TMI Blog2012 (12) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2006. The allegation against the appellants, in brief, is that the appellants, who are - allegedly - members of Students Islamic Movement of India (SIMI) - a terrorist organization - had entered into a conspiracy to plant bombs in Mumbai's local trains, and that pursuant to such conspiracy, bombs were actually planted in local trains. The bombs exploded on 11 July 2006 resulting into the death of 187 persons, and causing injuries to more than 800 persons. 2. On this allegation, the appellants are facing charge of offences punishable under sections 302 IPC, 307 IPC, 326 IPC, 436 IPC, 427 IPC, 120B IPC, 120A IPC, 123 IPC, 124 IPC read with section 34 of the IPC, offences punishable under the Indian Explosives Act, and Prevention of Damage to Public Property Act, offences punishable under the Indian Railways Act, offences punishable under the Unlawful Activities (Prevention)Act 1967, and offences punishable under section 3(1)(i), 3(2) and 3(4) of the MCOC Act. 3. The trial is in progress. Charge against the appellants was framed on 6 August 2007. The recording of evidence commenced on 8 December 2007. The prosecution closed its evidence on 4 4. After the appellants had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution. The prosecution had objected to such evidence being brought on record, and the Court had not passed any orders requiring the prosecution to cause production of the relevant records. 9. When the stage of adducing defence evidence arrived, the prayer for calling of the CDRs was renewed. The prosecution objected to such evidence being brought before the Court - even at that stage - mainly on the ground that the application calling for the relevant records was vexatious, and not maintainable. The Investigating Officer Shri S.L. Patil who had been cross-examined, had expressed his inability to produce any such record. The trial court had, on the prayer of the appellants summoned Mr. Rakesh Maria, Head of the Investigating agency i.e., Anti-Terrorism Squad, (ATS) to cause production of the relevant CDRs. In response to the said summons, Mr. Rakesh Maria replied by a communication addressed to the court, that the case was of the year 2006, when he was not connected with the ATS and that, if at all there were any such documents, then it would be only the Investigating Officer of the case, who could have had them. Mr. Rakesh Maria thus expressed his inability to produce any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being adduced before the court. According to him, in view of the provisions of Section 131 of the Evidence Act, the Nodal officer could not be compelled to produce the record which the ATS had right to refuse to produce. The learned Judge, thereupon, directed production of CDRs, only with respect to the mobile telephones held in the name of the accused persons and not the mobiles that were in the names of some other persons. The witnesses then asked for time up to 21.8.2012, for complying with the order. On 21.8.2012, the witnesses i.e. Nodal Officers from Bharti Airtel Limited (Witness no. 69), Tata Tele Services (Maharashtra) Limited (Witness no. 70), BPL / Loop Mobile (Witness no. 72) and MTNL (Witness no. 73), remained present before the court and filed letters to the effect that the relevant CDRs are not available as the data is stored in their systems only for one year. The letter from BPL / Loop Mobile, brought by their Nodal Officer (Witness no. 72), stated that the relevant mobile numbers had not been issued in the name of any of the accused, as per the list given by the court, and hence, the CDRs could not be furnished. 12. The advocates for the appellants / accused d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mobile Service Providers. Therefore, there is almost nothing to discuss with respect to the merits of the said appeal and the need is only to see that appropriate directions are given to the trial court with respect to bringing the evidence in question on record. 17. However, with respect to the prayers in the Criminal Appeal No. 973 of 2012, the matter is quite different. The matter appeared on board on various dates and finally, the learned Advocate General submitted that the CDRs as are being summoned, are not available at all with the Investigating Agency. He submitted that therefore, there would be no question of production of such CDRs. Inspite of the statement made by the learned Advocate General, on instructions, which is supported by the affidavit of Sunil Wadke, Inspector of Police, that the CDRs are not in possession of the Investigating Agency at all, is seriously disputed and challenged on behalf of the appellants. It is therefore necessary to see whether the disbelief about the claim of the prosecution, as felt by the appellants, which obviously is based on the background of the stands take by the prosecution in that regard, from time to time and the stage when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a sim card and one more sim card was found. It was mentioned that the said accused no. 6 had used mobiles registered in the names of the others, and also 'that on the instructions from the accused no. 5 Mohd. Faizal, the accused no. 6 was contacting other members of LeT on his mobile phone of a given number. 19. While the examination of the prosecution witnesses was going on, the appellant no. 4 Ehtesham Kutubuddin Siddiqui filed an application (Exhibit 256) stating that the CDRs of the phones of the accused would prove the innocence of the accused and that the CDRs had not been inserted in the charge-sheet though they had been in the custody of the ATS. It was claimed in the said application that the CDRs were necessary for a just decision of the case and that the Court should direct the ATS to produce the said CDRs. The Special Public Prosecutor filed his reply (Exhibit 310) stating that the prosecution was required to furnish to the accused only with the copies to those documents that are relied upon, and hence the application be dismissed. The Trial Court dismissed the said application, 'holding that the production thereof was not necessary or desirable for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bombs were, at the material time, either not in Mumbai or were at work, or at some other place which is not near the place whether the bombs were planted. That this can be gathered from the 'tower location' which would be revealed from the CDRs. (b) The prosecution has claimed that certain meetings between some of the appellants and other accused had taken place, and that in such meetings, the conspiracy to commit the offence in question was hatched. That, the CDRs would reveal that, at the material time, such accused were not in Mumbai, or at any rate, not at the place where the prosecution claims, they were. (c) That, there were no telephonic contacts, inter-se amongst the accused, except those who are related to one another, or are co-accused in some other case. That, this would rebut the allegation of all accused having entered into a conspiracy. (d) That, the CDRs would establish that the accused had been taken into custody by the police weeks before the dates on which they were shown to be arrested. That, this would be relevant in assessing the admissibility and the weight to be attached to the confessions of the accused persons. (e) That, the CDRs would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating that the CDRs of the telephones held by the accused persons would prove the innocence of the accused and though in custody of the ATS, the CDRs were not inserted in the charge-sheet. The Special Public Prosecutor filed a reply stating that the prosecution was required to furnish the accused with the copies of only those documents that are relied upon by the prosecution, and that the application be dismissed. On this, the application was dismissed with the following order:- Perused Application Ex. 256 by A/4 Ehtecham and say Exhibit 310 given by SPP copy of which is sent to the Accused. In view of the say by SPP that the documents asked for by the Accused are neither forming part of the chargesheet nor are they relied upon by the Prosecution in support of its case, I do not consider that production of the documents asked for is necessary or desirable for the purpose of trial before this court. Hence the order. ORDER Application Ex. 256 is rejected and disposed off. 29. Again, on 24 November 2010, the appellant no. 1 Kamal Ansari filed an application (Exhibit 690) seeking a direction to the Investigating Agency to furnish the CDRs of his mobile telephone collected b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Judge should have addressed himself to was whether the accused would be disentitled from calling for such documents on the ground that these documents are not relied upon by the prosecution. 32. Section 91 of the Code empowers a Court to issue summons to a person 'to produce before the Court, a document or thing believed to be in possession of such person if the Court considers the production of such documents or other things necessary or desirable for the purpose of any inquiry, trial or other proceedings under the Code.' The scope of section 91 is very wide and obviously, it cannot be restricted only to the documents on which the prosecution relies, nor to the stage contemplated by Section 233 or 243 of the Code. There may be cases where for an effective cross-examination of a witness, the cross-examiner would require certain documents in his hand. Without the availability of such documents, the rights and obligations of a cross-examiner under Sections 155(3) and 145 of the Evidence Act, cannot be effectively discharged or exercised by him. To overcome such a situation, he can urge the court to supply such documents to him. If they are in the court, copies thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the investigating agency itself, were supposed to go a long way in establishing not only the commission of the offence in question by the appellants, but also in establishing the wide dimensions thereof, was a question that should have engaged the attention of the court. Was the prosecution conceding that these documents would establish what the appellants claimed they would ? If not, what was the objection to produce the same and disprove the claim of appellants that the same would establish their innocence ? Was the prosecution suggesting, by objecting to the production thereof, that if anything in favour of the accused had been found as a result of investigation, they were entitled to hide it and would not show it even to the court ? Is this the law of this land ? Instead of deciding the applications made by the accused by taking, inter alia, into consideration these aspects, the learned Judge based his decision on the fact that the documents in question had not been relied upon by the prosecution. 35. Since the Learned Judge drew support to his view from some of the observations made by the Supreme Court of India in Sidharth Vashisht @ Manu Sharma (supra), what has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the right of the accused with regard to disclosure of documents is a limited right, but the same is codified and is the very foundation of a fair investigation and trial, it was also observed by Their Lordships : 220 ............ But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. The ultimate conclusion on this issue, as arrived by Their Lordships, is found in paragraph no. 222 of the reported judgment, and it would be proper to reproduce the same here. 222. The concept of disclosure and duties of the Prosecutor under the English system cannot, in our opinion, be made applicable to the Indian criminal jurisprudence stricto sensu at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. (Emphasis supplied) 36. The decision in Manu Sharma's case (supra) was again considered and referred to by the Supreme Court of India in V.K. Sasikala vs. State: (2012) 9 SCC 771. After reproducing paragraph nos. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce providers to the effect that the witnesses cannot be compelled to produce the documents which the ATS had a right to refuse ' was absolutely without substance, and has been rightly given up by the learned Advocate General before this Court. 39. Anyway, even assuming for the sake of arguments, that earlier, the accused were not entitled to seek production of the CDRs, after they had been called upon to enter upon their defence, their rights to call for documents in their defence were much wider. But, even at that stage the prosecution objected to such evidence being brought before the court. When the court issued a summons to the Head of the investigating agency to cause production of the relevant record, no clear statement as to where were those documents, or whether they were not at all in existence was made by the learned Special Public Prosecutor, and the Head of the ATS simply denied any knowledge about the documents. It is only after the matter was brought before the court that, a statement that the documents were not with the investigating agency was made. The question why it was not stated earlier - i.e. before the trial court, has remained unanswered. 40. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail address of ATS. That after receipt of the CDRs, PI Wadke would analyze the same on the request of the Investigating Officer, and if the data would be required for court proceedings, PI Wadke would be required to apply to the Nodal Officer for the hard copy of the same. That if the data was not relevant, then on the instructions of the Dy. Commissioner of Police, it was deleted after filing of the charge-sheet. So far as the present case is concerned, according to PI Wadke, only soft copies of the CDRs were obtained and that the information was deleted about an year after the charge-sheet in the present case was filed, which was sometime in the end of November 2006. 44. The affidavit of the Investigating Officer Sadashiv Patil relates to the query raised by this Court with respect to a certain entry in case diary no. 127 dated 24 November 2006. The acceptance of the explanation given by this witness, would amount to acceptance of a theory that while directing what documents should contain in a particular volume, one would think of mentioning documents which did not exist at all. Such theory cannot be accepted without scrutiny. 45. Some of the curious aspects of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulate the evidence? (v)Whether the information in respect of the CDRs received by e-mail from various service providers would not be converted into hard copy by taking print outs thereof ? (vi)Whether the Inspector in-charge of the technical unit cell of the ATS would be entitled to delete such information without the permission of the Investigating Officer, or the concerned Dy. Commissioner of Police? Or whether any such permission/s had been taken ? (vii)Whether there would be any entry - in the case diary or anywhere else - of having received the information by e-mail and about having taken permission to delete the same and/or of actually having deleted the same from the record? 47. Though the legality of the method or manner may not be important in the present context, the answers to these questions have a bearing on formation of an opinion as to whether the investigating agency indeed does not - and did not, at any time - possess any such CDRs. 48. I have carefully considered the matter. In my opinion, it would not be proper for this court to come to a conclusion as regards whether the claim put forth by the prosecution, namely : that the investigating agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , would, in appropriate cases, go beyond the drawing of an adverse inference and may vitiate the trial itself. In the aforesaid case of Habeeb Mohammed (supra), Their Lordships clearly held : a conviction arrived at without affording opportunity to the defence to lead whatever relevant evidence it wanted to produce cannot be sustained. The only course open to us in this situation is to set aside the conviction. 51. The refusal of the trial court to direct the Nodal Officers to file affidavits in support of their claims that the relevant data was not available was improper and not in accordance with law. If the court did not want the Nodal Officers to file the affidavits, it could have itself questioned the Nodal Officers on oath in that regard and could have recorded their evidence with liberty to the prosecution and to the accused, to question them further in that regard. Infact, such a course would have been proper and would be rather inevitable if the court wanted to feel satisfied about non-availability of such record. 52. The impugned orders are clearly wrong. The trial court should have considered the likelihood of the relevant CDRs being available with the investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere sent by the Mobile Service Providers on the e-mail address of the ATS. If the trial court feels it necessary, it can seek the evidence / assistance of experts to see whether the data said to have been deleted, can be retrieved, and it is possible to find the names of such experts by taking assistance of the officials of Maharashtra Judicial Academy If, by taking help of the experts in that field, the data can be retrieved, the problem of non-availability would be solved. Needless to say that the Court should provide all the assistance to them by all possible legal means and methods. 57. The trial court needs to keep in mind its powers under Section 311 of the Code and Section 165 of the Evidence Act, to summon any experts so as to ascertain the correct position with respect to the possibility of retrieving the relevant record. The trial court ought to keep in mind that considering the nature of the charge against the appellants, there is likely to be a reluctance on the part of even independent witnesses, to make efforts, for making evidence, believed to be in favour of the appellants, available. The appellants in the light of the said charge, can at once be branded as anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness, or on some piece of evidence, then it is not bound to disclose the same, even if the evidence is in favour of the accused. Such an interpretation would be both against the Principles of Natural Justice and against the concept of fair play. Undoubtedly, Principles of Natural Justice are an integral part of a fair trial. Article 21 of the Constitution of India and the Universal Declaration, mentioned above, both guarantee a fair trial to the accused. Even if the Code does not contain any provision for providing all the evidence collected by the investigating agency such a provision has to be read into the Code. For principle of natural Justice audi alteram partem would have to be read into the Code. It is trite to state that opportunity of hearing means effective and substantial hearing. Truncated evidence, half hidden evidence given to the accused or placed before the Court, do not amount to effective hearing. Thus, under the principle of audi alteram partem the accused would have the right to access the evidence which is in his favour but which the prosecution is unwilling to produce in the Court and whose disclosure does not harm the public interest. In case the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his favour, he can reasonably conclude that justice has not been done with him. The feeling of injustice would weaken the faith of the people in the judiciary as an institution. The faith of the people, in a democracy, has to be protected and promoted. (paragraph no. 31 of the reported judgment) I respectfully agree with the above observations, which in my opinion need to be kept in mind by the trial court as well as the learned Special Public Prosecutor. 59. As regards the availability of the relevant documents with the investigating agency, though no conclusion at this stage can be arrived at by this court, the fact remains that the matter needs to be further considered by the trial court. If, on such further consideration of the matter, the trial court comes to the conclusion that the investigating agency can be believed to be in possession of such records, then it should consider the prayer of the accused persons to issue a search warrant to search for the relevant records. 60. After considering all the relevant aspects of the matter, the appeals are being disposed of as follows : (i) The appeals are partly allowed. The impugned orders are set aside. (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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