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


 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CORAM : ABHAY M. THIPSAY, J.

10 December, 2012

CRIMINAL APPEAL NO.973 OF 2012 IN MCOC SPECIAL CASE No.21 of 2006 WITH CRIMINAL APPEAL NO.992 OF 2012 IN MCOC SPECIAL CASE No.21 of 2006

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.

ORAL JUDGMENT

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 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