Kamal Ahmed Mohammed Vakil Vs. State of Maharashtra [Bombay High Court, 10-12-2012]

Kamal Ahmed Mohammed Vakil Vs. State of Maharashtra [Bombay High Court, 10-12-2012]

Maharashtra Control of Organized Crime Act, 1999 – Penal Code, 1860 – Ss. 302,  307,  326,  436,  427,  120B,  120A,  123,  124 r/w. 34 – Indian Explosives Act – Prevention of Damage to Public Property Act – Indian Railways Act – Unlawful Activities (Prevention) Act 1967 – Right of Accused – Call Data Records (CDRs) – Production of Documents.

# Accused Rights




10 December, 2012


Dr.Yug Mohit Chaudhary i/b Mr.Khan Abdul Wahab along with Ms.Naima Shaikh, Advocate for Appellants. Mr.D.J.Khambatta, Advocate General with Mrs.Revati Mohite-Dere PP with Ms.U.V.Kejriwal APP for the State.


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


# 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 cross-examined, had expressed his inability to produce any such record. The trial court had, on the prayer of the appellants summoned Mr.Rakesh Maria, Head of the Investigating agency i.e., Anti-Terrorism Squad, (ATS) to cause production of the relevant CDRs. In response to the said summons, Mr.Rakesh Maria replied by a communication addressed to the court, that the case was of the year 2006, when he was not connected with the ATS and that, if at all there were any such documents, then it would be only the Investigating Officer of the case, who could have had them. Mr.Rakesh Maria thus expressed his inability to produce any such documents. The Investigating Officer who had been cross-examined 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 appellants-accused 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 non-availability 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 ‘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 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 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.

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.

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 Lashkar-e-Toiba 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 fire-arms and explosives, and that “he had used the mobile phone and e-mail addresses for communicating with those persons (persons in Pakistan) and passing on message. The call records of his mobile phone are being analyzed.”

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.’

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 charge-sheet though they had been in the custody of the ATS. It was claimed in the said application that the CDRs were necessary for a just decision of the case and that the Court should direct the ATS to produce the said CDRs. The Special Public Prosecutor filed his reply (Exhibit 310) stating that the prosecution was required to furnish to the accused only with the copies to those documents that are relied upon, and hence the application be dismissed. The Trial Court dismissed the said application, ‘holding that the production thereof was not necessary or desirable for the 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 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.

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 Mumbai or were at work, or at some other place which is not near the place whether the bombs were planted. That this can be gathered from the ‘tower location’ which would be revealed from the CDRs.

(b) The prosecution has claimed that certain meetings between some of the appellants and other accused had taken place, and that in such meetings, the conspiracy to commit the offence in question was hatched. That, the CDRs would reveal that, at the material time, such accused were not in Mumbai, or at any rate, not at the place where the prosecution claims, they were.

(c) That, there were no telephonic contacts, inter-se amongst the accused, except those who are related to one another, or are co-accused in some other case. That, this would rebut the allegation of all accused having entered into a conspiracy.

(d) That, the CDRs would establish that the accused had been taken into custody by the police weeks before the dates on which they were shown to be arrested. That, this would be relevant in assessing the admissibility and the weight to be attached to the confessions of the accused persons.

(e) That, the CDRs would 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.

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 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 charge-sheet, 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 charge-sheet. The Special Public Prosecutor filed a reply stating that the prosecution was required to furnish the accused with the copies of only those documents that are relied upon by the prosecution, and that the application be dismissed. On this, the application was dismissed with the following order:- Perused Application Ex. 256 by A/4 Ehtecham and say Exhibit 310 given by SPP copy of which is sent to the Accused. In view of the say by SPP that the documents asked for by the Accused are neither forming part of the chargesheet nor are they relied upon by the Prosecution in support of its case, I do not consider that production of the documents asked for is necessary or desirable for the purpose of trial before this court. Hence the order. ORDER Application Ex. 256 is rejected and disposed off.

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 :

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.

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 cross-examination 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 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 cross-examination of a witness, the cross-examiner would require certain documents in his hand. Without the availability of such documents, the rights and obligations of a cross-examiner under Sections 155(3) and 145 of the Evidence Act, cannot be effectively discharged or exercised by him. To overcome such a situation, he can urge the court to supply such documents to him. If they are in the court, copies thereof can be supplied, but if they are not, the court would be expected to use the powers under 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 sub-section (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.

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. 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 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 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.

“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 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)

38. 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. 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.

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 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 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 e-mail to the Nodal Officer of telecom company requesting them for such CDRs, which such Nodal Officer would thereafter e-mail on the e-mail address of ATS. That after receipt of the CDRs, PI Wadke would analyze the same on the request of the Investigating Officer, and if the data would be required for court proceedings, PI Wadke would be required to apply to the Nodal Officer for the hard copy of the same. That if the data was not relevant, then on the instructions of the Dy.Commissioner of Police, it was deleted after filing of the charge- sheet. So far as the present case is concerned, according to PI Wadke, only soft copies of the CDRs were obtained and that the information was deleted about an year after the charge-sheet in the present case was filed, which was sometime in the end of November 2006.

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 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 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?

(v) Whether the information in respect of the CDRs received by e-mail from various service providers would not be converted into hard copy by taking print outs thereof ?

(vi) Whether the Inspector in-charge of the technical unit cell of the ATS would be entitled to delete such information without the permission of the Investigating Officer, or the concerned Dy. Commissioner of Police? Or whether any such permission/s had been taken ?

(vii) Whether there would be any entry – in the case diary or anywhere else – of having received the information by e-mail and about having taken permission to delete the same and/or of actually having deleted the same from the record?

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 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, 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 non-production of the relevant evidence, will not necessarily prevent judicial inquiry into the correctness of the claim of non-availability 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 non-production 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 non-availability 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 e-mail by which the CDRs were called for and the CDRs that were sent by the Mobile Service Providers on the e-mail address of the ATS. If the trial court feels it necessary, it can seek the evidence / assistance of experts to see whether the data said to have been deleted, can be retrieved, and it is possible to find the names of such experts by taking assistance of the officials of Maharashtra Judicial Academy . If, by taking help of the experts in that field, the data can be retrieved, the problem of non-availability would be solved. Needless to say that the Court should provide all the assistance to them by all possible legal means and methods.

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 “anti-nationals,” and there would be a reluctance on the part of even an independent witness, to be seen as a person attempting to help such “anti-national” 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, half- baked 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 cross-examine 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.


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