TaxTMI 
TaxTMI 
2008 (3) TMI 756
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....9;) 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 s....
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....me 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....
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....used 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....
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....esheets is that apart from the statements of witnesses, and certain 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....
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....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 relyin....
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.... 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 Counse....
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....k 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 ....
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.... 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 d....
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....PFSL 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 ....
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....o, 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....
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....warded 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 fro....
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....9;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: - 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 relatio....
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....nd 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 compute....
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.... 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 'propose....
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.... 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....
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....ent 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 c....
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....he Court in respect of duration of relied upon phone calls in terms of the judgment of the Supreme Court in State v. Navjot Sandhu 2005CriLJ3950 . 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....
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....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 relevan....
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....pecified 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 ....
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....ords, 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 proper....
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....rensic 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 i....
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.... 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 Th....
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....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 p....
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....olated' 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 w....
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.... 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 C....
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....ted 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 judgm....
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....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 pro....
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....e 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 fro....
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....ce 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 appr....
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....ents 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 stag....
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....i) 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....