The ratio of
the aforesaid decision cannot be said to be that the accused is not
entitled to seek copies or the production of documents on which the
prosecution does not rely, for the purpose of establishing or supporting
his defence. What the aforesaid judgment lays down is that so far as
the documents which are relied upon by the prosecution are
concerned, there would be no question of not furnishing copies
thereof to the accused, and it would be the statutory duty and
obligation of the prosecution as well as the Court to see that the
accused is furnished with the copies of all such documents; but this
positive assertion cannot be construed as laying down a negative,
namely, that the accused under no circumstances can seek copies or
production of documents on which the prosecution does not rely. All
that the judgment lays down is that with respect to the documents,
which are not relied upon by the prosecution, there being no
statutory duty cast upon the prosecution to furnish such documents
to the accused, the question of furnishing copies of such documents
would depend on what would be fair and just in a given situation.
That the documents relied upon by the prosecution must essentially
be furnished to the accused, does not mean that other documents,
howsoever important they may be from the point of view of the
accused, need not be given to him though available with the
prosecution.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.973 OF 2012
1. Kamal Ahmed Mohammed Vakil )
VERSUS
The STATE OF MAHARASHTRA
JUDGMENT PRONOUNCED: 10 December, 2012
Corum;Abhay M Thipsay J
Citation;2013 CR LJ 858 bombay
1 These two appeals arise from the orders passed by the
learned Judge of the Special Court, constituted under the
Maharashtra Control of Organized Crime Act, 1999 (hereinafter
referred to as 'MCOC Act' for the sake of brevity) in MCOC Special
Case No.21 of 2006, which is pending before him. They can be
conveniently disposed of by this common order, as the issues
involved in both these appeals are basically the same. Disposing of
the appeals by a common order will help maintaining the continuity
and avoid repetition of discussion.
2 The appellants are the accused in the said MCOC
Special Case No.21 of 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.
3 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.
4 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
April 2012.
5 After the appellants had been called upon to enter on
their defence, the appellants made an application (Exhibit 2891)
praying that the witness summons be issued to 79 persons
(mentioned in the list contained therein) whom they wanted to
examine as defence witnesses.
6 Inspite of the objection raised by the prosecution,
summonses were directed to be issued to some of the said witnesses
including the witnesses mentioned at Sr.Nos.61 to 74 in the said
list. Some of these witnesses were the Nodal Officers of certain
Telecom Companies – Mobile Service Providers, and they were
summoned before the court along with the Call Data Records in
respect of certain telephone numbers, which according to the
defence were relevant.
7 It is not necessary to give further details here, except
mentioning that pursuant to certain developments that took place
thereafter, and the objections raised by the learned SPP, the learned
Judge declined to issue witness summonses to some of the
witnesses (witnesses mentioned at Sr. Nos.63 to 66 in the
application Exhibit 2891). That order was challenged by the
appellants by filing another appeal. That appeal, being Criminal
Appeal No.972 of 2012, has already been decided by me.
8 These two appeals also arise from the orders passed by
the trial court, which resulted in the defence not being able to
produce certain documents, which the appellants wanted to tender
in evidence, as and by way of their defence. The background in
which the relevant prayers came to be made by the appellants
(some of them) and rejected by the trial court is as follows :
9 In the course of investigation, certain “Call Data
Records” (CDRs) in respect of the cell phones held / possessed by
the appellants were called for by the Investigating Agency; and
while seeking the remand of the accused persons in custody, it had
been claimed by the Investigating Agency that the scrutiny of the
said CDRs was being done as a part of the investigation. Even before
the appellants had been called upon to enter on their defence, they
had, on a number of occasions, made applications praying that the
prosecution should be asked to produce the said CDRs as they
would establish the innocence of the appellants, or some of them.
It was urged that by exercising the powers vested in the Court by
section 91 of the Code of Criminal Procedure,(the Code) the CDRs
be directed to be produced by the prosecution. 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.
10 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 crossexamined,
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., AntiTerrorism 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 documents. The Investigating Officer
who had been crossexamined had stated that he had since retired,
and that, he did not know whether the CDRs were in the ATS Office.
It is in these circumstances that the appellants filed an application
(Exhibit 2919) praying for issuance of a search warrant directed to
Shri Rakesh Maria – head of the investigating agency – (ATS) to
take search of the ATS office and produce the relevant record. This
application was rejected by the trial court by an order dated
1.8.2012, holding that – 'the advocate for the accused had not been
able to make out grounds to believe that the concerned officer, to
whom the summons had been issued, would not produce the
documents or things, as firstly, no case had been made out that such
documents were in the possession of that person (Rakesh Maria), and
secondly, two earlier applications (Exhibits 256 and 690) filed on
behalf of the accused to direct the prosecution to produce the said
CDRs, had been rejected on merits, and that, therefore, there was no
merit in the application.'
11 Feeling aggrieved by the said order, the Criminal
Appeal No.973 of 2012 has been filed, praying 'that the order
refusing to issue search warrant as passed by the learned Trial Judge
on 1 August 2012, be quashed and set aside, and that the respondents
be directed to produce the original CDRs with original certificates and
the original correspondence which the ATS had with various mobile
telephone companies, which CDRs were collected during the course of
investigation to trace the location of the appellantsaccused at the time
of incident and further that the defence be allowed to lead the
proposed defence evidence in that regard.'
12 Coming to the circumstances leading to the Criminal
Appeal No.992 of 2012, as aforesaid, the appellants had also cited
some Nodal Officers of the Mobile Service Provider Companies, as
witnesses for the defence, who, as aforesaid, had been summoned
by the trial court. It seems that one such Nodal Officer was
examined on 16.8.2012. But the other Nodal Officers, who had
appeared before the court, submitted, that they had not brought the
relevant documents with them as the period for which the details
were called for, was not mentioned in the summons. On this, the
defence gave the relevant details, when the learned SPP once again
raised his objection to such evidence 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.
13 The advocates for the appellants / accused doubted the
correctness of the claim of nonavailability of the relevant record
and prayed to the court that the Nodal Officers be directed to file
affidavits in support of the letters. The learned Judge observed that
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'such a direction could not be given as the witnesses had appeared in
response to summons and had filed letters expressing their inability to
produce the CDRs, in view of the guidelines by the Department of
Telecommunications (DOT) and the order of the court.' Immediately,
an application was made in writing (Exhibit 3034) by the advocates
for some of the accused that the said witnesses be directed to file
affidavits in support of the contents of their letters that CDRs are
maintained for one year only. The learned Judge rejected the
application by holding that the witnesses had been called by the
defence and they had expressed their inability to produce the
documents asked for and that they could not be compelled to file an
affidavit.
14 It is, being aggrieved by the said order of rejection, that
the appellants have filed Criminal Appeal No.992 of 2012, praying
that the order dated 21 August 2012 passed by the learned Trial
Judge, be quashed and that the Trial Judge be directed to issue
directions to the Nodal Officer cited by the defence to retrieve the
data of the CDRs called for, by the defence, and to produce the
CDRs of all the mobile telephones which were used by and/or were
in possession of the appellants, as mentioned in the list at Exhibit
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2891 before the Trial Court along with necessary certificate,
correspondence in that regard with the ATS Officer etc. It is prayed
in the alternative that the defence be allowed to examine the Nodal
Officers cited by the defence and their Information Technology
Officers.
15 I have heard Dr.Yug Choudhary, learned counsel for the
appellants. I have heard Shri Darius Khambatta, learned Advocate
General, on behalf of the State of Maharashtra.
16 By consent, it was decided that the appeals be heard
finally at the stage of admission itself. By consent, calling for
Record and Proceedings was dispensed with.
17 Before proceeding further, it may be observed that so
far as the prayers in Criminal Appeal No.992 of 2012 are concerned,
the learned Advocate General submitted that he has no objection if
the relevant record is permitted to be summoned from the
concerned Telecom Companies / 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
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appropriate directions are given to the trial court with respect to
bringing the evidence in question on record.
18 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 statement about the unavailability of the CDRs
came to be made, is reasonable and justified.
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19 A reference to the cell phones and the records of call
etc. was first made by the Investigating Agency in the course of
investigation itself, the details thereof are given by the appellants as
under.
a) In the remand application dated 17 August
2006 seeking remand of the accused nos.1, 2 and
3, it was mentioned 'that the accused nos.2 and 3
(appellant nos.2 and 3 herein) had been found in
possession of cell phones and that their call records
are also obtained for the purpose of comparison of
other arrested including the accused no.1'.
b) In the remand application dated 17 August
2006 seeking remand of the appellant no.4
Ehtesham, among other things, it has been
mentioned that a mobile phone from his brother –
one Ishtiyad Mohd. Ansari had been seized and
that this requires further interrogation and
'recovery of data' from the said mobile phone.
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c) In the remand application dated 22 August
2006 in respect of appellant nos.7 and 8
Mohammad Sajid Ansari and Abdul Wahid Din
Shaikh respectively, it was mentioned that the
accused no.8 used to give his mobile phone
(bearing a particular number) for contacting the
other members of LashkareToiba outside India
on behalf of accused no.7.
d) Again, in the remand application dated 25
September 2006 with respect of accused nos.1 to
9, it was, inter alia, mentioned that the accused
no.1 had been to Pakistan where he had
undergone training in handling of sophisticated
firearms and explosives, and that “he had used
the mobile phone and email addresses for
communicating with those persons (persons in
Pakistan) and passing on message. The call
records of his mobile phone are being analyzed.”
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e) In another remand application, also dated
25 September 2006, in C.R.No.87 of 2006 of
Bandra Police Station, it was inter alia, mentioned
that the brother of the accused no.2 Dr.Tanvir had
surrendered a cell phone to the Investigating
Agency. It was also mentioned that mobile phone
used by the accused no.4 Ehtesham Kutubuddin
Siddiqui was seized from him, and that the same
was sent to Forensic Laboratory, Hyderabad for
examining and extracting information in it. It was
also mentioned that in the house search of the
accused no.6 Shaikh Mohammad Ali Alam
Shaikh, inter alia, one mobile phone 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.'
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20 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 chargesheet 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 purpose of trial.'
21 Again, on 24 November 2010, the appellant no.1 filed a
similar application (Exhibit 690) seeking a direction to the
Investigating Agency to furnish the CDRs of his mobile phone
collected by them during investigation, as the accused wanted to
rely on the said CDRs for his defence and that the Investigating
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Agency may tamper with the records. It was further mentioned in
the said application that the records support the defence of the
accused of alibi. The reply to this, from the Special Public
Prosecutor was to the effect that the records were not 'relied upon
by the ATS', 'that they were not part of the records', 'that
assuming without admitting that even if there is any such
record, the original shall always be in the custody of the service
providers'. The application (Exhibit 690) made by the appellant
no.1 Kamal Ahmed Mohammed Vakil was rejected, by a detailed
order dated 15.12.2010.
22 The Investigating Officer was cross examined as
witness no.186 for the prosecution. In his evidence, he had given a
number of admissions to the effect that the cell phone numbers
pertaining to the accused were disclosed during the investigation; that
he had been made aware that the CDRs of the mobile telephones
could provide the location of the phone when the calls were made
or received, that PI Wadke's staff was analyzing the data in the CDRs
etc.
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23 Dr.Chaudhary, learned counsel for the appellants
vehemently contended that the claim that the CDRs are not
available with the Investigating Agency, cannot be believed. He
submitted that the statements made by the Special Public
Prosecutor from time to time, before the Trial Court indicate that
the availability of such record with the Investigating Agency was
never denied. He also submitted that the matter cannot be viewed
lightly and that this Court would be required to examine all the
relevant aspects, and issue appropriate directions in the matter. He
submitted that among other things, whether the refusal of the Court
to summon the documents earlier was proper and legal, would also
need determination by this Court.
24 I have carefully considered the matter.
25 According to the defence, the relevancy of the CDRs
lies in the following:
(a) That the CDRs would show that some of the
appellants who are said to be the persons who actually
planted the bombs were, at the material time, either not in
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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, interse
amongst the accused, except those who are related to one
another, or are coaccused 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
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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 falsify the confessions
recorded by the police by showing that the phones were
never switched off, and were constantly in use in a normal
way.
(f) That, even after the date on which the accused were
shown as arrested, and their mobile telephones were
seized, such phones were being used by the police for
illegal activities, and that the phones were even being re
charged by the police.
26 Thus, that the CDRs, on the face of these claims of the
appellants, are certainly relevant. That, they would be admissible
in evidence, cannot be doubted. Anyway, as the relevancy and
admissibility thereof is not disputed before this Court, it is not
necessary to discuss this aspect any further.
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27 The next question that needs consideration is whether
the appellants were entitled to call for the CDRs even before they
had been called upon to enter on their defence. This requires
consideration because while refusing the prayer to issue a search
warrant, the trial court had relied upon the fact that previously the
applications made by the appellants calling for such records had
been rejected by it. Though not directly relevant for the purposes
of the present appeals, this issue needs to be considered as it relates
to the fairness of the prosecution and the necessity of ensuring that
every accused gets a fair trial. It is not too late to clarify the legal
position in that regard, as the trial is still not over; and if there has
been a denial of a fair opportunity to the appellants, to put forth
their defence effectively earlier, it can be still be cured now. It
ought to be remembered that denial of a proper and effective
opportunity to an accused to defend himself, which includes
providing an opportunity to adduce evidence in defence, vitiates
the trial.
28 The first application for calling the CDRs was made by
the appellant no.2 Dr.Tanvir Ahmed Mohd.Ibrahim, as back as on
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15 June 2007. The reply of the Special Public Prosecutor to that
application was 'since the documents demanded by the accused/
appellants are not relied upon the chargesheet, there is no question of
furnishing copies thereof to the accused'. In view of this, the Trial
Court did not direct the copies of the CDRs to be furnished to the
accused persons.
29 On 9 November 2009, when the prosecution evidence
was being adduced, the appellant no.4 Ehtesham filed an
application (Exhibit 256) stating 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 chargesheet. 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
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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.
30 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 by them during investigation. He categorically
stated in the said application that he wanted to rely on those CDRs
for his defence and that the ATS may tamper with the records. It
was further submitted that these records would support the defence
of alibi. He submitted that he wanted the CDRs for the purpose of
effective cross examination of PW no.57 which was, it appears was
then going on. The reply of the Special Public Prosecutor was as
follows :
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It is respectfully submitted after having
taken instructions for the IO ACP Shri Patil
(Now retired) It has been confirmed that
such Print Outs are not relied upon by the
Prosecution and are not a part of the record.
There is no question of any likelihood of
tampering with such record as alleged by the
defence. Assuming without admitting that
even if there is any such record the original
shall always be in the custody of the service
provider and such record can certainly not be
tampered. It has further to be appreciated
that assuming the existence of any such
record the present witness has nothing to do
with it or no role to play in respect thereof
which will in any way affect the testimony of
this witness one way or the other.
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31 On this, the Learned Judge passed a detailed order
rejecting the said application. He was of the view that the
application made by the said accused was misconceived, and that
such record was not necessary for the purpose of crossexamination
of PW 57 who was an independent witness. After considering the
decision of the Supreme Court of India in Sidharth Vashisht @
Manu Sharma Versus State (NCT OF DELHI), (2010) 6 SCC 1,
the learned Judge came to the conclusion that the duty to supply
the documents to the accused would be limited only to the
documents on which the prosecution relies.
32 In my opinion, the learned Judge failed to comprehend
the correct legal position with respect to the rights of an accused to
have documents summoned or produced before the Court for the
purpose of his defence, and confused the same with the right of the
accused to receive the copies of documents as laid down in Section
207 of the Code. When the appellants wanted the documents to be
produced on the ground that the same would prove their innocence,
or facilitate their defence, that those documents were not relied upon
by the prosecution was an irrelevant consideration. The question
which the Learned Judge should have addressed himself to was
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whether the accused would be disentitled from calling for such
documents on the ground that these documents are not relied upon
by the prosecution.
33 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 crossexamination of a witness, the crossexaminer would
require certain documents in his hand. Without the availability of
such documents, the rights and obligations of a crossexaminer
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 can be supplied, but if they
are not, the court would be expected to use the powers under
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Section 91 of the Code, whenever it finds it necessary or desirable.
To overcome an unfair or unjust result, the court certainly would be
entitled to exercise the powers under Section 91 of the Code, which
section is widely framed and contains nothing to indicate otherwise.
It is not that the documents called for by the accused, must be
called by the court, just for asking, but, surely, that the prosecution
is not relying on such documents cannot be a consideration that
should weigh in deciding such application made by an accused.
34 The right of an accused person to summon the
documents on which he relies, was considered by the Rajasthan
High Court in Dhananjay Kumar Singh Versus State of Rajasthan,
2006 Cr.L.J 3873. In that case, after extensively considering the
provisions of Sections 91, 172, 173, 207 and 243 of the Code, and
Sections 145, 159, 161, 162 and 165 of the Evidence Act, the
Rajasthan High Court concluded that the powers under Section 91
of the Code were wide enough even to summon the case diary at
the instance of the accused, despite the bar contained in subsection
(3) of Section 172 of the Code. It was held that Section 172(3) did
not limit the jurisdiction of the Code under Section 91 of the Code.
This indicates how wide the scope of Section 91 is.
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35 In the instant case, considering the relevance of the
CDRs, and the importance thereof from the point of view of the
appellants, it appears, that the Trial Court ought to have called for
those documents even earlier when prayer to cause the production
thereof had been made by some of the appellants. The concept of
fairness would require such documents to be given to the accused
persons at the earliest when they had been called for, by them.
These documents had been collected by the prosecution in the
course of investigation, as per the claims made by the investigating
agency from time to time, and formed a part of the record of the
investigation. (It was nobody's case at that time that the
prosecution did not have such documents, or that the documents
had been destroyed by them, and at any rate, the court did not
refuse to summon the documents on the basis that the prosecution
did not have such documents.) Why was the prosecution then not
relying on those documents, which, as per the claims 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.
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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.
36 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 been laid
down by Apex Court in the aforesaid case, may be examined. In
paragraph no.18 of his order, on the application (Exhibit 690) the
learned Judge quoted the observations made by Their Lordships of
the Supreme Court in paragraph no.220 of the reported judgment
in Manu Sharma's case (supra) but ignored what has been laid
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down in the subsequent paragraphs and even earlier. The ratio of
the aforesaid decision cannot be said to be that the accused is not
entitled to seek copies or the production of documents on which the
prosecution does not rely, for the purpose of establishing or supporting
his defence. What the aforesaid judgment lays down is that so far as
the documents which are relied upon by the prosecution are
concerned, there would be no question of not furnishing copies
thereof to the accused, and it would be the statutory duty and
obligation of the prosecution as well as the Court to see that the
accused is furnished with the copies of all such documents; but this
positive assertion cannot be construed as laying down a negative,
namely, that the accused under no circumstances can seek copies or
production of documents on which the prosecution does not rely. All
that the judgment lays down is that with respect to the documents,
which are not relied upon by the prosecution, there being no
statutory duty cast upon the prosecution to furnish such documents
to the accused, the question of furnishing copies of such documents
would depend on what would be fair and just in a given situation.
That the documents relied upon by the prosecution must essentially
be furnished to the accused, does not mean that other documents,
howsoever important they may be from the point of view of the
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accused, need not be given to him though available with the
prosecution. The learned Judge noted the observation made by
Their Lordships of the Supreme Court of India to the effect that 'the
role and obligation of the prosecutor particularly in relation to
disclosure cannot be equated under our law to that prevalent under
the English system ..........”, (It is on this observation that reliance
was placed even by the learned Advocate General before this Court)
but the further observation made be Their Lordships in the same
paragraph to the effect that 'at the same time, the demand for a fair
trial cannot be overlooked' was not taken into consideration. While
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.
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“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)
37 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.216 to 221 in Manu Sharma's case, it was observed
that 'the concept of a free and fair trial, painstakingly built up by
the Courts on a purposive interpretation of Article 21 of the
Constitution was much larger and was not limited only to the
compliance with the provisions of section 207 of the Code.' Their
Lordships, inter alia, observed that the individual notion of
prejudice, difficulty, or handicap, in putting forward a defence
would vary from person to person and there can be no uniform
yardstick to measure such perceptions. Their Lordships further
observed :
“It is not for the prosecution or for the
court to comprehend the prejudice that
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is likely to be caused to the accused.
The perception of prejudice is for the
accused to develop and if the same is
founded on a reasonable basis it is the
duty of the Court as well as the
prosecution to ensure that the accused
should not be made to labour under any
such perception and the same must be
put to rest at the earliest. Such a view,
according to us, is an inalienable
attribute of the process of a fair trial
that Article 21 guarantees to every
accused.” (Paragraph 20 of reported
judgment)
In that case, Their Lordships allowed the appeal directing inspection
of unmarked and unexhibited documents to be given to the accused
by the Trial Court before the examination of the accused under
section 313 of the Code, would be completed.
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38 Thus, the previous orders passed by the Trial court (on
Exhibit 256 and Exhibit 690) were based on an erroneous
interpretation of the Law.
39 The prosecution has been unfair in opposing the
applications on grounds which were not justified in law. The stands
taken by the prosecution were varying, and at times conflicting.
This gives an impression that, maximum obstacles and difficulties in
the way of the defence procuring the relevant documents, were
intended to be created. The Investigating Officer's stand that he
does not have them and the stand of the ATS head that he was not
connected with the ATS at the material time, and that, therefore, he
did not know whether there were any such documents, and that if at
all they were there, they must be with the Investigating Officer, exhibit
an intention of somehow preventing the appellants from being able
to produce the relevant evidence before the court. The objection
for obtaining the CDRs from the mobile service 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.
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40 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.
41 The contention of Dr. Chaudhary, the learned counsel
for the appellants, that the claim of the prosecution to the effect
that they were never having hard copies of the CDRs in their
possession, and that the soft copies that had been collected, have
been destroyed, is apparently false, and cannot be believed, needs
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to be seriously considered. It may be observed that even before
this Court, this had not been put forth when the arguments in the
appeal commenced. Some vague statements about the
unavailability of such CDRs were earlier made and it is only when
the Court directed to state the facts by filing the affidavit that the
affidavit of PI Sunil Wadke was filed.
42 In order to be able to get certain aspects clarified,
though the hearing of the appeal was completed, and the matters
were closed for orders after calling the copies of the case diaries
from the Trial Court, while glancing through the case diaries,
certain facts were observed in view of which, it was thought
necessary to seek certain clarification from the prosecution. It is
thereafter that the affidavit of S.L. Patil – the Investigating Officer –
has been filed.
43 I have considered the contents of the said affidavit.
Indeed, that the Investigating Agency was never in possession of
any print outs, or any hard copies of the CDRs at any time, cannot
be accepted merely on the strength of the affidavits of PI Sunil
Wadke, and the Investigating Officer – Sadashiv Patil. The stand
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taken by the State before this Court leaves several questions
unanswered.
44 In his affidavit, Sunil Wadke has explained what was
the procedure as was prevalent with respect to storage of CDRs by
the technical unit of ATS. According to him, the technical unit of
the ATS used to procure and analyze CDRs of suspected mobile
phones on information received by ATS during the course of
investigation of cases. According to him, the practice was that the
concerned Investigating Officer would orally inform the concerned
Dy. Commissioner of Police who would be the Nodal Officer or PI
Wadke to collect the CDRs from Nodal Officer from the concerned
telecom company. That pursuant to such request, the Dy.
Commissioner of Police or an Officer holding his charge would
authorize PI Wadke to send the email to the Nodal Officer of
telecom company requesting them for such CDRs, which such Nodal
Officer would thereafter email on the email 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
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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 chargesheet in the
present case was filed, which was sometime in the end of November
2006.
45 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.
46 Some of the curious aspects of the matter may be noted
below :
(a) Though at various stages, the prosecution had objected for
the production of the CDRs on various grounds, it had not been
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disclosed to the defence or to the court that no such CDRs were
available with the prosecution, or that they had been destroyed. On
the contrary, the statements made by the Special Public Prosecutor
from time to time while dealing with the applications made by the
applicants indicate that the availability of the material in question
with the prosecution was never denied by the prosecution.
(b) When the documents were not available at all, one would
think that the best reply to an application calling for such
documents would be that the documents are not available. One
would not think that the prosecutor would raise various technical
and legal objections for opposing the production of documents,
which never existed, but on the claim made by the prosecution, this
appears to have happened in the present case.
(c) Though there was no correspondence regarding CDRs, and
no CDRs had been obtained in the course of the entire investigation,
still while directing the classification of the case papers in different
volumes for the purpose of convenience, the print outs of call
details were directed to be kept in Volume VI. Thus, the documents
which never existed, were directed to be kept in a particular volume
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i.e. Volume No.VI. (It transpired during the hearing of the present
appeals that no such volume had been forwarded to the Trial Court,
and the claim is that no such volume ever existed with the
Investigating Agency.)
47 Apart from this, the claim of P.I.Wadke, as per his
affidavit, about the procedure adopted for obtaining the relevant
record and its destruction / deletion also leaves certain questions
unanswered, some of which are :
(i) Whether the police can lawfully seek such information from
the Telecom Companies / Mobile Service Providers in the
manner in which PI Wadke has explained in his affidavit ?
(ii)Whether the Mobile Service Providers can give, in law, such
information in a manner explained by PI Wadke ?
(iii)Whether such communications are treated as official &
formal or unofficial and informal ?
(iv)If such communications sent by and received by the police
are 'informal' and 'unofficial', is such a course permissible?
Will it not give police an opportunity to manipulate the
evidence?
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(v)Whether the information in respect of the CDRs received by
email from various service providers would not be converted
into hard copy by taking print outs thereof ?
(vi)Whether the Inspector incharge 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 email
and about having taken permission to delete the same and/or
of actually having deleted the same from the record?
48 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.
49 I have carefully considered the matter. In my opinion,
it would not be proper for this court to come to a conclusion as
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regards whether the claim put forth by the prosecution, namely : that
the investigating agency never had any hard copies of any CDRs with
it, and that, whatever information it had received from the concerned
Telecom Company / Mobile Service Provider was deleted by it long
back, is true. However, in the light of attendant circumstances, the
claim cannot be easily accepted. It would be proper if the trial
court considers this aspect of the matter in accordance with law.
50 What should happen in a case where, certain
documents are called for from the prosecution, at the instance of
the defence, and the prosecution comes up with a claim that such
documents are not available with it, or have been lost or destroyed,
would depend on the facts of each case. It would be for the trial
court to consider what course is to be adopted in the matter. No
casual approach to the matter would be justified. The ease with
which the Learned Judge believed the claim of unavailability of the
record with the investigating agency as well as with the Mobile
Service Provider Companies is rather surprising. The observations
made by the Supreme court of India in Habeeb Mohammed v/s.
State of Hyderabad AIR 1954 Supreme Court of India 51
indicate that in such cases, it would be open for the accused,
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whenever the claim of documents either not being available, or of
having been destroyed, is made, to challenge such statements, and
that, the court might at that stage, ask the prosecution to support
their replies by affidavits or otherwise. This would be absolutely
necessary because it would be difficult to make the necessary
inquiry after the trial would be over and the matter is brought
before the Appellate court.
51 Even the plea 'that let adverse inference be drawn
against the prosecution' put forth to suggest that an accused will not
be prejudiced by nonproduction of the relevant evidence, will not
necessarily prevent judicial inquiry into the correctness of the claim
of nonavailability or loss. Such plea is sometimes put forth to
prevent a judicial inquiry into the matter, when the prosecution
feels that the adverse inference likely to be drawn by the court from
the nonproduction of the documents called for by the defence,
would not be as adverse as would be likely to be caused to the
prosecution, by production of those documents. What is often
forgotten in such cases that deliberate suppression or withholding
of documents which an accused would want to be produced for his
defence, 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.”
52 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
nonavailability of such record.
53 The impugned orders are clearly wrong. The trial court
should have considered the likelihood of the relevant CDRs being
available with the investigating agency, and ought to have
considered the application for issue of search warrants in the light
of the various stands taken by the prosecution / investigating
agency, in that regard, from time to time. It need not have been at
once satisfied, that there exists no such record which the accused
wanted to get produced. Similarly, accepting the contents of the
letters brought by Nodal Officers, as true, without requiring them to
state the material facts on oath, was also not proper. Further,
whether it was possible to retrieve the data with the help of the
Information Technology Department of the concerned Mobile
Service Provider Companies, needed serious consideration, and the
trial court did not apply its mind to this aspect.
54 It must be emphasized that the appellants are facing a
serious charge and there is every possibility that they or atleast
some of them, would receive a death sentence, on being found
guilty. It is, therefore, absolutely essential that they get a full and
proper opportunity to defend themselves. When the evidence that
is being sought to be given in defence by them, is relevant and
admissible, the claim that such material or evidence is not available,
cannot be accepted, without scrutiny and without making efforts to
secure such evidence, should it be available. This is particularly so,
because, the prosecution had been, all along, averse to the idea of
permitting such evidence to be given, and had been raising various
objections from time to time, to prevent the said evidence from
being brought before the court.
55 The impugned orders are, therefore, not in accordance
with law, and need to be interfered with, in the interest of justice.
56 However, in view of the claim put forth before this
court, that the documents are not available at all with the
investigating agency, what order ought to be passed in these
appeals, needs to be considered.
57 It is now clear that the prosecution has no objection for
the appellants getting the CDRs produced from the Mobile Service
Provider Companies. It appears that even if the relevant data is
deleted, it can be retrieved with the help of Information Technology
Department of the concerned Mobile Service Providers.
Considering the scientific advances made, it appears quite possible
to get the details and particulars of the email by which the CDRs
were called for and the CDRs that were sent by the Mobile Service
Providers on the email 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
nonavailability would be solved. Needless to say that the Court
should provide all the assistance to them by all possible legal means
and methods.
58 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
“antinationals,” and there would be a reluctance on the part of
even an independent witness, to be seen as a person attempting to
help such “antinational” elements. But it ought to be remembered
atleast in a court of Law, that the presumption of innocence which
exists in favour of every accused, does not vanish merely because of
the seriousness of the charge. Infact, in view of the nature and
seriousness of the charge, and that the prosecution is in respect of
such offences, where the higher police officers are involved in the
investigation, the responsibility of the trial court to see that the
appellants get a fair trial, is increased. Any efforts to prevent
judicial scrutiny or examination of the matter in accordance with
law by highlighting the enormity of crime need to be refuted firmly.
The responsibility in that regard is not only of the court, but also of
the Public Prosecutor, who is supposed to be a 'minister of justice'
and who is supposed to represent not the investigating agency but
the State. The duties and role of the Public Prosecutor has been
discussed in several authoritative pronouncements of the superior
courts. It is well settled that a Public Prosecutor must act fairly and
fearlessly, and with a sense of the responsibility that attaches to his
position. The Public Prosecutor is not a person who has been
associated with the investigation, and therefore, it is no part of his
duties to support at all costs, the theory put forth by the
investigating agency, the correctness of which he himself would not
know.
59 In view of what has been observed by me in the course
of hearing of these appeals, and also, in the course of hearing of an
earlier appeal filed by the appellants (Criminal Appeal No.972 of
2012), temptation to quote the observations made by Rajasthan
High Court in the aforesaid case of Dhananjay Kumar Singh
(supra), in the context of the concept of fairness and the duty of
disclosure, cannot be avoided. After considering the various
provisions in the Code and the Evidence Act, this is what Rajasthan
High Court observed :
Despite the legal provisions, despite the case law, there
is still a school of thought which postulates that the
police and the prosecution can withhold information both
from the accused and the Court. According to this
thinking, in case the prosecution does not wish to rely on
the statements of certain 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 sate 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
relevant evidence in favour of the accused is not supplied,
we would be creating “Kangaroo Courts” and weaving an
illusion of justice. Such Courts and such illusions are an
anathema to the judicial sense of fair play.
( Paragraph 28 of the reported judgment) (Emphasis
supplied).
Moreover, the investigating agency and the prosecution
both represent the State. Every action of the state is
legally required “to be fair, just and reasonable”. In
case, the investigating agency and the prosecution
withhold any evidence in favour of the accused from the
accused, they are not being fair, just and reasonable with
the accused. Therefore, their action would be in
violation of Article 14 of the Constitution of India.
Article 21 of the Constitution of India also requires that
the procedure established by law should be fair and
reasonable. A procedure which permits the withholding
of evidence which is in favour of the accused from the
Court and from the accused, cannot be termed as “fair
and reasonable”. Thus, such a procedure would be in
violation of Article 21 of the Constitution of India.
(paragraph 29 of the reported judgment) (Emphasis
supplied)
Furthermore, in every judicial proceeding the parties are
expected to come with clean hands. By withholding the
evidence without any legal justification, the prosecution
would be hiding vital facts from the Court. It would,
thus, come to the Court with unclean hands. The
prosecution is expected to reveal the whole truth and
nothing but the truth to the Court. Neither the
investigating agency, nor the prosecution can be
permitted to keep the Court in the dark. After all, halfbaked truths are unpalatable to the judicial taste.
(paragraph no.30 of the reported judgment) (Emphasis
supplied).
Undoubtedly, it is the duty of the court to discover the
truth of the case. The courts are empowered to discover
the truth. In its quest for the truth, the Court should
not leave any stone unturned. In case, the Court is of
the opinion that the application under Section 91 of the
Code is genuine and has not been moved with ulterior
motive of delaying the trial, the Court must exercise its
jurisdiction and direct the production of the document
including the case diary. The Criminal Court should keep
in mind that justice should not only be done, but must
appear to be done. In case the accused is denied access
to evidence which is in 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.
60 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.
61 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 Trial Court shall permit the defence to
examine the Nodal Officers cited as witnesses for
defence and/or the Officers from the Information
Technology Officers of the mobile service providers, in
question.
(iii) The Trial Court shall consider in the light of such
evidence, as may be adduced, whether the required
data can be retrieved by taking assistance of the
experts in Information Technology. For coming to a
conclusion in this regard, the Trial Court may, on its
own, examine an expert in that field, if necessary by
calling him as a Court witness.
(iv) The Trial Court may take all reasonable steps as
may be necessary to ascertain whether the CDRs
and/or information contained therein, can be made
available; and in case the Trial Court comes to the
conclusion that it is possible, it shall permit such
evidence to be brought on record, if so desired by the
appellants, as and by way of defence evidence, subject
to its relevancy and admissibility.
(v) The Trial Court shall summon PI Sunil Wadke and
Investigating Officer Sadashiv Patil for examining
them, with respect to the contents of the affidavits filed
by them before this Court. The Court shall be free to
examine them by exercising the powers under section
311 of the Code and section 165 of the Evidence Act.
The Court shall also grant an opportunity to the
appellants, as well as to the prosecution to examine or
crossexamine these witnesses, as the case may be.
(vi) After considering the evidence of PI Wadke and
further evidence of the Investigating Officer Sadashiv
L. Patil, as may be adduced, the Trial Court may
consider the prayer of the appellants to issue a search
warrant to search for and seize the relevant documents
and produce the same before the Court, afresh, as may
be required by the appellants.
62 Certified true copies of the Affidavits filed by P.I.Wadke
and Investigating Officer S.L.Patil in this court, be forwarded to the
trial court, along with the writ of this order.
63 The Trial court shall proceed further with the trial
expeditiously.
64 Both the appeals are allowed in the aforesaid terms and
to the aforesaid extent.
(A. M. THIPSAY, J.)
Print Page
the aforesaid decision cannot be said to be that the accused is not
entitled to seek copies or the production of documents on which the
prosecution does not rely, for the purpose of establishing or supporting
his defence. What the aforesaid judgment lays down is that so far as
the documents which are relied upon by the prosecution are
concerned, there would be no question of not furnishing copies
thereof to the accused, and it would be the statutory duty and
obligation of the prosecution as well as the Court to see that the
accused is furnished with the copies of all such documents; but this
positive assertion cannot be construed as laying down a negative,
namely, that the accused under no circumstances can seek copies or
production of documents on which the prosecution does not rely. All
that the judgment lays down is that with respect to the documents,
which are not relied upon by the prosecution, there being no
statutory duty cast upon the prosecution to furnish such documents
to the accused, the question of furnishing copies of such documents
would depend on what would be fair and just in a given situation.
That the documents relied upon by the prosecution must essentially
be furnished to the accused, does not mean that other documents,
howsoever important they may be from the point of view of the
accused, need not be given to him though available with the
prosecution.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.973 OF 2012
1. Kamal Ahmed Mohammed Vakil )
VERSUS
The STATE OF MAHARASHTRA
JUDGMENT PRONOUNCED: 10 December, 2012
Corum;Abhay M Thipsay J
Citation;2013 CR LJ 858 bombay
1 These two appeals arise from the orders passed by the
learned Judge of the Special Court, constituted under the
Maharashtra Control of Organized Crime Act, 1999 (hereinafter
referred to as 'MCOC Act' for the sake of brevity) in MCOC Special
Case No.21 of 2006, which is pending before him. They can be
conveniently disposed of by this common order, as the issues
involved in both these appeals are basically the same. Disposing of
the appeals by a common order will help maintaining the continuity
and avoid repetition of discussion.
2 The appellants are the accused in the said MCOC
Special Case No.21 of 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.
3 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.
4 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
April 2012.
5 After the appellants had been called upon to enter on
their defence, the appellants made an application (Exhibit 2891)
praying that the witness summons be issued to 79 persons
(mentioned in the list contained therein) whom they wanted to
examine as defence witnesses.
6 Inspite of the objection raised by the prosecution,
summonses were directed to be issued to some of the said witnesses
including the witnesses mentioned at Sr.Nos.61 to 74 in the said
list. Some of these witnesses were the Nodal Officers of certain
Telecom Companies – Mobile Service Providers, and they were
summoned before the court along with the Call Data Records in
respect of certain telephone numbers, which according to the
defence were relevant.
7 It is not necessary to give further details here, except
mentioning that pursuant to certain developments that took place
thereafter, and the objections raised by the learned SPP, the learned
Judge declined to issue witness summonses to some of the
witnesses (witnesses mentioned at Sr. Nos.63 to 66 in the
application Exhibit 2891). That order was challenged by the
appellants by filing another appeal. That appeal, being Criminal
Appeal No.972 of 2012, has already been decided by me.
8 These two appeals also arise from the orders passed by
the trial court, which resulted in the defence not being able to
produce certain documents, which the appellants wanted to tender
in evidence, as and by way of their defence. The background in
which the relevant prayers came to be made by the appellants
(some of them) and rejected by the trial court is as follows :
9 In the course of investigation, certain “Call Data
Records” (CDRs) in respect of the cell phones held / possessed by
the appellants were called for by the Investigating Agency; and
while seeking the remand of the accused persons in custody, it had
been claimed by the Investigating Agency that the scrutiny of the
said CDRs was being done as a part of the investigation. Even before
the appellants had been called upon to enter on their defence, they
had, on a number of occasions, made applications praying that the
prosecution should be asked to produce the said CDRs as they
would establish the innocence of the appellants, or some of them.
It was urged that by exercising the powers vested in the Court by
section 91 of the Code of Criminal Procedure,(the Code) the CDRs
be directed to be produced by the prosecution. 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.
10 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 crossexamined,
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., AntiTerrorism 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 documents. The Investigating Officer
who had been crossexamined had stated that he had since retired,
and that, he did not know whether the CDRs were in the ATS Office.
It is in these circumstances that the appellants filed an application
(Exhibit 2919) praying for issuance of a search warrant directed to
Shri Rakesh Maria – head of the investigating agency – (ATS) to
take search of the ATS office and produce the relevant record. This
application was rejected by the trial court by an order dated
1.8.2012, holding that – 'the advocate for the accused had not been
able to make out grounds to believe that the concerned officer, to
whom the summons had been issued, would not produce the
documents or things, as firstly, no case had been made out that such
documents were in the possession of that person (Rakesh Maria), and
secondly, two earlier applications (Exhibits 256 and 690) filed on
behalf of the accused to direct the prosecution to produce the said
CDRs, had been rejected on merits, and that, therefore, there was no
merit in the application.'
11 Feeling aggrieved by the said order, the Criminal
Appeal No.973 of 2012 has been filed, praying 'that the order
refusing to issue search warrant as passed by the learned Trial Judge
on 1 August 2012, be quashed and set aside, and that the respondents
be directed to produce the original CDRs with original certificates and
the original correspondence which the ATS had with various mobile
telephone companies, which CDRs were collected during the course of
investigation to trace the location of the appellantsaccused at the time
of incident and further that the defence be allowed to lead the
proposed defence evidence in that regard.'
12 Coming to the circumstances leading to the Criminal
Appeal No.992 of 2012, as aforesaid, the appellants had also cited
some Nodal Officers of the Mobile Service Provider Companies, as
witnesses for the defence, who, as aforesaid, had been summoned
by the trial court. It seems that one such Nodal Officer was
examined on 16.8.2012. But the other Nodal Officers, who had
appeared before the court, submitted, that they had not brought the
relevant documents with them as the period for which the details
were called for, was not mentioned in the summons. On this, the
defence gave the relevant details, when the learned SPP once again
raised his objection to such evidence 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.
13 The advocates for the appellants / accused doubted the
correctness of the claim of nonavailability of the relevant record
and prayed to the court that the Nodal Officers be directed to file
affidavits in support of the letters. The learned Judge observed that
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'such a direction could not be given as the witnesses had appeared in
response to summons and had filed letters expressing their inability to
produce the CDRs, in view of the guidelines by the Department of
Telecommunications (DOT) and the order of the court.' Immediately,
an application was made in writing (Exhibit 3034) by the advocates
for some of the accused that the said witnesses be directed to file
affidavits in support of the contents of their letters that CDRs are
maintained for one year only. The learned Judge rejected the
application by holding that the witnesses had been called by the
defence and they had expressed their inability to produce the
documents asked for and that they could not be compelled to file an
affidavit.
14 It is, being aggrieved by the said order of rejection, that
the appellants have filed Criminal Appeal No.992 of 2012, praying
that the order dated 21 August 2012 passed by the learned Trial
Judge, be quashed and that the Trial Judge be directed to issue
directions to the Nodal Officer cited by the defence to retrieve the
data of the CDRs called for, by the defence, and to produce the
CDRs of all the mobile telephones which were used by and/or were
in possession of the appellants, as mentioned in the list at Exhibit
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2891 before the Trial Court along with necessary certificate,
correspondence in that regard with the ATS Officer etc. It is prayed
in the alternative that the defence be allowed to examine the Nodal
Officers cited by the defence and their Information Technology
Officers.
15 I have heard Dr.Yug Choudhary, learned counsel for the
appellants. I have heard Shri Darius Khambatta, learned Advocate
General, on behalf of the State of Maharashtra.
16 By consent, it was decided that the appeals be heard
finally at the stage of admission itself. By consent, calling for
Record and Proceedings was dispensed with.
17 Before proceeding further, it may be observed that so
far as the prayers in Criminal Appeal No.992 of 2012 are concerned,
the learned Advocate General submitted that he has no objection if
the relevant record is permitted to be summoned from the
concerned Telecom Companies / 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
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appropriate directions are given to the trial court with respect to
bringing the evidence in question on record.
18 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 statement about the unavailability of the CDRs
came to be made, is reasonable and justified.
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19 A reference to the cell phones and the records of call
etc. was first made by the Investigating Agency in the course of
investigation itself, the details thereof are given by the appellants as
under.
a) In the remand application dated 17 August
2006 seeking remand of the accused nos.1, 2 and
3, it was mentioned 'that the accused nos.2 and 3
(appellant nos.2 and 3 herein) had been found in
possession of cell phones and that their call records
are also obtained for the purpose of comparison of
other arrested including the accused no.1'.
b) In the remand application dated 17 August
2006 seeking remand of the appellant no.4
Ehtesham, among other things, it has been
mentioned that a mobile phone from his brother –
one Ishtiyad Mohd. Ansari had been seized and
that this requires further interrogation and
'recovery of data' from the said mobile phone.
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c) In the remand application dated 22 August
2006 in respect of appellant nos.7 and 8
Mohammad Sajid Ansari and Abdul Wahid Din
Shaikh respectively, it was mentioned that the
accused no.8 used to give his mobile phone
(bearing a particular number) for contacting the
other members of LashkareToiba outside India
on behalf of accused no.7.
d) Again, in the remand application dated 25
September 2006 with respect of accused nos.1 to
9, it was, inter alia, mentioned that the accused
no.1 had been to Pakistan where he had
undergone training in handling of sophisticated
firearms and explosives, and that “he had used
the mobile phone and email addresses for
communicating with those persons (persons in
Pakistan) and passing on message. The call
records of his mobile phone are being analyzed.”
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e) In another remand application, also dated
25 September 2006, in C.R.No.87 of 2006 of
Bandra Police Station, it was inter alia, mentioned
that the brother of the accused no.2 Dr.Tanvir had
surrendered a cell phone to the Investigating
Agency. It was also mentioned that mobile phone
used by the accused no.4 Ehtesham Kutubuddin
Siddiqui was seized from him, and that the same
was sent to Forensic Laboratory, Hyderabad for
examining and extracting information in it. It was
also mentioned that in the house search of the
accused no.6 Shaikh Mohammad Ali Alam
Shaikh, inter alia, one mobile phone 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.'
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20 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 chargesheet 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 purpose of trial.'
21 Again, on 24 November 2010, the appellant no.1 filed a
similar application (Exhibit 690) seeking a direction to the
Investigating Agency to furnish the CDRs of his mobile phone
collected by them during investigation, as the accused wanted to
rely on the said CDRs for his defence and that the Investigating
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Agency may tamper with the records. It was further mentioned in
the said application that the records support the defence of the
accused of alibi. The reply to this, from the Special Public
Prosecutor was to the effect that the records were not 'relied upon
by the ATS', 'that they were not part of the records', 'that
assuming without admitting that even if there is any such
record, the original shall always be in the custody of the service
providers'. The application (Exhibit 690) made by the appellant
no.1 Kamal Ahmed Mohammed Vakil was rejected, by a detailed
order dated 15.12.2010.
22 The Investigating Officer was cross examined as
witness no.186 for the prosecution. In his evidence, he had given a
number of admissions to the effect that the cell phone numbers
pertaining to the accused were disclosed during the investigation; that
he had been made aware that the CDRs of the mobile telephones
could provide the location of the phone when the calls were made
or received, that PI Wadke's staff was analyzing the data in the CDRs
etc.
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23 Dr.Chaudhary, learned counsel for the appellants
vehemently contended that the claim that the CDRs are not
available with the Investigating Agency, cannot be believed. He
submitted that the statements made by the Special Public
Prosecutor from time to time, before the Trial Court indicate that
the availability of such record with the Investigating Agency was
never denied. He also submitted that the matter cannot be viewed
lightly and that this Court would be required to examine all the
relevant aspects, and issue appropriate directions in the matter. He
submitted that among other things, whether the refusal of the Court
to summon the documents earlier was proper and legal, would also
need determination by this Court.
24 I have carefully considered the matter.
25 According to the defence, the relevancy of the CDRs
lies in the following:
(a) That the CDRs would show that some of the
appellants who are said to be the persons who actually
planted the bombs were, at the material time, either not in
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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, interse
amongst the accused, except those who are related to one
another, or are coaccused 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
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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 falsify the confessions
recorded by the police by showing that the phones were
never switched off, and were constantly in use in a normal
way.
(f) That, even after the date on which the accused were
shown as arrested, and their mobile telephones were
seized, such phones were being used by the police for
illegal activities, and that the phones were even being re
charged by the police.
26 Thus, that the CDRs, on the face of these claims of the
appellants, are certainly relevant. That, they would be admissible
in evidence, cannot be doubted. Anyway, as the relevancy and
admissibility thereof is not disputed before this Court, it is not
necessary to discuss this aspect any further.
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27 The next question that needs consideration is whether
the appellants were entitled to call for the CDRs even before they
had been called upon to enter on their defence. This requires
consideration because while refusing the prayer to issue a search
warrant, the trial court had relied upon the fact that previously the
applications made by the appellants calling for such records had
been rejected by it. Though not directly relevant for the purposes
of the present appeals, this issue needs to be considered as it relates
to the fairness of the prosecution and the necessity of ensuring that
every accused gets a fair trial. It is not too late to clarify the legal
position in that regard, as the trial is still not over; and if there has
been a denial of a fair opportunity to the appellants, to put forth
their defence effectively earlier, it can be still be cured now. It
ought to be remembered that denial of a proper and effective
opportunity to an accused to defend himself, which includes
providing an opportunity to adduce evidence in defence, vitiates
the trial.
28 The first application for calling the CDRs was made by
the appellant no.2 Dr.Tanvir Ahmed Mohd.Ibrahim, as back as on
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15 June 2007. The reply of the Special Public Prosecutor to that
application was 'since the documents demanded by the accused/
appellants are not relied upon the chargesheet, there is no question of
furnishing copies thereof to the accused'. In view of this, the Trial
Court did not direct the copies of the CDRs to be furnished to the
accused persons.
29 On 9 November 2009, when the prosecution evidence
was being adduced, the appellant no.4 Ehtesham filed an
application (Exhibit 256) stating 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 chargesheet. 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
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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.
30 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 by them during investigation. He categorically
stated in the said application that he wanted to rely on those CDRs
for his defence and that the ATS may tamper with the records. It
was further submitted that these records would support the defence
of alibi. He submitted that he wanted the CDRs for the purpose of
effective cross examination of PW no.57 which was, it appears was
then going on. The reply of the Special Public Prosecutor was as
follows :
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It is respectfully submitted after having
taken instructions for the IO ACP Shri Patil
(Now retired) It has been confirmed that
such Print Outs are not relied upon by the
Prosecution and are not a part of the record.
There is no question of any likelihood of
tampering with such record as alleged by the
defence. Assuming without admitting that
even if there is any such record the original
shall always be in the custody of the service
provider and such record can certainly not be
tampered. It has further to be appreciated
that assuming the existence of any such
record the present witness has nothing to do
with it or no role to play in respect thereof
which will in any way affect the testimony of
this witness one way or the other.
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31 On this, the Learned Judge passed a detailed order
rejecting the said application. He was of the view that the
application made by the said accused was misconceived, and that
such record was not necessary for the purpose of crossexamination
of PW 57 who was an independent witness. After considering the
decision of the Supreme Court of India in Sidharth Vashisht @
Manu Sharma Versus State (NCT OF DELHI), (2010) 6 SCC 1,
the learned Judge came to the conclusion that the duty to supply
the documents to the accused would be limited only to the
documents on which the prosecution relies.
32 In my opinion, the learned Judge failed to comprehend
the correct legal position with respect to the rights of an accused to
have documents summoned or produced before the Court for the
purpose of his defence, and confused the same with the right of the
accused to receive the copies of documents as laid down in Section
207 of the Code. When the appellants wanted the documents to be
produced on the ground that the same would prove their innocence,
or facilitate their defence, that those documents were not relied upon
by the prosecution was an irrelevant consideration. The question
which the Learned Judge should have addressed himself to was
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whether the accused would be disentitled from calling for such
documents on the ground that these documents are not relied upon
by the prosecution.
33 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 crossexamination of a witness, the crossexaminer would
require certain documents in his hand. Without the availability of
such documents, the rights and obligations of a crossexaminer
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 can be supplied, but if they
are not, the court would be expected to use the powers under
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Section 91 of the Code, whenever it finds it necessary or desirable.
To overcome an unfair or unjust result, the court certainly would be
entitled to exercise the powers under Section 91 of the Code, which
section is widely framed and contains nothing to indicate otherwise.
It is not that the documents called for by the accused, must be
called by the court, just for asking, but, surely, that the prosecution
is not relying on such documents cannot be a consideration that
should weigh in deciding such application made by an accused.
34 The right of an accused person to summon the
documents on which he relies, was considered by the Rajasthan
High Court in Dhananjay Kumar Singh Versus State of Rajasthan,
2006 Cr.L.J 3873. In that case, after extensively considering the
provisions of Sections 91, 172, 173, 207 and 243 of the Code, and
Sections 145, 159, 161, 162 and 165 of the Evidence Act, the
Rajasthan High Court concluded that the powers under Section 91
of the Code were wide enough even to summon the case diary at
the instance of the accused, despite the bar contained in subsection
(3) of Section 172 of the Code. It was held that Section 172(3) did
not limit the jurisdiction of the Code under Section 91 of the Code.
This indicates how wide the scope of Section 91 is.
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35 In the instant case, considering the relevance of the
CDRs, and the importance thereof from the point of view of the
appellants, it appears, that the Trial Court ought to have called for
those documents even earlier when prayer to cause the production
thereof had been made by some of the appellants. The concept of
fairness would require such documents to be given to the accused
persons at the earliest when they had been called for, by them.
These documents had been collected by the prosecution in the
course of investigation, as per the claims made by the investigating
agency from time to time, and formed a part of the record of the
investigation. (It was nobody's case at that time that the
prosecution did not have such documents, or that the documents
had been destroyed by them, and at any rate, the court did not
refuse to summon the documents on the basis that the prosecution
did not have such documents.) Why was the prosecution then not
relying on those documents, which, as per the claims 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.
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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.
36 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 been laid
down by Apex Court in the aforesaid case, may be examined. In
paragraph no.18 of his order, on the application (Exhibit 690) the
learned Judge quoted the observations made by Their Lordships of
the Supreme Court in paragraph no.220 of the reported judgment
in Manu Sharma's case (supra) but ignored what has been laid
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down in the subsequent paragraphs and even earlier. The ratio of
the aforesaid decision cannot be said to be that the accused is not
entitled to seek copies or the production of documents on which the
prosecution does not rely, for the purpose of establishing or supporting
his defence. What the aforesaid judgment lays down is that so far as
the documents which are relied upon by the prosecution are
concerned, there would be no question of not furnishing copies
thereof to the accused, and it would be the statutory duty and
obligation of the prosecution as well as the Court to see that the
accused is furnished with the copies of all such documents; but this
positive assertion cannot be construed as laying down a negative,
namely, that the accused under no circumstances can seek copies or
production of documents on which the prosecution does not rely. All
that the judgment lays down is that with respect to the documents,
which are not relied upon by the prosecution, there being no
statutory duty cast upon the prosecution to furnish such documents
to the accused, the question of furnishing copies of such documents
would depend on what would be fair and just in a given situation.
That the documents relied upon by the prosecution must essentially
be furnished to the accused, does not mean that other documents,
howsoever important they may be from the point of view of the
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accused, need not be given to him though available with the
prosecution. The learned Judge noted the observation made by
Their Lordships of the Supreme Court of India to the effect that 'the
role and obligation of the prosecutor particularly in relation to
disclosure cannot be equated under our law to that prevalent under
the English system ..........”, (It is on this observation that reliance
was placed even by the learned Advocate General before this Court)
but the further observation made be Their Lordships in the same
paragraph to the effect that 'at the same time, the demand for a fair
trial cannot be overlooked' was not taken into consideration. While
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.
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“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)
37 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.216 to 221 in Manu Sharma's case, it was observed
that 'the concept of a free and fair trial, painstakingly built up by
the Courts on a purposive interpretation of Article 21 of the
Constitution was much larger and was not limited only to the
compliance with the provisions of section 207 of the Code.' Their
Lordships, inter alia, observed that the individual notion of
prejudice, difficulty, or handicap, in putting forward a defence
would vary from person to person and there can be no uniform
yardstick to measure such perceptions. Their Lordships further
observed :
“It is not for the prosecution or for the
court to comprehend the prejudice that
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is likely to be caused to the accused.
The perception of prejudice is for the
accused to develop and if the same is
founded on a reasonable basis it is the
duty of the Court as well as the
prosecution to ensure that the accused
should not be made to labour under any
such perception and the same must be
put to rest at the earliest. Such a view,
according to us, is an inalienable
attribute of the process of a fair trial
that Article 21 guarantees to every
accused.” (Paragraph 20 of reported
judgment)
In that case, Their Lordships allowed the appeal directing inspection
of unmarked and unexhibited documents to be given to the accused
by the Trial Court before the examination of the accused under
section 313 of the Code, would be completed.
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38 Thus, the previous orders passed by the Trial court (on
Exhibit 256 and Exhibit 690) were based on an erroneous
interpretation of the Law.
39 The prosecution has been unfair in opposing the
applications on grounds which were not justified in law. The stands
taken by the prosecution were varying, and at times conflicting.
This gives an impression that, maximum obstacles and difficulties in
the way of the defence procuring the relevant documents, were
intended to be created. The Investigating Officer's stand that he
does not have them and the stand of the ATS head that he was not
connected with the ATS at the material time, and that, therefore, he
did not know whether there were any such documents, and that if at
all they were there, they must be with the Investigating Officer, exhibit
an intention of somehow preventing the appellants from being able
to produce the relevant evidence before the court. The objection
for obtaining the CDRs from the mobile service 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.
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40 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.
41 The contention of Dr. Chaudhary, the learned counsel
for the appellants, that the claim of the prosecution to the effect
that they were never having hard copies of the CDRs in their
possession, and that the soft copies that had been collected, have
been destroyed, is apparently false, and cannot be believed, needs
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to be seriously considered. It may be observed that even before
this Court, this had not been put forth when the arguments in the
appeal commenced. Some vague statements about the
unavailability of such CDRs were earlier made and it is only when
the Court directed to state the facts by filing the affidavit that the
affidavit of PI Sunil Wadke was filed.
42 In order to be able to get certain aspects clarified,
though the hearing of the appeal was completed, and the matters
were closed for orders after calling the copies of the case diaries
from the Trial Court, while glancing through the case diaries,
certain facts were observed in view of which, it was thought
necessary to seek certain clarification from the prosecution. It is
thereafter that the affidavit of S.L. Patil – the Investigating Officer –
has been filed.
43 I have considered the contents of the said affidavit.
Indeed, that the Investigating Agency was never in possession of
any print outs, or any hard copies of the CDRs at any time, cannot
be accepted merely on the strength of the affidavits of PI Sunil
Wadke, and the Investigating Officer – Sadashiv Patil. The stand
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taken by the State before this Court leaves several questions
unanswered.
44 In his affidavit, Sunil Wadke has explained what was
the procedure as was prevalent with respect to storage of CDRs by
the technical unit of ATS. According to him, the technical unit of
the ATS used to procure and analyze CDRs of suspected mobile
phones on information received by ATS during the course of
investigation of cases. According to him, the practice was that the
concerned Investigating Officer would orally inform the concerned
Dy. Commissioner of Police who would be the Nodal Officer or PI
Wadke to collect the CDRs from Nodal Officer from the concerned
telecom company. That pursuant to such request, the Dy.
Commissioner of Police or an Officer holding his charge would
authorize PI Wadke to send the email to the Nodal Officer of
telecom company requesting them for such CDRs, which such Nodal
Officer would thereafter email on the email 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
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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 chargesheet in the
present case was filed, which was sometime in the end of November
2006.
45 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.
46 Some of the curious aspects of the matter may be noted
below :
(a) Though at various stages, the prosecution had objected for
the production of the CDRs on various grounds, it had not been
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disclosed to the defence or to the court that no such CDRs were
available with the prosecution, or that they had been destroyed. On
the contrary, the statements made by the Special Public Prosecutor
from time to time while dealing with the applications made by the
applicants indicate that the availability of the material in question
with the prosecution was never denied by the prosecution.
(b) When the documents were not available at all, one would
think that the best reply to an application calling for such
documents would be that the documents are not available. One
would not think that the prosecutor would raise various technical
and legal objections for opposing the production of documents,
which never existed, but on the claim made by the prosecution, this
appears to have happened in the present case.
(c) Though there was no correspondence regarding CDRs, and
no CDRs had been obtained in the course of the entire investigation,
still while directing the classification of the case papers in different
volumes for the purpose of convenience, the print outs of call
details were directed to be kept in Volume VI. Thus, the documents
which never existed, were directed to be kept in a particular volume
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i.e. Volume No.VI. (It transpired during the hearing of the present
appeals that no such volume had been forwarded to the Trial Court,
and the claim is that no such volume ever existed with the
Investigating Agency.)
47 Apart from this, the claim of P.I.Wadke, as per his
affidavit, about the procedure adopted for obtaining the relevant
record and its destruction / deletion also leaves certain questions
unanswered, some of which are :
(i) Whether the police can lawfully seek such information from
the Telecom Companies / Mobile Service Providers in the
manner in which PI Wadke has explained in his affidavit ?
(ii)Whether the Mobile Service Providers can give, in law, such
information in a manner explained by PI Wadke ?
(iii)Whether such communications are treated as official &
formal or unofficial and informal ?
(iv)If such communications sent by and received by the police
are 'informal' and 'unofficial', is such a course permissible?
Will it not give police an opportunity to manipulate the
evidence?
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(v)Whether the information in respect of the CDRs received by
email from various service providers would not be converted
into hard copy by taking print outs thereof ?
(vi)Whether the Inspector incharge 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 email
and about having taken permission to delete the same and/or
of actually having deleted the same from the record?
48 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.
49 I have carefully considered the matter. In my opinion,
it would not be proper for this court to come to a conclusion as
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regards whether the claim put forth by the prosecution, namely : that
the investigating agency never had any hard copies of any CDRs with
it, and that, whatever information it had received from the concerned
Telecom Company / Mobile Service Provider was deleted by it long
back, is true. However, in the light of attendant circumstances, the
claim cannot be easily accepted. It would be proper if the trial
court considers this aspect of the matter in accordance with law.
50 What should happen in a case where, certain
documents are called for from the prosecution, at the instance of
the defence, and the prosecution comes up with a claim that such
documents are not available with it, or have been lost or destroyed,
would depend on the facts of each case. It would be for the trial
court to consider what course is to be adopted in the matter. No
casual approach to the matter would be justified. The ease with
which the Learned Judge believed the claim of unavailability of the
record with the investigating agency as well as with the Mobile
Service Provider Companies is rather surprising. The observations
made by the Supreme court of India in Habeeb Mohammed v/s.
State of Hyderabad AIR 1954 Supreme Court of India 51
indicate that in such cases, it would be open for the accused,
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whenever the claim of documents either not being available, or of
having been destroyed, is made, to challenge such statements, and
that, the court might at that stage, ask the prosecution to support
their replies by affidavits or otherwise. This would be absolutely
necessary because it would be difficult to make the necessary
inquiry after the trial would be over and the matter is brought
before the Appellate court.
51 Even the plea 'that let adverse inference be drawn
against the prosecution' put forth to suggest that an accused will not
be prejudiced by nonproduction of the relevant evidence, will not
necessarily prevent judicial inquiry into the correctness of the claim
of nonavailability or loss. Such plea is sometimes put forth to
prevent a judicial inquiry into the matter, when the prosecution
feels that the adverse inference likely to be drawn by the court from
the nonproduction of the documents called for by the defence,
would not be as adverse as would be likely to be caused to the
prosecution, by production of those documents. What is often
forgotten in such cases that deliberate suppression or withholding
of documents which an accused would want to be produced for his
defence, 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.”
52 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
nonavailability of such record.
53 The impugned orders are clearly wrong. The trial court
should have considered the likelihood of the relevant CDRs being
available with the investigating agency, and ought to have
considered the application for issue of search warrants in the light
of the various stands taken by the prosecution / investigating
agency, in that regard, from time to time. It need not have been at
once satisfied, that there exists no such record which the accused
wanted to get produced. Similarly, accepting the contents of the
letters brought by Nodal Officers, as true, without requiring them to
state the material facts on oath, was also not proper. Further,
whether it was possible to retrieve the data with the help of the
Information Technology Department of the concerned Mobile
Service Provider Companies, needed serious consideration, and the
trial court did not apply its mind to this aspect.
54 It must be emphasized that the appellants are facing a
serious charge and there is every possibility that they or atleast
some of them, would receive a death sentence, on being found
guilty. It is, therefore, absolutely essential that they get a full and
proper opportunity to defend themselves. When the evidence that
is being sought to be given in defence by them, is relevant and
admissible, the claim that such material or evidence is not available,
cannot be accepted, without scrutiny and without making efforts to
secure such evidence, should it be available. This is particularly so,
because, the prosecution had been, all along, averse to the idea of
permitting such evidence to be given, and had been raising various
objections from time to time, to prevent the said evidence from
being brought before the court.
55 The impugned orders are, therefore, not in accordance
with law, and need to be interfered with, in the interest of justice.
56 However, in view of the claim put forth before this
court, that the documents are not available at all with the
investigating agency, what order ought to be passed in these
appeals, needs to be considered.
57 It is now clear that the prosecution has no objection for
the appellants getting the CDRs produced from the Mobile Service
Provider Companies. It appears that even if the relevant data is
deleted, it can be retrieved with the help of Information Technology
Department of the concerned Mobile Service Providers.
Considering the scientific advances made, it appears quite possible
to get the details and particulars of the email by which the CDRs
were called for and the CDRs that were sent by the Mobile Service
Providers on the email 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
nonavailability would be solved. Needless to say that the Court
should provide all the assistance to them by all possible legal means
and methods.
58 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
“antinationals,” and there would be a reluctance on the part of
even an independent witness, to be seen as a person attempting to
help such “antinational” elements. But it ought to be remembered
atleast in a court of Law, that the presumption of innocence which
exists in favour of every accused, does not vanish merely because of
the seriousness of the charge. Infact, in view of the nature and
seriousness of the charge, and that the prosecution is in respect of
such offences, where the higher police officers are involved in the
investigation, the responsibility of the trial court to see that the
appellants get a fair trial, is increased. Any efforts to prevent
judicial scrutiny or examination of the matter in accordance with
law by highlighting the enormity of crime need to be refuted firmly.
The responsibility in that regard is not only of the court, but also of
the Public Prosecutor, who is supposed to be a 'minister of justice'
and who is supposed to represent not the investigating agency but
the State. The duties and role of the Public Prosecutor has been
discussed in several authoritative pronouncements of the superior
courts. It is well settled that a Public Prosecutor must act fairly and
fearlessly, and with a sense of the responsibility that attaches to his
position. The Public Prosecutor is not a person who has been
associated with the investigation, and therefore, it is no part of his
duties to support at all costs, the theory put forth by the
investigating agency, the correctness of which he himself would not
know.
59 In view of what has been observed by me in the course
of hearing of these appeals, and also, in the course of hearing of an
earlier appeal filed by the appellants (Criminal Appeal No.972 of
2012), temptation to quote the observations made by Rajasthan
High Court in the aforesaid case of Dhananjay Kumar Singh
(supra), in the context of the concept of fairness and the duty of
disclosure, cannot be avoided. After considering the various
provisions in the Code and the Evidence Act, this is what Rajasthan
High Court observed :
Despite the legal provisions, despite the case law, there
is still a school of thought which postulates that the
police and the prosecution can withhold information both
from the accused and the Court. According to this
thinking, in case the prosecution does not wish to rely on
the statements of certain 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 sate 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
relevant evidence in favour of the accused is not supplied,
we would be creating “Kangaroo Courts” and weaving an
illusion of justice. Such Courts and such illusions are an
anathema to the judicial sense of fair play.
( Paragraph 28 of the reported judgment) (Emphasis
supplied).
Moreover, the investigating agency and the prosecution
both represent the State. Every action of the state is
legally required “to be fair, just and reasonable”. In
case, the investigating agency and the prosecution
withhold any evidence in favour of the accused from the
accused, they are not being fair, just and reasonable with
the accused. Therefore, their action would be in
violation of Article 14 of the Constitution of India.
Article 21 of the Constitution of India also requires that
the procedure established by law should be fair and
reasonable. A procedure which permits the withholding
of evidence which is in favour of the accused from the
Court and from the accused, cannot be termed as “fair
and reasonable”. Thus, such a procedure would be in
violation of Article 21 of the Constitution of India.
(paragraph 29 of the reported judgment) (Emphasis
supplied)
Furthermore, in every judicial proceeding the parties are
expected to come with clean hands. By withholding the
evidence without any legal justification, the prosecution
would be hiding vital facts from the Court. It would,
thus, come to the Court with unclean hands. The
prosecution is expected to reveal the whole truth and
nothing but the truth to the Court. Neither the
investigating agency, nor the prosecution can be
permitted to keep the Court in the dark. After all, halfbaked truths are unpalatable to the judicial taste.
(paragraph no.30 of the reported judgment) (Emphasis
supplied).
Undoubtedly, it is the duty of the court to discover the
truth of the case. The courts are empowered to discover
the truth. In its quest for the truth, the Court should
not leave any stone unturned. In case, the Court is of
the opinion that the application under Section 91 of the
Code is genuine and has not been moved with ulterior
motive of delaying the trial, the Court must exercise its
jurisdiction and direct the production of the document
including the case diary. The Criminal Court should keep
in mind that justice should not only be done, but must
appear to be done. In case the accused is denied access
to evidence which is in 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.
60 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.
61 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 Trial Court shall permit the defence to
examine the Nodal Officers cited as witnesses for
defence and/or the Officers from the Information
Technology Officers of the mobile service providers, in
question.
(iii) The Trial Court shall consider in the light of such
evidence, as may be adduced, whether the required
data can be retrieved by taking assistance of the
experts in Information Technology. For coming to a
conclusion in this regard, the Trial Court may, on its
own, examine an expert in that field, if necessary by
calling him as a Court witness.
(iv) The Trial Court may take all reasonable steps as
may be necessary to ascertain whether the CDRs
and/or information contained therein, can be made
available; and in case the Trial Court comes to the
conclusion that it is possible, it shall permit such
evidence to be brought on record, if so desired by the
appellants, as and by way of defence evidence, subject
to its relevancy and admissibility.
(v) The Trial Court shall summon PI Sunil Wadke and
Investigating Officer Sadashiv Patil for examining
them, with respect to the contents of the affidavits filed
by them before this Court. The Court shall be free to
examine them by exercising the powers under section
311 of the Code and section 165 of the Evidence Act.
The Court shall also grant an opportunity to the
appellants, as well as to the prosecution to examine or
crossexamine these witnesses, as the case may be.
(vi) After considering the evidence of PI Wadke and
further evidence of the Investigating Officer Sadashiv
L. Patil, as may be adduced, the Trial Court may
consider the prayer of the appellants to issue a search
warrant to search for and seize the relevant documents
and produce the same before the Court, afresh, as may
be required by the appellants.
62 Certified true copies of the Affidavits filed by P.I.Wadke
and Investigating Officer S.L.Patil in this court, be forwarded to the
trial court, along with the writ of this order.
63 The Trial court shall proceed further with the trial
expeditiously.
64 Both the appeals are allowed in the aforesaid terms and
to the aforesaid extent.
(A. M. THIPSAY, J.)
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