TMI Blog2008 (3) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 1.1 Crores of which Sharma then Vice Chairman of DDA was to get ₹ 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 (herea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain documents details of which have been set out in the Annexures 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 position regarding the relevant calls according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lephone 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y referring to the meaning of the words 'document' and 'evidence' occurring in Section 3 of the EA. The said definitions read as under: - 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'` mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets 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 Seriall No. 1 to 7 detail the 19 CDs referred to earlier. Seriall 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: B 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1967]1SCR843 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chand 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 139(2007)DLT178 , Pravin Kumar Lalchand Shah v. State of Gujarat (1982) Cri. L. J. 76, S.J. Chowdhary v. State 25(1984)DLT254 , State of Kerala v. Raghavan, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 [1974]93ITR505(SC) 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1977CriLJ1606 , Superintendent and Remembrancer v. Anil Kumar Bhunja 1979CriLJ1390 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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