and therefore choose to ‘rely upon’ and furnish to the accused only copies of such documents under Section 207(v) CrPC or is the prosecution obliged to furnish copies of all documents gathered by it during investigation’

(iii) Even where the prosecution states that it is relying upon only some of the documents gathered by it during investigation, can the trial Court or this Court direct that a copy of (or inspection of) a certain document should nevertheless be given to an accused in recognition of the right of the accused to a proper and effective opportunity of being heard even at the stage of charge’

(iv) Does the denial to the accused at the pre-charge stage of copies of all documents gathered by the prosecution during investigation tantamount to a violation of the fundamental right to a fair trial under Article 21 of the Constitution’

(v) Is it sufficient compliance with Section 207(v) CrPC for the prosecution in the instant case to furnish copies of the CDs containing the relevant conversations or must it give to the accused copies of or at least an inspection of the original of those conversations as recorded in the HDs’ In other words, if the answer to question (i) is in the affirmative, relevant to the cases on hand, to what extent can the accused demand to be furnished with copies of or inspection of the HDs and in what form Issue (i): Are the Hard Discs documents 8.1 In order to appreciate why the question whether, in the instant cases, four hard discs are documents and of which copies can be demanded by the accused it is necessary to recapitulate the statutory provisions that mandate supply to the accused by the prosecution of the copies of those documents forwarded to the court along with the charge sheet which it proposes to rely upon as well as of those documents already sent to the court during investigation. The relevant provisions are Section 173(5)(a) and Section 207 CrPC, which read thus:

173. Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(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.

(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 subject-matter 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 Sub-section (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’ Sub-section (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)

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 Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (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 Sub-section (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.

8.2 The scheme of the above two Sections indicates that the Legislature has intended to differentiate between documents forwarded to a court by the police along with the charge sheet or sent to it earlier during the course of investigation on the one hand and the statements of prospective witnesses recorded by the police during investigation under Section 161 CrPC, copies of which are also forwarded to the Court along with the charge sheet, on the other. This is plain from the language of Section 173(5)(a) when compared with that of Section 173(5)(b) read with Section 173(6) and the first and second provisos to Section 207(v) CrPC. For instance, the reference in Section 173(6) to ‘any such statement’ is to the statement of witnesses referred to in Section 173(5)(b) CrPC, i.e statements recorded of prospective witnesses under Section 161 CrPC. In relation to these statements the police office has a discretion under Section 173(6) CrPC to withhold a part thereof if he forms an opinion that it is inexpedient in public interest to do so and inform the Magistrate accordingly. Further, the first proviso to Section 207(v) gives a discretion to the Magistrate to provide to the accused even those statements which ‘the Magistrate thinks appropriate’ shall be furnished.

8.3 This is in contrast to the position regarding documents. Section 173(5)(a) CrPC refers to documents ‘on which the prosecution proposes to rely’ other than ‘those already sent to the Magistrate during the investigation’. These documents are to be forwarded to the Magistrate along with report. Therefore at the stage when the supply of documents has to be made in terms of Section 207(v) CrPC what the Magistrate has with him are those documents which have already been sent to the Magistrate during the course of investigation and those documents that are forwarded by the police officer along with the charge sheet. Under Section 207(v), the Magistrate has no discretion in the matter of not supplying such documents. The only limited discretion that the Magistrate has in terms of the second proviso to Section 207(v) CrPC is if the documents are so voluminous he can direct that the accused will be permitted only an inspection of the documents.

8.4. Since considerable importance is attached, on a reading of the aforementioned two provisions of the CrPC, to the supply to the accused of all the ‘documents’ proposed to be relied upon by the prosecution, the question that arises is whether the HDs are documents of which copies can be asked for by the accused. If the HDs are not documents at all and only storage devices as contended by the CBI, then the further question whether they are being relied upon by the CBI and whether copies thereof therefore need to be supplied to the accused will not arise.

8.5 The meaning of the word ‘document’ used in Section 173(5)(a) as well as Section 207(v) has to be appreciated in the present case in the context of the nature of document the copy of which is being sought. Here we are concerned with digital copies, in the form of voice executable. WAV (sound format) files, of the intercepted telephone conversations which were directly recorded on to an electronic device viz., the hard disc.

8.6 This can be better understood by referring to the meaning of the words ‘document’ and ‘evidence’ occurring in Section 3 of the EA. The said definitions read as under:

3 – Interpretation clause. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:

“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.

“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.

Section 3 EA states that the expression ‘electronic record’ has the same meaning as attributed to it in the IT Act. Section 2(t) of the IT Act defines ‘electronic record’ to mean:

(t) “electronic record’` means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

The word ‘data’ has been defined in Section 2(o) IT Act to mean:

(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 8.7 A collective reading of the above definitions shows that an electronic record is not confined to data alone but it also means the record or data generated received or sent in an electronic form. The word ‘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 initially in the memory of computer.’ 8.8 The word ‘data’ therefore includes not only the active memory of the computer, in this case the hard disc, but even the subcutaneous memory. Indeed it was submitted by learned Counsel for CBI that there are six levels of memory in the hard discs and therefore an information which was written and then rewritten upon more than 5 times could still be retrieved from the subcutaneous memory of the hard disc. Even if there is a doubt whether that entire information can be reconstructed, certainly the information to the effect that the memory in the hard disc has been written and rewritten upon for over six times would be available. It is possible to analyze a hard disc with the help of a software programme, to find out on what date the information was first written with the exact time of such change. It is possible to retrieve such information in respect of each of the occasions when such information is removed and reinserted or changed on the hard disc.

8.9 While there can be no doubt that a hard disc is an electronic device used for storing information, once a blank hard disc is written upon it is subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any purpose will contain some information and will therefore be an electronic record. This is of course peculiar to electronic devices like hard discs.

8.10 Therefore, when Section 65B EA talks of an electronic record produced by a computer (referred to as the computer output) it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. There are two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software programme. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image.

8.11. The conclusions that can be drawn from the above discussion are:

(a) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer;

(b) Once the hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose;

(c) Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not at present contain any accessible information

(d) In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.

(e) Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, there can be no doubt that an electronic record is a document.

(f) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics.

(g) In the instant cases, for the purposes of Section 173(5)(a) read with Section 207(v) CrPC, not only would the CDs containing the relevant intercepted telephone conversations as copied from the HDs be considered to be electronic record and therefore documents but the HDs themselves would be electronic records and therefore documents.

Question (i) is answered accordingly.

Questions (ii) and (iii): Discretion of the prosecution to decide what document it proposes to rely upon and powers of the Court 9.1 We are in present cases at a stage prior to the stage of framing of charges. At this pre-charge stage the accused are demanding to be supplied copies of documents in the form of four hard discs. According to them these are documents that have been gathered by the prosecution during investigation and sine they have been referred to extensively in the charge sheet they cannot be stated to be not relied upon by the prosecution for the purposes of Section 207(v) CrPC read with Section 173(5)(a) thereof.

9.2. The phrase ‘proposes to rely upon’ in Section 173(5)(a) CrPC indicates something that has to be done in the future i.e. at the stage of pressing the charges and thereafter. Therefore ideally in the charge sheet the prosecution would normally indicate the documents which it proposes to rely upon. The controversy in the present cases stems from the difference in the statements made or omitted to be made by the CBI in the charge sheets filed concerning the documents it proposes to rely upon.

9.3 In the charge sheet filed in the School case it is stated in para 44 as under:

List of witnesses and documents/ articles relied upon by the prosecution are enclosed herewith. Additional list of witnesses and documents will be furnished, if required in due course.

Annexure A to this charge sheet is the entire sequence of movement of the Model School file linking it to the relevant telephonic conversations. Annexure B is the transcript of the relevant telephonic conversations. Following this is the list of documents which lists out 59 documents with the note at the end which states ‘further list of documents will be submitted, if required.’ Following this is a list of witnesses which contains 70 names with a note at the end which states ‘further list of witnesses will be submitted, if required.’ 9.4 In the DLF case para 38 of the charge sheet reads as follows:

38. That the lists of witnesses, documents and material objects relied upon by the prosecution are enclosed herewith as per Annexures-I, II and III. Additional lists of witnesses, documents and material objects will be furnished, if required, in due course.

Enclosed with the charge sheet are the transcriptions of telephonic conversations as Annexure A, the sanctions for prosecution of the public servants, A1 to A3, the list of witnesses as per Annexure I, the list of documents in Annexure II which contains description of 126 documents and the list of material objects in Annexure III which lists 11 items. It is significant that these material objects do not include the HDs or the CDs whereas the list of documents includes the call information reports and call details of the relevant telephone numbers relevant to the case.

9.5 In the Lift Case the charge sheet encloses a list of witnesses which lists 91 witnesses, a list of documents which lists 104 documents, a list of articles which list so 5 articles. The charge sheet does not specifically state that the CBI is relying upon is the list of documents appended but since this has been forwarded as such with the charge sheet, it must be presumed that it is proposed to be relied upon by the prosecution. In any event the charge sheet extensively refers to the conversations and the documents.

9.6 In each of the above three charge sheets, the CBI has not stated that it is proposing to rely upon the hard discs. However, it has also not said that it is not relying on them. The situation gets more complicated in the chargesheet filed in the Shamit Mukherjee case. There, unlike in the DLF case, there is no specific statement by the CBI as to what it is relying upon. Enclosed with the charge sheet is a list of witnesses containing names of 90 witnesses, with a note in the end stating ‘additional list of witnesses if any will be submitted in due course of time.’ Then we have a list of documents which lists out 105 documents with a similar note in the end stating ‘additional list of documents, if any, will be submitted in due course of time. Then we have a list of articles which sets out 15 articles and contains a note in the end stating ‘additional list of articles if any, will be submitted in due course of time. In this list of articles serial No. 1 to 7 detail the 19 CDs referred to earlier. Serial No. 8 to 11 mentions the 4 hard discs. Sl Nos. 12 to 15 refer to the phones used in the conversations. Following this is Annexure 1 which lists out details of 100 short-listed calls from various CDs.

9.7 Learned Counsel appearing for the accused in the Shameet Mukherjee case urged that the prosecution having itself appended to the charge sheet a list of materials including the 4 hard discs and not having stated in the charge sheet that it was not relying on those materials, cannot now be heard to say that it will not supply to the accused all that is mentioned in the charge sheet. On the contrary, it is submitted by learned Counsel for the CBI that it has annexed to the chargesheet a list of 100 relevant calls and obviously the CBI proposes to rely upon only those 100 relevant calls.

9.8 The question that arises is whether the prosecution can itself decide what it wants to rely upon among the documents it has gathered during investigation and leave out documents which may or may not help the accused in the defense of their case’ 9.9 A reading of Sections 173(5)(a) and Section 207(v) CrPC indicates that there is very little discretion left with the court to substitute its opinion as to what the prosecution should be relying upon for proving its case. Where the prosecution categorically sates in the charge sheet that it is relying on only certain documents and not others, it is not possible for the court to overlook that and insist that the prosecution should also rely upon some other document that it has gathered and therefore should provide the accused with a copy thereof. It does appear that in the matter of documents, the Court does not have the discretion of the type urged by the counsel for the petitioners.

9.10 There are also other good reasons why the trial courts should not be asked to undertake the task of requiring copies all documents gathered by the during investigation to be provided to the accused notwithstanding the fact that the prosecution says that it is relying only upon some of them for the purposes of the case. There are limited powers of the criminal courts circumscribed by the CrPC. To expect a judge to sit in judgment over what the prosecution considers to be documents worth relying upon even at the pre-charge stage of is to require the trial court to perform a task it is plainly not expected to perform upon a reading of the various provisions of the CrPC. The CrPC also envisages that at different stages of the progress of the criminal proceedings, the trial court is expected to get increasingly involved. For instance, the degree of scrutiny of materials at the stage of cognizance will of course not be as strict as at the stage of pre-charge and charge and would increase at the stage of framing of charge. There are provisions to take care of contingencies when in his defense the accused wants to summon documents or witnesses. There is also Section 91 CrPC. However, for the purposes of the present case, it is sufficient to observe that at the pre-charge stage the trial court is not expected to insist that copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon.

9.11 Where of course the prosecution is silent in the chargesheet about what it is relying upon, then two courses are available to the court to follow. One is to proceed on the basis that whatever document is forwarded with the chargesheet is in fact proposed to be relied upon by the prosecution. For instance, in the Lift Case, a list of documents is attached; the court at the pre-charge stage has to proceed on the basis that those are the documents that are proposed to be relied upon by the prosecution. Where the accused insists that some other document apart from what is stated in the list of documents is being relied upon by the prosecution as is evident from a reading of the charge sheet, the court can examine such submission and if it is satisfied that the charge sheet does in fact indicate that some other document is also being relied upon, then it can require the prosecution to furnish the accused a copy of such document as well. As will be seen hereafter, in the Shameet Mukherjee case, in view of what is stated in the chargesheet, it appears to this Court that the prosecution is relying upon conversations other than the 100 relevant conversations it has mentioned in the list appended to it.

9.12 The position may be different when it comes to statement of witnesses as already noticed hereinbefore. There Section 173(5)(b) read with Section 173(6) CrPC and the first proviso to Section 207(v) CrPC indicates that the court has some element of discretion on what it wants the accused to be furnished even at the pre-charge stage. That is why the number of decisions relied upon by the petitioners do not have much relevance for the purposes of the present case.

9.13 In reply filed in one of these petitions i.e. Crl.M.C. 6476 of 2005 the stand taken by the CBI in relation to its reliance upon the hard discs is two- fold. In para 7 it is stated that ‘the hard discs are relied upon document in the sense that they will be proved in terms of Section 65A and 65B of the EA and, therefore, what is tendered in the trial court would be documents in the nature of compact disc and other related media/printout which would be deemed as original in terms of those Sections’. It is stated that the original system have already been certified for the purity and there is no legal requirement for their production in the trial. It is then stated that in para 12 ‘the said hard discs would be produced by the relevant witnesses at the time of cross- examination for the limited purpose of satisfying the Court in respect of duration of relied upon phone calls in terms of the judgment of the Supreme Court in State v. Navjot Sandhu . This much is therefore clear. Even for a limited purpose the CBI says that it is relying on the HDs. The question is to what extent it is.

9.14 There are two issues that arise in this context. In the first place whether the CDs which have recorded the relevant telephone conversations in each case has to be considered to be the original documents and therefore does not require to be proved in terms of Section 65B(1) by producing the original recording made in the HDs as long as the CBI satisfies the Court that the requirement of Section 65B(2) have been complied with. The second is whether it is open to the CBI to contend that only certain calls of the total intercepted ones are ‘relevant’ are therefore being relied upon; and that since CDs containing those calls have been provided to the accused, there is no obligation to provide mirror copies of the entire hard disc or even provide an inspection thereof either to the accused or to the Court.

9.15 In order to test this submission of the CBI a reference has necessarily to be made to Section 65B EA which 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 or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in Sub-section (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 Sub-section (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 the 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 Sub-section (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 sub-section 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) information 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 there from by calculation, comparison or any other process.] 9.16 A perusal of the title to Section 65B EA which has been introduced by an Amendment made in 2000 simultaneous with the enactment of the IT Act with effect from 17th October, 2000 indicates that it concerns ‘admissibility of the electronic records’ at the stage of the trial when the question arises whether a certain electronic record is admissible in evidence or not. Section 65B(1) states that if any information contained in an electronic record produced from a computer (known as computer output) has been copied on to a optical or magnetic media, then such electronic record that has been copied ‘shall be deemed to be also a document’ subject to conditions set out in Section 65B(2) being satisfied. Both in relation to the information as well as the computer in question such document ‘shall be admissible in any proceedings when 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.’ 9.17 The conditions specified in Section 65(B)(2) are that the computer output containing the information should have been produced by the computer during the period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period by the person having lawful control over the use of the computer. It must also be shown that during the said period the information of the kind contained in electronic record or of the kind from which the information contained is derived was ‘regularly fed into the computer in the ordinary course of the said activity’. A third requirement is that during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time that break did not affect either the record or the accuracy of its contents. The fourth requirement is that the information contained in the record should be a reproduction or derived from the information fed into the computer in the ordinary course of the said activity.

9.18 Under Section 65B(4) the certificate which identifies the electronic record containing the statement and describes the manner in which it was produced giving the particulars of the device involved in the production of that record and deals with the conditions mentioned in Section 65(B)(2) and is signed by a person occupying a responsible official position in relation to the operation of the relevant device ‘shall be evidence of any matter stated in the certificate.’ 9.19 Turning to the case on hand, it will be useful to recall the modus operandi adopted by the CBI, which is common to the four cases as explained in the chargesheets themselves. For instance, it is stated in the chargesheet filed in the DLF case in para 5 that:

as per the procedure of electronic computerised recording of telephone calls, the orders of the competent authority were conveyed to the concerned telephone company/companies who in turn provided parallel connectivity or leased lines to the CBI. These leased lines did not have any numbers, but were identified by pairs and colours of wires. These leased lines were connected directly with the identified hard disc of a computer through a voice logger. Every incoming and outgoing call of the monitored telephone numbers were automatically recorded on a WAV (sound format) file in the hard discs of the computers giving complete details viz., call time, call duration, calling party’s telephone number and called party telephone number through window operating system, voice logger drivers and voice executable WAV (sound format) files. The conversations recorded in these computer files were heard and two Call Information Reports containing 49 and 13 identified calls of conversations between accused persons relevant to this case were prepared and transferred into three compact discs and the same have been taken on record for investigation in this case. The compact discs so prepared are true replicas of recording done in the hard discs of the computer system through electro magnetic media. The purity of the process of recording has been certified by the Andhra Pradhesh Forensic Science Laboratory (APFSL), Hyderabad after examining the hard discs and compact discs vide their expert opinion NO.COM/12/2003 dated 22.07.2003. Shri N.S. Virk, Superintendent of Police, Special Unit, CBI has given a certificate as required under Section 65B of the Indian Evidence Act, 1872 for use of electronically generated information as admissible evidence.

9.20 In other words, the intercepted telephone conversations on the tapped telephones which were under electronic surveillance were being directly recorded through parallel leased lines in four hard discs (HDs) kept at the conference room of the SU of CBI. Each call had a separate file and was identifiable as such since it was in a voice executable WAV (sound format) format file. For convenience, the four computer systems in which the HDs were placed marked A, B, D and E for identification. The certificate issued by Shri Navdeep Singh Virk, Superintendent of Police, SU, CBI dated 7th June 2003 sets out the description of the four computer systems in which the HDs were located and explains further how the calls were recorded, copies made and of the relevant calls on audio CDs and the HDs then being taken over by the investigation unit of the CBI. The relevant portion of the said certificate reads as under:

1. That the information contained in the hard disks of the above mentioned 4 computer systems was regularly recorded into them in the ordinary course of the activities of my unit.

2. That during the period in question the above mentioned 4 computer systems were operating properly and there have been no such operational problems so as to affect the accuracy of the electronic record.

3. That the computer hardware and software used in the above said computer systems have built in security mechanisms.

4. The call content and call related information of the various telephone numbers monitored by this unit was recorded on the hard disks of the said four systems. Contents of the recorded telephone calls, which were given to the Investigating Officers from time to time, in the form of audio compact discs, are an output of the said computer systems.

5. That these above said computer systems are in working condition, till today, i.e. 7th June, 2003 when they are taken over by Sh M K Bhatt, Additional SP ACU (IX), Investigating Officer of RC 3A 2003-ACU X, AC-III, CBI Delhi for the purpose of investigation.

9.21 In the Shameet Mukherjee case, the letter dated 8th June 2003 sent by the CBI at the time of forwarding the 4 HDs and the 19 CDs to the APFSL for certification, indicates that the opinion of the APFSL was sought on two aspects. The first was for an ‘examination of the above hard discs of CPUs marked A,B,D and E in order to ascertain the continuity of recordings of the telephone numbers under surveillance in each of them, and to check for any kind of overwriting, interpolation or any other kind of editing/tampering and issuing of certification to this effect for each of the hard discs in the above CPUs.’ The second was to opine whether the copies of the calls transferred on the CDs were true copies of their original recordings on the hard discs. It was stated in para 4 (A) of the letter that:

4. Your expert opinion is solicited on the following:

A) Hard Disc of CPU marked A purported to contain the original recording of the following numbers for the 9810258734 from 14.1.2003 to 20.3.2003 20050871 from 14.1.2003 to 05.02.2003 24311053 from 01.02.2003 to 25.02.2003 9.22 The letter then sought the opinion of the APFSL with reference to the particular intercepted conversations on identified telephone numbers, between specified dates, the original recording of which was purportedly contained in the hard disc.

9.23 The reply dated 22nd July 2003 of the APFSL indicates that the hardware had been physically examined and that there was ‘examination of storage media using DIBS forensic work station, which is a computer forensic tool, comprises of both hardware and analyzer software an unauthorized tool for Scotland yard Police Federal Bureau of Investigation and other premier investigation agencies.’ The opinion in regard to the 5 CPUs, one IDE hard disc and the 19 CDs was as under: ‘Item nos. 1 to 7 are analyzed and found that all are in working condition. Item No. 1 to 4 are I.D.E. hard disks containing windows operating system, voice Item No. 1 and 2 have logger drivers, media player programme, voice logging executable files, WAV file conversation executable file which can be used for logging/recording the telephonic conversation.’ 9.24 Thereafter opinion is given on the particular audio files of conversations were verified and a report given thereon. For instance, with regard to ‘audio files recorded with extension VTM from 21.12.2002 to 24.05.2003 in different partitions’, the opinion was as follows:

Each audio file is verified using forensic work station with respect to creation date/time, update/time corresponding to the details provided in the above reference letter in the form of the hard copy under recorded calls information report containing the date and time, duration of the calls from different telephones logged on to the computer through different voice logging cannels and found that the time and dates and duration the calls are tallying with the audio files contained in the hard disk.

9.25 A perusal of the entire procedure outlined hereinabove indicates that the purpose of sending the hard discs to the APFSL was two fold. The prosecution has sent to the APFSL the hard discs not for the purposes of certifying all that was contained in the hard disc. The APFSL was to certify on a physical examination that the hard discs were in a proper working condition in terms of Section 65B(2)(c) EA read with Section 65B(4) thereof. Secondly APFSL was to certify whether the relevant intercepted telephone calls copied on the CDs are in fact tallying with the original recordings of those calls in the hard disc. The scope of the examination by the APFSL was therefore to find out whether the hard disc was properly functioning and whether in respect of the calls copied on to the CDs the corresponding files in the HDs pertaining to those calls have been overwritten modified interpolated in any manner. Only to this extent can it be said that the HDs are being relied upon by the prosecution.

9.26 While the certification by the APFSL may enable the CBI to avoid producing the original recordings of the conversations in the HDs for the purposes of proof it cannot obviate the statutory requirement under Section 207(v) of providing to the accused access to the original recording of the relevant intercepted telephone conversation as a relied upon document. The stage of proof would be at the trial. At the present pre-charge stage, the accused has to be given access to the HDs as a relied upon document to the limited extent as explained hereinbefore.

9.27 It was then argued that in a statement recorded under Section 161 CrPC, Inspector M.C. Kashyap adverts to the fact that he listened to all the conversations before deciding on the relevant calls. It is submitted that this statement has in turn referred to all the calls in the hard discs. This Court is unable to agree. One thing is to say is that the evidence was collected of a large number of calls but that does not mean that the prosecution would be relying upon all those calls. A mere reference to these calls which were listened to in the course of the investigation would not make them automatically relied upon. The prosecution has to therefore indicate to the court what it proposes to rely upon. It cannot be said that in determining what it proposes to rely upon the prosecution is indulging in pick and choose. The very scheme of the Section 173(5) requires the prosecution to tell the court that it has relied upon this or that document. It is not possible to imagine that the learned trial court has itself to perform the exercise of examining the entire document collected by the prosecution and then determine what the prosecution shall rely upon. It is inconceivable and impractical to proceed on the basis that all the material gathered during investigation is to be relied upon by the prosecution. It is not possible to accede to the contention of the petitioners that each and every document that the prosecution gathers should be deemed to be relied upon. That is contrary to the scheme of the CrPC.

9.28 There is yet another aspect in the Shameet Mukherjee case concerning the relied upon calls that requires to be dealt with. The case of the prosecution is that it is relying upon only 100 relevant calls and therefore it is sufficient if the accused are furnished the CDs of those 100 calls at the stage of pre- charge. The explanation for the said 100 short-listed calls is contained in para 21 of the charge sheet which reads as under:

21. That as per the procedure followed by the Special Unit of CBI in computerized telephonic surveillance, the orders of the competent authority are conveyed to the concerned telephone company who in turn provide a parallel connectivity to CBI. Every incoming and outgoing call of each monitored telephone number is automatically recorded in the hard disc of the computer giving the complete details of the monitored number, the call time and duration.

The conversations so recorded were heard and the relevant calls between accused persons, were copied onto 19 Compact Discs and taken on record for investigation. The Compact Discs so prepared are a true copy of the recordings in the hard discs of the relevant computer system. The integrity of the process of recording has been certified by the Andhra Pradesh Forensic Science Laboratory (APFSL), Hyderabad after examining the hard discs and the 19 Compact Discs vide their Expert Opinion No. COM/10/2003 dated 7.7.2003. The APFSL opined that each audio file in each hard disc was verified by their experts by using a standardized forensic work station with the parameters of creation date/time and the date/time corresponding to the details provided to them in the form the hard copy and found that the time, date and duration were tallying with the audio files contained in the four hard discs. The experts of APFSL have also opined that the 100 shortlisted telephonic conversations relevant to this case as listed vide Annexure-I and other calls, recorded electronically on computer, were on the relevant hard discs of the relevant computers of the Special Unit of CBI. Shri N.S. Virk, Superintendent of Police, Special Unit, CBI, New Delhi has given a Certificate under Section 65B of the Indian Evidence Act, 1892 for use of electronically generated records as admissible evidence.

9.29 It is clear from the reading of the above paragraph that the CBI itself contends that 768 calls contained in 19 CDs are ‘relevant’ for the case. The CBI states that these 768 calls were further screened to arrive at the further 100 relevant calls. On a reading of the above paragraph of the charge sheet it is not possible to conclude that the CBI was not proposing to rely upon the 768 calls contained in the 19 CDs. In fact it sent these 19 CDs for certification to the APFSL. This Court, therefore, comes to the conclusion that as far as the charge sheet in Shameet Mukherjee case is concerned, notwithstanding the fact that the CBI has not included the 768 calls in the 19 CDs in the list of documents appended to the charge sheet, the court must proceed on the basis that the CBI proposes to rely upon these 19 CDs containing 768 calls as well. The consequence is that in terms of Section 207(v) read with Section 173(5)(a) CrPC each of the accused in the Shameet Mukherjee case is entitled to be provided with copies of the 19 CDs containing the 768 calls.

9.30 To summarise the conclusions on questions (ii) and (iii):

(a) In terms of Sections 207(v) read with Section 173(5)(a) CrPC, the prosecution is obliged to furnish to the accused copies of only such documents that it proposes to rely upon as indicated in the charge sheet or of those already sent to the court during investigation;

(b) The trial court or this Court cannot, at the pre-charge stage, direct the prosecution to furnish copies of documents other than that which it proposes to rely upon or which have already been sent to the court during investigation;

(c) At the pre-charge stage the trial court is not expected to insist that copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon.

(d) The prosecution is bound to indicate in the charge sheet submitted to the Court the documents it is proposing to rely upon for persuading the court to frame a charge against the accused. If it fails to do so, the court will proceed on the basis that whatever document is forwarded with the chargesheet is in fact proposed to be relied upon by the prosecution. Where the accused insists that some other document apart from what is stated in the list of documents should be taken as being relied upon by the prosecution, as is evident from a reading of the charge sheet, the court can examine such submission and if it is satisfied that the charge sheet does in fact indicate that some other document is also proposed to be relied upon by the prosecution, then it can require the prosecution to furnish the accused a copy of such document as well.

(e) In the instant case, the scope of the examination by the APFSL was to find out whether the hard discs were properly functioning and whether in the calls copied on to the CDs are true copies when compared with the corresponding files in the HDs pertaining to those calls. Only to this extent can it be said that the HDs are being relied upon by the prosecution.

(f) The certification in terms of Section 65B(4) EA Act does not obviate the statutory requirement under Section 207(v) of providing to the accused access to the original recording of the relevant intercepted telephone conversation as a relied upon document.

(g) As far as the Shameet Mukherjee case is concerned, in view of what is stated in para 21 of the charge sheet in that case, the court has to proceed on the basis that the CBI proposes to rely upon the 19 CDs containing 768 calls in addition to the document listed by it in the annexure to the charge sheet. Therefore each of the accused in the Shameet Mukherjee case is entitled to be provided with copies of the 19 CDs containing the 768 calls.

Question (iv): Is the right to a fair trial violated’ 10.1 Extensive arguments were addressed on the basis of Article 21 of the Constitution. It was contended that the denial of a copy of each and every document gathered by the prosecution during the investigation to the accused at the pre-charge stage would violate the fundamental right of the accused to a fair trial as enshrined in Articles 20, 21 and 22 of the Constitution. It was also contended that short of a challenge to the constitutional validity of the provisions, the words ‘all documents’on which the prosecution proposes to rely’.’ occurring in Section 173(5)(a) CrPC should be read down to mean ‘all documents’.which have been gathered by the prosecution during investigation’.’ It was urged that the principle of purposive construction must be adopted to advance the right to a fair trial which is the running thread through the entire CrPC.

10.2 There is no challenge in these petitions to the constitutional validity of either Section 173(5)(a) or Section 207(v) CrPC which are exhaustive of what can be provided to an accused as documents at the pre-charge stage. As long as the said provisions of the CrPC are strictly complied with, and they should be insisted upon being strictly followed, there can be no quarrel that they encapsulate and operationalise the procedural due process requirements of the provisions of the Constitution. Therefore, if the prosecution is able to show that it has complied with the said provisions at the pre-charge stage then the accused cannot be heard to say that the denial of a document that falls outside the scope of those provisions would still constitute a violation of the fundamental right to a fair trial.

10.3 Reliance was placed on the judgment of the Supreme Court in Hindustan Construction Company Ltd. v. Union of India in support of the proposition that the copy of a document must be full and accurate reproduction of the original. This was in an arbitration case and really does not advance the case of the petitioners. Reliance was placed on the judgment in Union of India v. Purnanda Biswas where it was said that the document favoring the accused not annexed to the charge sheet would vitiate the trial. It requires to be noticed that the said decision was not dealing with the right of the accused at the pre-charge stage and therefore the question of scope of Section 207(v) Cr PC did not arise for consideration. For the same reason the decisions under the law of preventive detention, viz. Khudi Ram v. State of West Bengal and M. Ahmed Kutty v. Union of India can have no application in the instant case. The question involved in the decision in Ashok Kumar Aggarwal v. CBI 2007 (4) JCC 2429 concerns the statements of witnesses under Section 161 and whether that was relevant for the purposes of grant of sanction. Likewise the decision in Ashok Kumar Aggarwal v. CBI 2007 (4) JCC 2557 concerning the relevance of a statement made under Section 164 CrPC for the grant of pardon to the approver is also of no relevance here.

10.4 In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick AIR 1981 SCC 917 the Supreme Court was considering the scope of Section 14 of the Official Secrets Act, 1923 and held that the said provision cannot take away the right of the accused to get copies of statement recorded of witnesses or documents obtained by the police during investigation. The question whether each and every document collected by the police during investigation should be furnished to the accused at the pre-charge stage or whether it was limited by Section 173(5)(a) read with Section 207(v) CrPC clearly did not arise for consideration there. Reference was then made to State of Uttar Pradesh v. Lakshmi Brahman (1983) 2 SCC 3872 where the Supreme Court observed that the language of Section 207 CrPC was mandatory and the furnishing of copies by the Magistrate to the accused was not an administrative but a judicial function. In any event, the said judgment nowhere states that all documents collected by the prosecution at the stage of investigation should be provided to the accused at the pre-charge stage and that a denial thereof would constitute a violation of the fundamental right to a fair trial. The decision of the Gujarat High Court in Pravin Kumar Lalchand v. State of Gujarat 1982 Cri. L.J. 763 turned on its own facts. There since the enlarged photographs had been examined by the expert for giving the opinion, it was held that the said document cannot be denied to the accused. In the instant case the APFSL has not been asked to certify the entire contents of the 4 HDs but as pointed out earlier have compared the conversations recorded on the CDs with their original recordings in the HDs. Therefore, this case is of no assistance to the petitioners.

10.5 Reliance was also placed on the judgments in Shakuntala v. State , Pravin Kumar Lalchand Shah v. State of Gujarat ( 1982) Cri. L. J. 76, S.J. Chowdhary v. State 1984 Cri. L. J. 864, State of Kerala v. Raghavan 1974 Cri. L. J. 1373, and Shiv Narayan Kachawa v. State of Rajasthan (1985) Cri. L. J. 761 to contend that nothing can prevent the Court from forming an opinion that a certain document is essential for the defense of the accused and no such document can be denied even by the prosecution. After perusing each of these decisions, this Court finds that either the facts there did not deal with the question of supply of documents at the pre-charge stage or even if they did, it did not involve the interpretation of what was proposed to be relied upon by the prosecution as stated in the charge sheets filed in those cases.

10.6 None of the decisions cited by the petitioners support their contention that the denial to the accused at the pre-charge stage of a copy of each and every document gathered during investigation by the prosecution would constitute a violation of the fundamental right of the accused to a fair trial. Question (iv) is answered accordingly.

11.1 Some of the other contentions raised are now taken up for consideration. A reference was made to Sections 74 and 76 of the EA to contend that the hard discs are themselves public documents, access to which cannot be denied. The decision of this Court in Ram Jethmalani v. Director, CBI 1987 Cri. L.J. 570 was relied upon for this purpose. It is noticed that the said case was in the context of the statement recorded by the police under Section 161 CrPC being considered to be a public document. The case was not about documents gathered during investigation, which as explained, stand on a different footing in the context of the two provisions that we are immediately concerned with. The argument that hard disc is a public document which the petitioner has a right to inspect, need not to be gone into in view of the finding of this Court that what is recorded in the hard discs is in fact an electronic record to which the petitioner can insist upon an inspection but limited to the extent that it relates to the calls which the CBI has relied upon for the purposes of the case.

11.2 It was then submitted that under Section 165 CrPC the prosecution was duty bound to submit the documents immediately to the Magistrate which was not done in the instant case for over two years after their seizure. It is also submitted that under Section 457 the seized documents are required to be deposited in the Court, which was not done. It is stated that even now hard discs have been kept in Hyderabad and not in the control of the Court. The contention of the CBI is that the learned Special Judge has been informed that the hard discs are in the custody of APFSL and this satisfies the statutory requirement. Whether in fact the documents evidencing seizures were not produced as part of the chargesheet, or the documents themselves were not produced before the court immediately after seizure, whether evidence was collected illegally and whether that has prejudiced the rights of the accused is a matter that can be examined at a subsequent stage. It would be open to the accused to show how it has been prejudiced by the non-compliance, if any, of these provisions.

11.3 An argument was made about the non-compliance with Rule 419 A and Section 5(2) of the Telegraph Act. Reliance was placed on the judgment in Pooran Mal v. The Director of Inspection (Investigation), New Delhi where it was held that if the evidence is illegally gathered it can still be relied upon by the agency. Counsel for the petitioner submitted that there is an observation in the said decision to the effect that this rule does not apply where the gathering of such evidence is expressly prohibited by law. The question whether the evidence has been gathered contrary to any express or implied provision as mentioned in Pooran Mal, cannot be determined without examination of evidence in that behalf. This necessarily means that this exercise cannot be performed at the pre-charge stage. It is open to the petitioner to raise this point at the appropriate stage.

11.4 An apprehension was expressed by the counsel for the accused that in the impugned order the learned Special Judge has foreclosed their arguments which can be advanced at the stage of trial. This Court would like to clarify that none of the defenses available to the accused during the trial would be foreclosed either by the order of the learned Special Judge or by this order. Of course, the accused will not be permitted to again file the application asking for the same relief which has been declined to them by the impugned order by the learned Special Judge as modified by this order.

11.5 Extensive arguments were made on the basis of the judgment of the Supreme Court in State of Orissa v. Debendra Nath Padhi . The first paragraph of the judgment indicates that the Court was considering a case where accused wanted to produce certain documents even at the stage of framing of charge. That was declined by the Supreme Court. In the present case the accused are not seeking to produce any document and they are seeking copies of the hard discs which have been referred to in the charge sheets by the prosecution. Therefore this Court does not consider it necessary to discuss the decision in Debendra Nath Padhi.

11.6 It was submitted that unless they are given mirror images of the HDs, it will not be possible for the accused to demonstrate that any of the calls relied upon by the prosecution vis-‘-vis an accused has been altered or tampered with in any manner. The stage of questioning whether such documents have been tampered with is certainly not the pre-charge stage. That opportunity will be available to the accused at a subsequent stage.

11.7 An elaborate argument has been made about the scope of Section 239 CrPC which is different from Section 227 CrPC. It is submitted that even at the pre charge stage it is open to the accused to apply to the court to ask for being examined. It is submitted that Section 227 is silent and therefore the right of an accused even at the stage of pre-charge before the Magistrate under Section 239 is wider in terms of the principle of natural justice. It is submitted when a request is made by an accused to access a document such request must be granted by the Court. This Court is unable to accept this submission. There is no application by an accused here seeking to produce a document or asking to be examined at the pre-charge stage. The request by the accused here is for being supplied with copies of documents, which according to them, have been wrongly withheld by the prosecution. Such a request would have to be considered within the scope of Section 207(v) read with Section 173(5)(a) CrPC.

11.8 It was stated that the stage of framing of charge is as important as trial itself and therefore every information that has been gathered by the prosecution has to be provided at this stage itself. It is not possible for this Court to agree with this contention. The stage of framing of charge has been explained to be different from the stage of the trial in various decisions of the Supreme Court. The observations in State of Bihar v. Ramesh Singh , Superintendent and Remembrancer v. Anil Kumar Bhunja and Soma Chakravarty v. State (2007) 4 SCC 274 are relevant.

Question (v): How should the accused be provided access to the Hard Discs’ 12.1 The question then arises whether, for the purposes of compliance with the requirement of Section 207(v) CrPC, the accused petitioners should be given copies of all the conversations stored in voice files in the hard disc or is it enough to give them an inspection thereof. As already noticed, the four hard discs contain information pertaining to calls between persons not connected with the present cases. The accused cannot possibly claim access to this information. Apart from the issue of privacy of such other persons, it is also not warranted under the interpretation placed by this Court on the relevant statutory provisions.

12.2 There are bound to be problems in requiring further certification for providing copies of the original recordings from hard disc itself. Such certification can also be doubted by the accused who might insist on access to the original recording themselves. In fact counsel for the petitioners submitted that the copies of the conversations in the form of sound files transferred to the CDs supplied to them does not contain many of the call parameters which are certified to be present in the hard discs.

12.3 The appropriate approach to be adopted in cases concerning computer database has been discussed in a judgment of the Chancery Division in England in Darby and Co. Ltd. v. Weldon 1991 (2) All.E.R. Ch D 901. There it was held that merely because information was not capable of being visually inspected, it cannot be said that the format in which it is recorded is not a document. It was pointed out that there are difficulties in giving access to inspect information stored in the database of a computer. It was observed that there may be irrelevant or privileged material which should not be provided access to; further it is possible for a party to frustrate the attempted inspection by reprogramming the entire computer in such a manner that information previously retrievable, cannot be retrieved without reprogramming; at the same time the access has to be arranged only after ensuring that the database itself does not get damaged as a result of such access and the interference with the everyday use of the computer is also minimised. It was pointed out that there was a discretion in the court to consider ‘if necessary in the light of expert evidence, what information is or can be made available, or how far it is necessary for there to be inspection of copying of the original document (database) or whether the provision of printouts or hard copies is sufficient, what safeguards should be incorporated to avoid damage to the database.’ 12.4 On a careful consideration of the submissions of the learned Counsel for the petitioners, this Court concludes that it would be appropriate if, consistent with the requirement of Section 207(v) CrPC that the accused petitioners are permitted to listen to the original recordings of the relevant intercepted telephonic conversations relied upon by the prosecution in each of the four cases by having the said original recordings played directly from the hard discs in the presence of the accused or their representatives, their counsel and the learned Judge. At the pre-charge stage, there is no requirement for mirror images of the entire hard discs to be made available to the accused for this purpose. It is made clear however, that this will not foreclose the right of the accused, at the stage of the trial, for the purposes of cross- examining the witnesses of the APFSL to have access to the hard discs.

12.5 This Court directs that for the above purpose the four hard discs, which were sealed and sent to the APFSL, Hyderabad by the CBI for certification of the recorded relevant telephonic conversations, should immediately be brought back to Delhi. Learned Counsel for the CBI informs that as required by the CBI Manual cloned mirror images copies of the HDs have been made by the APFSL and these are also available in Hyderabad. It is,therefore, directed that the cloned copies of the four HDs can be retained at the APFSL, Hyderabad while the sealed hard discs sent to the APFSL should be brought back to Delhi within a period of six days from today and in any event not later than 17th March 2008.

12.6 The four HDs so brought back, will be kept in an aseptic environment in a temperature controlled room in either the Cyber Crime Section of the CBI or any other similar convenient place with prior intimation to the learned Special Judge. This place should be immediately indentified by the CBI, in consultation with the learned Special Judge so that the four HDs when brought back are straightway taken and kept in the said place. It is made clear that hereafter the said four HDs would be in the control and subject to directions issued by the learned Special Judge. Nothing will be done in relation to those four HDs without orders of the Special Judge.

12.7 The learned Special Judge will fix three continuous dates between 18th March and 25th March, 2008 for the playing of the original recorded conversations of the relevant intercepted telephone calls relied upon by the CBI in each of the four cases directly from the HDs in the presence of the accused or their representatives, the counsel for the parties and in the presence of and subject to the directions of the learned Special Judge. The venue will be the very place where the four hard discs are to be kept immediately upon being brought back to New Delhi. Since the duration of these calls are not expected to be very long, the entire process should be ideally completed within a period of two to three days. This entire exercise should be completed on or before 25th March 2008. The parties will be permitted to listen to these conversations as they are played from the HDs and make notes. This will not be stage for advancing arguments on whether the original recording is different from copies furnished to the accused.

12.8 As regards the 19 CDs in the Shameet Mukherjee case, copies thereof of which have been directed to be provided to the accused in that case, it is made clear that the 768 calls on these 19 CDs need not be played from the hard discs at this stage. In other words, there will be no need to provide to the accused access to the entire 768 calls as recorded in the hard disc other than the 100 listed calls which the CBI is relying on. The reason for this is that the accused are will able to listen to the 768 calls from the CDs themselves. If any of those calls are exculpatory of the accused, then obviously the accused would not doubt the authenticity of the recording of such calls and will perhaps to seek rely upon, at an appropriate stage, on the certification of their authenticity by the APFSL. Likewise the CBI will also not question the authenticity of the recording of these 768 calls which have been certified as such by the APFSL. In the unlikely event of the 768 calls (other than the 100 listed calls) containing material that is inculpatory of the accused in the Shameet Mukherjee case, then in any event at the pre-charge stage the CBI would not be permitted to rely on such material. The accused would therefore not be prejudiced by this procedure.

12.9 If the accused in the Shameet Mukherjee case want to refer to any of the 768 calls (other than the 100 listed calls) in the course of their arguments on charge before the learned Special Judge, they can play such calls straight from the CD itself before the learned Special Judge as they have been doing with reference to the calls relied upon by the CBI, copies of which have already been provided to them in CDs.

Conclusions

13. To summarise the conclusions on the various questions:

(i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.

(ii) Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA.

(iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics.

(iv) In the instant cases, for the purposes of Section 207(v) read with Section 173(5)(a) CrPC, not only would the CDs containing the relevant intercepted telephone conversations as copied from the HDs be considered to be electronic record and therefore documents but the HDs themselves would be electronic records and therefore documents.

(v) In terms of Sections 207(v) read with Section 173(5)(a) CrPC, the prosecution is obliged to furnish to the accused copies of only such documents that it proposes to rely upon as indicated in the charge sheet or of those already sent to the court during investigation.

(vi) The trial court or this Court cannot, at the pre-charge stage, direct the prosecution to furnish copies of documents other than that which it proposes to rely upon or which have already been sent to the court during investigation;

(vii) At the pre-charge stage the trial court cannot direct that a copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon.

(viii) The prosecution is bound to indicate in the charge sheet submitted to the Court the documents it is proposing to rely upon for persuading the court to frame a charge against the accused. If it fails to do so, the court will proceed on the basis that whatever document is forwarded with the charge sheet is in fact proposed to be relied upon by the prosecution.

(ix) Where the accused insists that some other document apart from what is stated in the list of documents attached to a charge sheet should be taken as being proposed to be relied upon by the prosecution, and submits that this is evident from a reading of the charge sheet, the trial court will examine such submission and if it is satisfied that the charge sheet does in fact indicate that some other document is also proposed to be relied upon by the prosecution, then it can require the prosecution to furnish the accused a copy of such document as well.

(x) In the instant case, the scope of the examination by the APFSL was to find out whether the hard discs were properly functioning and whether the calls copied on to the CDs are true copies when compared with the corresponding files of original recording of those calls in the four HDs. Only to this extent can it be said that the HDs are being relied upon by the prosecution.

(xi) The certification in terms of Section 65B(4) EA Act does not obviate the statutory requirement under Section 207(v) of providing to the accused access to the original recording of the relevant intercepted telephone conversation as a relied upon document.

(xii) As far as the present cases are concerned, only those portions of the hard disc that relate to the files containing the original recording of the relevant intercepted telephone conversations would be ‘documents’ proposed to be relied upon by the prosecution in terms of Section 207(v) read with Section 173(5)(a) CrPC. Those files would be documents both as regards the file containing the actual conversation so recorded as well as constituting a record of any changes that such file may have been subject to thereafter.

(xiii) Therefore, only to the extent explained in (xii) above, the accused would have a right of inspection of the hard discs since making mirror image copies of the entire HDs is not called for in the circumstances explained in this judgment.

(xiv) As far as the Shameet Mukherjee case is concerned, in view of what is stated in para 21 of the charge sheet in that case, the court has to proceed on the basis that the CBI proposes to rely upon the 19 CDs containing 768 calls in addition to the documents listed by it in the annexure to the charge sheet. Therefore, each of the accused in the Shameet Mukherjee case is entitled to be provided with copies of the 19 CDs containing the 768 calls.

(xv) As long as the statutory requirements of Sections 207(v) read with 173(5)(a) CrPC are strictly complied with, and in the absence of any challenge to their constitutional validity, the failure to furnish to the accused by the prosecution at the pre-charge stage all documents gathered during investigation will not be a violation of the right to a fair trial under Article 21 of the Constitution (xvi) The inspection as indicated in Sub-para (xiii) above will be allowed by playing directly from the HDs the original recording of the relevant intercepted telephonic conversations in the presence of the accused or their authorized representatives, the counsel for the parties, the counsel for CBI and the learned Special Judge on two or three continuous days so that the said exercise is completed on or before March 25th 2008.

Final directions

14. Accordingly, these petitions are disposed of with the following directions:

(i) In the Shameet Mukherjee case, the CBI will provide to each of the accused copies of the 19 CDs which has been mentioned in para 21 of the charge sheet containing the 768 calls within a period of one week from today and in any event not later than 18th March, 2008.

(ii) The four hard discs sent by the CBI after sealing and to the APFSL for the purposes of certification will be immediately brought back and in any event not later than 17th March 2008. The cloned copies of the four hard discs certified as such by the APFSL will be retained by the APFSL in Hyderabad.

(iii) The four HDs so brought back, will be kept in an aseptic environment in a temperature controlled room in either the Cyber Crime Section of the CBI or any other similar convenient place with prior intimation to the learned Special Judge. This place should be immediately identified by the CBI, in consultation with the learned Special Judge so that the four HDs when brought back are straightway taken and kept in the said place.

(iv) It is made clear that hereafter the said four HDs would be in the control and subject to directions issued by the learned Special Judge. Nothing will be done in relation to those four HDs without orders of the Special Judge.

(v) The learned Special Judge will fix three continuous dates between 18th March and 25th March, 2008 for the playing of the original recorded conversations of the relevant intercepted telephone calls relied upon by the CBI in each of the four cases directly from the HDs in the presence of the accused or their representatives, the counsel for the parties and in the presence of and subject to the directions of the learned Special Judge. The venue will be the very place where the four hard discs are to be kept immediately upon being brought back to New Delhi. Since the duration of these calls are not expected to be very long the entire exercise should be completed on or before 25th March 2008.

(v) As regards the 19 CDs containing 768 calls this need not to be played at the stage from the hard disc. There will be no need to provide to the accused access to the entire 768 calls as recorded in the hard disc other than the 100 listed calls which the CBI is relying on. If the accused in the Shameet Mukherjee case want to refer to any of the 768 calls in the course of their arguments on charge before the learned Special Judge, they can play such calls straight from the CD itself before the learned Special Judge.

(vi) The arguments on charge thereafter be positively concluded in all the four cases on or before 30th April, 2008 and orders on charge be passed on or before 31st May, 2008 Each of the learned Counsel will cooperate in this entire exercise.

15. The petitions and the applications stand disposed of.