Karnataka High Court
Basavaraju M U vs State Of Karnataka on 6 February, 2018
Equivalent citations: 2018 (2) AKR 477, (2018) 185 ALLINDCAS 799 (KAR), (2018) 2 KCCR 1902, (2018) 3 ALLCRILR 59
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6TH
DAY OF FEBRUARY, 2018
®
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRL.P. NO. 615/2018
BETWEEN
BASAVARAJU M U
S/O MR. UDDANDAMURTHY,
AGED ABOUT 41 YEARS
OCCUPATION: AGRICULTURE,
RESIDENT OF MARIGUDDA,
KATRUMANE VILLAGE, V VASTARE HOBLI,
CHIKKAMAGALURU-577111
... PETITIONER
(BY SRI. PRASANNA KUMAR P., ADV.)
AND
1. STATE OF KARNATAKA
MALLANDURU POLICE STATION,
CHIKKAMAGALURU RURAL CIRCLE,
CHIKKAMAGALURU DISTRICT,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BULDING,.,
R.BR AMBEDKAR VEEDHI, BENGALURU-01
2. SMT. ERAMMA
W/O MULLAIAH,
AGED ABOUT 39 YEARS,
RESIDENT OF KATRUMANE,
VASTARE HOBLI,
CHIKKAMAGALURU TALUK AND
DISTRICT-577111
... RESPONDENTS
(BY SRI. S. RACHAIAH., HCGP FOR R1
NOTICE TO R2 DISPENSED WITH)
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THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE ORDER DATED 14.12.2017 PASSED BY THE
LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALUR IN S.C.NO.62/2017 THEREBY
REJECTING THE APPLICATION FILED BY THE
ACCUSED/PETITIONER HEREIN U/S 207 CODE OF
CRIMINAL PROCEUDRE, AND CONSEQUENTLY ALLOW
THE SAID APPLICATION
THIS CRL.P COMING ON FOR ADMISSION ALONG
WITH IA.NO.1/2018 THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Learned HCGP takes notice to Respondent No.1.
2. Notice to be issued to Respondent No.2 is dispensed with.
3. The petitioner/accused in SC No.62/2017 has made an application under Section 207 of Cr.P.C. furnishing the statement of the victim recorded under Section 164 of Cr.P.C., particularly the said statement was recorded by means of video graphic method by the jurisdictional Magistrate. It appears, along with the charge sheet, the said video graphed statement was not furnished to the accused. After the accused appeared 3 before the Sessions Court, he made an application for furnishing of the said Compact Disc, under which Section 164 of Cr.P.C. statement of the victim was recorded. The learned Prosecutor before the Court below, has strenuously objected for granting of a copy of the videographic statement of the victim recorded under Section 164 of Cr.P.C. to the accused.
4. The learned Sessions Judge after hearing both sides, rejected the said application mainly relying upon a decision of the Hon'ble Apex Court reported in 2006(3) SCC 771 in the case of Dinesh @ Budha Vs. State of Rajasthan and also on the apprehension that if a copy of the said Compact Disc is provided to the accused, he may tamper with the same or he may misuse the same, affecting the victim's interest. The learned Sessions Judge has observed that, the victim is mentally retarded girl and her statement was recorded by taking the help of an expert and the same was also Video graphed.
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5. Whether the above said grounds relied upon by the learned Sessions Judge are sufficient to deny a copy of the Compact Disc to the accused is the moot question, that required to be considered by this Court.
6. In the decision relied upon by the learned Sessions Judge in Dinesh's case cited supra, the Hon'ble Apex Court has only taken care about non- disclosure of the name of the victim stating that, the name of the victim should not be depicted in any of the papers before the court particularly in the judgment of the court. Therefore, I do not know as to how the learned Sessions Judge wants to drive himself to reject the application on the basis of the above said dictum of the Hon'ble Apex Court, wherein there is only a direction to the court not to disclose the name of the victim in the judgment or in any of the court papers so that, if any person takes a certified copy of the said order/judgment and he would come to know about the conduct of the victim etc., and it may affect her future prospectus. To avoid such unnecessary complications in future, such rider has been put by the Hon'ble Apex 5 Court to all the judges and directed that extra care should be taken by the Judges in not depicting the name of the victim anywhere in the judgment or on any other papers or records of the court. Therefore, I do not understand as to how this judgment will come to the help of the learned Sessions Judge to reject the application filed under Section 207 of Cr.P.C., which is mandatory in nature.
7. In this regard, at this stage, it is worth to refer here the provision of Section 207 of Cr.P.C., which reads as follows:-
"Sec 207- Supply to the accused of copy of police report and other documents.-
In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, 6 excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause
(v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
(emphasis supplied)
8. The rider for not issuing of entire charge sheet papers is only contemplated under two provisos 7 attached to Section 207 of Cr.P.C. The first proviso says that, the statements recorded under Sub-clause
(iii) of Section 161 Cr.P.C. of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the Police officer under Section 173(6) of Cr.P.C. Only that portion which has been requested by the Police shall not be given to the accused. The second proviso states that, if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
9. Except the above two provisos, there is no other law for the time being in force, which empowers the Magistrate to reject the request of furnishing of the charge sheet in its entirety, including all the materials, statements of witnesses recovered by the Police during the course of investigation.
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10. It is also worth to refer Section 164(5A) of Cr.P.C. which empowers the Court to treat the statement made under Section 164 of Cr.P.C. as examination-in-chief itself. Section 5A(b) says that, -
"A statement recorded under clause(a) of Sec 164 CrP.C and a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in Section 136 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial."
Therefore, the sanctity attached to Section 164 Cr.P.C statement recorded with the help of an expert or by way of video-graph is that, that statement itself can be treated as evidence by way of examination-in-chief. Unless the said statement of the witness is provided to him, the accused cannot prepare himself for the defence. Therefore, in that context also, the evidence recorded under Section 164 Cr.P.C either by means of videographic or typographical method, the same has to 9 be provided to the accused, unless there is any exception to Section 207 of Cr.P.C..
11. It is worth to mention here the decisions of the Hon'ble Apex Court reported in: (1) (2012) 9 SCC 771 between B.K. SASIKALA and STATE represented by Superintendent of Police; (2) (2013) 9 SCC 276 between Manjeet Singh Khera and State of Maharashtra; & (3) (2011) 7 SCC 762 between JAHID SHAIKH AND OTHERS and STATE OF GUJARATH AND ANOTHER.
12. In all the above said cases, the Hon'ble Apex Court has categorically made observations discussing with regard to Section 207 of Cr.P.C. and with regard to the entitlement of all the materials by the accused, incriminating documents produced by the prosecuting agency as a matter of right. The court has also observed that irrespective of the fact whether the prosecution relies upon those documents or not, once it is said that they are part and parcel of the charge sheet papers, the accused is entitled for all the materials, 10 which are produced or furnished by the prosecution in order to prosecute the accused.
13. Therefore, the Hon'ble Apex Court has considered it as a mandatory and valuable right of the accused to ask for the copies of the entire charge sheet materials to him u/s.207 of Cr.P.C. irrespective of the fact whether the case is triable by the court of Magistrate or the court of Sessions, whether prosecution propose to rely upon those materials or not.
14. As I have seen, there is absolutely no exception under Section 207 of Cr.P.C., where the court gets jurisdiction to refuse to grant any of such document which is treated as part and parcel of the charge sheet. In this context, it is worth to mention here a decision of the Hon'ble Apex Court reported in 2017(4) SCC 490 [Tarun Tyagi Vs. Central Bureau of Investigation], wherein the similar set of facts are involved almost with reference to providing of Compact Disc, which was relied upon by the prosecution as part and parcel of the charge sheet, wherein the Hon'ble Apex Court has held that,-
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"Criminal Procedure Code, 1973- Ss.207/238 - Compliance with S.207 -
Necessity of - For ensuring fair trial by giving due opportunity to accused to defend himself.
-Case of stealing of "source code" of software relating to data recovery in computers - Conditional order passed for provding seized hard discs to accused, to enable him to defend his case and safeguarding apprehension of prosecution, that accused may misuse the same
-FIR lodged by complainant, alleging that appellant-accused had stolen "source code" of a software relating to recovery of lost data in crashed hard discs of computer, developed by complainant's company when appellant was employee of his company - That appellant, thereafter, made a data recovery software by modifying the stolen code, and put it for sale on the website of appellant company under a different name, thereby receiving remittance from abroad, through various payments gateways, thereby obtaining a total amount of more than 5 crores between 2004- 2008 due to online sale of aforesaid software - CBI took-up investigation and seized certain documents and material from the 12 office/residential premises of appellant after conducting search - charge sheet was filed and cognizance taken by trial court of offences under various provisions of IPC, Information Technology Act and Copyright Act - Appellant moved an application seeking release of seized property, on which trial court directed the investigating Officer to find-out as to whether copies of hard disc in question can be prepared so that appellant is unable to use it till pendency of case - Government Examiner of Questioned Documents (GEQD), Directorate of Forensic Science, Hyderabad, opined that cloned copy of hard disc can be prepared - After receipt of aforesaid report, appellant prepared another application under Ss. 207/238 CrPC, seeking supply of deficient copies of documents, such as hard disc relied upon by the prosecution i.e. Q-2, 9 and 20, which was rejected by Magistrate - High Court affirmed aforesaid order.
- Hence, in a nutshell, along with charge-sheet filed by CBI, various documents were enclosed which included hard disc as well, that was seized from office of appellant, which are Q-2, 9 and 20 - Though, copies of all other documents were supplied to appellant, he was not given aforesaid three discs and appellant 13 wants copies of such discs as well - Appellant's submission is, that as per report of GEQD, cloned copies of such hard discs can be prepared and, therefore, there is no problem in supplying the same to appellant.
- Held, it is but obvious that in order to prove his defence, copies of seized CDs need to be supplied to appellant - Right to get such copies is statutorily recognized under S. 207 CrPC, which is the hallmark of a fair trial, that every document relied upon by prosecution has to be supplied to defence/accused at the time of supply of charge-sheet to enable such accused to demonstrate that no case is made out against him and also to enable him to prepare his cross-examination and defence strategy - There is no quarrel upto instant point even by prosecution - The only apprehension of prosecution is that if the documents are supplied at instant stage, appellant may misuse the same - In view of opinion of expert, it needs to be ensured, that appellant, when given the cloned copy of hard disc, is not able to erase or change or remove the same - If that can be achieved by putting some safeguards, it would be the ideal situation inasmuch as provisions of S. 207 CrPC, which ensure fair trial by giving due 14 opportunity to the accused to defend himself, shall be fulfilled and apprehension of prosecution would also be taken care of.
- Therefore, held, in order to comply with provision of S. 207 CrPC, hard discs marked Q-2, 9 and 20 be supplied to appellant subject to following conditions: (a) before supplying said CDs, contents thereof shall be recorded in Court, in presence of complainant as well as appellant, and both of them shall attest the veracity thereof, by putting their signatures, so that there is no dispute about contents later, thereby removing possibility of tampering thereof by appellant; and (b) appellant shall make use of source code contained in said CDs or misuse the same in any manner and give an affidavit of undertaking to such effect in trial court"
15. In view of the above observation, the court has to provide all the materials collected by the Police during the course of investigation. This case is also having similar set of facts, as in Tarun Thyagi's case (supra) before the Apex court, wherein the Central Bureau of Investigation during the course of investigation, seized the some Hard Discs marked at 15 Q.2, Q.9 and Q.20 from the premises of the appellant and copies of those are ordered to be given to the accused. It is also worth to mention here that, in the said case also same type of apprehension was expressed by the prosecution that, if such documents are given, the same may be tampered/prepared by the Laboratory on supplying of new Hard Disc of 500 GB etc.
16. In the present case also, a conditional order can be passed by the learned Sessions Judge with a rider to the petitioner that he should not misuse or use such documents for any other purposes except for preparing his defence in the case. Further the trial Court can also take care while getting the copy of the said Compact Disc, as per the guidelines of the Hon'ble Apex Court in "Tarun Tyagi's" Case so that it should get a cloned copy which is ordered to be issued to the accused and which cannot be tampered like erasing/adding/copying anything from or into that Disc or to that particular material or tampering the said material in any manner. If such care and caution is 16 taken in this case also, it would remove the apprehension of the prosecution in this case also.
17. In the above facts and circumstances of the case, rejection of the application together under Section 207 of Cr.P.C. by the learned Principal District and Sessions Judge, Chikmagalur, is not in accordance with law and it is much against to the provisions of Section 207 of Cr.P.C. itself. Therefore, in the above circumstances, I am of the opinion that, with certain conditions narrated above, the concerned learned Sessions Judge can order for issuing a copy of the Compact Disc, wherein statement of the victim under Section 164 of Cr.P.C. has been recorded by means of Videographic method, by taking due care and caution while issuing the copy, as noted in the decision of the Hon'ble Apex Court (cited supra) and also in the body of this order.
18. With the above observation, the petition is allowed.
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The order passed by the learned Principal District and Sessions Judge, Chikkamagaluru, in SC No. 62/2017 Dated 14.02.2017 on the application filed by the Accused under Sec 207 of Cr.P.C is hereby set- aside. The said application is allowed. The Principal District and Sessions Judge is directed to provide a copy of the Compact Disc as prayed, by taking due care as per the Guidelines mentioned in "Tarun Tyagi's" Case by the Hon'ble Apex Court and in the body of this order.
In view of disposal of this case, the application-IA No.1/2018 filed for stay, does not survive for consideration. Accordingly, the said application stands disposed of.
Sd/-
JUDGE KGR*