2008 (3) TMI 756 - HC - Indian Laws

Court: Intercepted phone conversations on hard discs are documents. Prosecution must provide copies to accused.

Dharambir Versus Central Bureau of Investigation

The court determined that hard discs containing intercepted telephone conversations are considered documents under relevant legal provisions. The ... - Issues Involved:1. Interpretation of Sections 173(5) and 207 of the Code of Criminal Procedure (CrPC), Sections 3 and 65B of the Indian Evidence Act (EA), and Sections 2(o) and 2(t) of the Information Technology Act (IT Act).2. Whether hard discs (HDs) containing intercepted telephone conversations are 'documents' under Section 173(5)(a) and Section 207(v) CrPC.3. Discretion of the prosecution to decide which documents to rely upon and the powers of the court in this regard.4. Whether denial of access to all documents gathered during investigation violates the fundamental right to a fair trial under Article 21 of the Constitution.5. How the accused should be provided access to the HDs.Detailed Analysis:Issue (i): Are the Hard Discs DocumentsRs.The court examined the statutory provisions, including Sections 173(5) and 207 CrPC, and definitions under the Indian Evidence Act and Information Technology Act. It concluded that:- A hard disc, once written upon or subjected to any change, becomes an electronic record and thus a document.- Both the CDs containing the relevant intercepted telephone conversations and the HDs themselves are considered electronic records and therefore documents under Sections 173(5)(a) and 207(v) CrPC.Issue (ii) and (iii): Discretion of the Prosecution and Powers of the CourtThe court held that:- The prosecution is obliged to furnish copies of only those documents it proposes to rely upon, as indicated in the charge sheet or already sent to the court during investigation.- The trial court cannot direct the prosecution to furnish copies of documents other than those it proposes to rely upon.- The prosecution must indicate in the charge sheet the documents it relies upon. If it fails to do so, the court will assume all forwarded documents are relied upon.- In the Shameet Mukherjee case, the court found that the prosecution must provide copies of the 19 CDs containing 768 calls, as they are mentioned in the charge sheet.Issue (iv): Right to a Fair TrialThe court determined that:- As long as the statutory requirements of Sections 207(v) and 173(5)(a) CrPC are strictly complied with, the failure to furnish all documents gathered during investigation does not violate the right to a fair trial under Article 21 of the Constitution.- None of the cited decisions support the contention that denial of access to all documents gathered during investigation at the pre-charge stage constitutes a violation of the fundamental right to a fair trial.Issue (v): Access to the Hard DiscsThe court directed that:- The accused should be allowed to listen to the original recordings of the relevant intercepted telephone conversations directly from the HDs in the presence of the accused or their representatives, their counsel, and the learned Judge.- The four HDs should be brought back to Delhi and kept in a controlled environment, subject to the directions of the learned Special Judge.- The recorded conversations should be played in the presence of the relevant parties, and this process should be completed within a specified timeframe.- In the Shameet Mukherjee case, the accused should be provided with copies of the 19 CDs containing the 768 calls, but need not have access to the entire 768 calls recorded in the HDs at this stage.Final Directions:1. The CBI will provide copies of the 19 CDs containing 768 calls to the accused in the Shameet Mukherjee case within one week.2. The four HDs will be brought back to Delhi and kept in a controlled environment.3. The learned Special Judge will fix dates for playing the original recorded conversations directly from the HDs.4. The arguments on charge should be concluded by 30th April 2008, and orders on charge should be passed by 31st May 2008.5. The petitions and applications are disposed of accordingly.