Gujarat High Court
Moin @ Monu Aminbhai Gajipura(Memon) vs State Of Gujarat on 18 June, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/9907/2019 ORDER DATED: 18/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9907 of 2019
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MOIN @ MONU AMINBHAI GAJIPURA(MEMON)
Versus
STATE OF GUJARAT
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Appearance:
MR HARSHIT S TOLIA (2708) for the Applicant(s) No. 1
MR PARTH S TOLIA (5617) for the Applicant(s) No. 1
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/06/2021
ORAL ORDER
1. By way of this petition, the petitioner has prayed for the following reliefs:-
"(A) Your Lordships be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned order dated 23.10.2019 passed by the Ld. 5 th (Ad-hoc) Additional Sessions Judge, Veraval, District :
Gir Somnath on application below Exh.159 in Sessions Case No.19 of 2018 and further be pleased to grant the application Exh.159 as prayed for by directing the investigating officer to furnish the CDs / DVDs and CDR to the petitioner - accused, as prayed in application Exh.159, in the interest of justice.
(B) Your Lordships be pleased to stay the further proceedings of Sessions Case No.19 of 2018 pending in the Court of Ld. 5th (Ad-hoc) Additional Sessions Judge, Veraval, District : Gir Somnath, pending the admission, hearing and final disposal of the petition, in the interest of justice."
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2. Learned advocate Mr. Tolia appearing for the petitioner submitted that the Court below has not appreciated the provisions of Section 207 of Cr.P.C. in its proper perspective inasmuch as the said provision does not give an exception that electronic record should not be provided to the accused on the ground that the same may violate the privacy of anyone. It was submitted that for ensuring a fair trial, an opportunity ought to have been accorded to the accused to defend himself by providing him with the copies of the CDs / DVDs / CDR. In support of his submission, he placed reliance upon the decision of the Apex Court in the case of Tarun Tyagi v. C.B.I., (2017) 4 SCC 490, more particularly, on the observations made in paragraph-10, which reads thus:-
"10. It is clear from the above that the CBI had seized some hard disks marked Q-2, 9 and 20 from the premises of the appellant which contained the source code of the data recovery software. Defence of the appellant is that this source code was exclusively prepared by him and was his property. On the other hand, case of the prosecution is that the recovered CDs are in fact same or similar to the software stolen in 2005. In a case like this, at the time of trial, the attempt on the part of the prosecution would be to show that the seized material, which contains the source code, is the property of the complainant. On the other hand, the appellant will try to demonstrate otherwise and his attempt would be to show that the source code contained in those CDs is different from the source code of the complainant and the seized material contained the source code developed by the appellant. It is but obvious that in order to prove his defence, the copies of the seized CDs need to be supplied to the appellant. The right to get these copies is statutorily recognised under Section 207 of the Code, which is the hallmark of a fair trail that every document relied upon by the prosecution has to be supplied to the Page 2 of 3 Downloaded on : Sat Jun 19 06:25:18 IST 2021 R/SCR.A/9907/2019 ORDER DATED: 18/06/2021 defence/accused at the time of supply of the chargesheet to enable such an 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 up to this point even by the prosecution. The only apprehension of the prosecution is that if the documents are supplied at this stage, the appellant may misuse the same."
3. It is but obvious that in order to prove his defence, copies of seized electronic record need to be supplied to the petitioner, but at the same time the data in the electronic record has to be protected. In other words, before the electronic record is shared with the accused, it should be ensured that the same is "Write Protected".
4. List on 05.07.2021.
In the meantime, if the petitioner prefers an application before the trial Court concerned seeking adjournment, the same may be considered sympathetically.
The concerned Investigating Officer is directed to place on record of this Court a report on the following issues:
(i) Whether the electronic record has been deposited in the proceedings of the Sessions Case by way of muddamal ?
(ii) Whether the "hash value", which can be thought of as fingerprints of files, has been obtained or not ?
( GITA GOPI, J ) PRAVIN KARUNAN Page 3 of 3 Downloaded on : Sat Jun 19 06:25:18 IST 2021