Allahabad High Court
Amarjeet @ Kaluwa vs State Of U.P . And Another on 13 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 07.11.2019 Delivered on 13.11.3019 Court No. - 65 Case :- APPLICATION U/S 482 No. - 39761 of 2019 Applicant :- Amarjeet @ Kaluwa Opposite Party :- State Of U.P . And Another Counsel for Applicant :- Mohd. Afzal Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard Sri Mohd. Afzal, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State and perused the record.
3. This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 22.10.2019 passed by Additional Session Judge, Hapur in Special Session Trial No.89 of 2018 (Amarjeet @ Kaluwa and others under sections 302, 307, 201, 376D, 394, 411 and 120 IPC and section ¾ POCSO Act, 2012 arising out of Case Crime No. 438 of 2018, Police Station Hapur Dehat with a further prayer to direct the court below to send the CD (compact disk) containing videographic statement of injured Nitin recorded under section 161 Cr.P.C. to the Central Forensic Science Laboratory, Hyderabad or any other competent Forensic Science Laboratory for preparing the copy C.D. (compact disk) and to comply the order dated 16.09.2019 passed by this Court in Application u/s 482 Cr.P/C No.30532 of 2019.
4. In the present case the opposite party no. 2 had lodged an FIR to the effect that on 05.09.2018 in the morning when he had gone to bring fodder from his field and his wife and son Himanshu had gone to Delhi dune to some work, his daughter/victim aged about 12 years and son Nitin aged about 10 both were at home. At about 1.30 p.m. his nephew Lalit gave an information to the informant that Nitin has received some knife injury at his neck. Getting this information, he reached home and did not find his daughter there. Soon thereafter, he reached Nandani Hospital where his son Nitin was admitted, on regaining consciousness, his son has disclosed that co-accused Ankur Teli and Sonu @ Pauwa were committing rape upon her sister and when he raised alarm, they had caused injury to his neck by knife and thereafter he concealed himself in the house. When he regained consciousness, he found himself in hospital. When informant reached at home along with police, he found the entire house hold goods scattered all over the place and jewellary etc. was missing. When police party made search of his daughter, her dead body was found in naked and dead condition in the room beneath straw. On this information, Case Crime No. 438 of 2018 was registered against the co-accused Ankur Teli and Sonu @ Pauwa at P.S. Hapur Dehat, District Hapur on 05.09.2019 at about 20.05 hours.
5. After investigation, charge-sheet has been submitted in this case against the accused-applicant along with two other co-accused on 27.10.2018 under the above-mentioned sections and after charge having been framed against the accused persons by now 13 witnesses have been recorded. The statement of PW13 i.e. Investigating Officer Kaushalendra Singh was recorded on 23.07.2019 and when he was being cross-examined at the oral direction of the trial court to the counsel for the applicant, it transpires that one CD was prepared containing the statement of injured Nitin, which was part of the case diary. Therefore, the counsel for the applicant has moved an application before the trial court praying that he be provided a copy of CD which was part of the case diary containing videography of statement of injured Nitin and then only he would proceed to cross-examine the PW13 but the said application was illegally rejected on 22.7.2019. It was categorically stated by PW13 that the first Investigating Officer of this case Surendra Singh has prepared the CD, hence Surendra Singh, was also relevant witness whose statement should be recorded in the present case and the copy of the CD is necessary to be provided to the applicant in order to enable him to put up proper defence. It has also come in case diary that child witness Nitin was not able to speak. Providing a copy of CD was necessary to the accused in order to verify from its perusal as to whether the injured Nitin was influenced or tutored. An application u/s 482 Cr.P.C. No.30532 of 2019 (Amarjeet @ Kaluwa vs. State of U.P. and another) was filed by the applicant which was allowed by this Court vide order dated 16.09.2019 and a direction was issued to provide a copy of the CD to the applicant. Pursuant to the said order, an application was moved by the applicant before the trial court for direction to be issued to the Investigating Officer for providing copy of the CD to the applicant. On 25.09.2019, the Investigating Officer appeared before the trial court along with one constable and informed the court that the CD is found cracked and was not readable. Thereafter, the applicant moved an application on 04.10.2019 seeking a copy of CD to be provided to him from the primary source. On 11.10.2019 the Investigating Officer filed an application before the trial court stating therein that CD in question was found cracked and not readable in computer and that no other copy of CD in question was available and prayed for further passing of an appropriate order. The counsel for the applicant filed a detailed objection against the said application dated 11.10.2019 itself stating therein all the facts and prayed that a copy of CD be got prepared by sending the cracked CD to Forensic Science Laboratory, Hyderabad or any other control Forensic Science Laboratory as there was only mild crack in the said CD. The said application/objection dated 11.10.2019 was kept pending by the trial court and was rejected vide order dated 22.10.2019 illegally holding that the same was moved with an intention to delay the trial and holding that it was not possible to prepare a copy of the said cracked C.D. by sending it to Forensic Science Laboratory and it was also mentioned that the address of Hyedrabad Laboratory was not given in the said application. The said order is illegal and needs to be set aside. The accused is lying in jail, hence there was no question for him to delay the trial and in case copy of the CD is not provided to the applicant, the applicant would suffer great prejudice. Therefore, the impugned order be set aside and direction be issued for preparation of copy of the C.D. and the same be provided to the applicant in compliance with this Court's order passed in Application u/s 484 No.30532 of 2019.
6. Learned A.G.A. has vehemently opposed the argument of the learned counsel for the applicant and again and again it was hammered that the trial court has passed the impugned order rightly and does not suffer from any infirmity.
7. I have gone through the impugned order. The trial court has recorded in it that the case is running for defence evidence and during this period an order was presented from the side of the applicant passed by this Court and in compliance with the said order, for preparing an electronic copy of CD of the statement of the injured Nitin given under section 164 Cr.P.C, the Investigating Officer of this Case Kaushlendra Singh and Constable 116 Pradeep had appeared with laptop. The Investigating Officer had moved an application for permission for opening the statement of the witness recorded under section 161 Cr.P.C. on CD. When the said CD was opened, crack was found in it and the same could not be read on laptop, due to which copy of CD could not be provided to the accused-applicant. Learned counsel for the applicant prayed that a copy of the said CD be got prepared from Forensic Science Laboratory, Hyderabad. It is further recorded that the learned counsel for the applicant did not file any such paper by which it could be known that a copy of CD which had got cracked, could be got prepared by sending it to the Central Forensic Science Laboratory, Hyderabad nor had he given the details of any other central Forensic Laboratory. Further, It is recorded that it appears to the trial court that the learned counsel for the applicant was asking for a copy of the CD of the said statement which had got cracked deliberately knowing full well that it was not possible to get a copy of the same prepared from Forensic Science Laboratory and hence the said application was nothing but was moved with a view to delay the disposal of this case and accordingly, the said application was rejected.
8. Since the dispute in the present matter involves only legal position to be taken into consideration, hence without issuing any notice to the opposite party no. 2, this application is being disposed of on merits.
9. I would like to rely on interpretation of section 207 Cr.PC by Hon'ble Apex Court in Tarun Tyagi vs. Central Bureau of Investigation, (2017) 4 SCC 490. In this case the facts were that the appellant was said to have stolen "source Code" of a software known as "Quick Recovery" developed by the complainant's company and thereafter put it for sale on the website of the appellant company under the name "Prodatadoctor". A case was registered under section 66 of the Information Technology act 2000 and sections 63 and 63-B read with section 14(b)(ii) of t he Copyright Act, 1957. CBI took up the investigation and seized certain documents and material from the office/residential premises of the appellant after conducting search and seizure. The appellant moved an application seeking release of the seized property which was rejected by the trial court, subsequently in this case charge-sheet was submitted and cognizance was taken. The appellant preferred an application under sections 207/238 Cr.P.C. seeking supply of deficient copies of documents, such as hard disk relied upon by the prosecution. The Magistrate had rejected the application against which an application u/s 482 Cr.P/C was preferred before the High Court, which too dismissed the said application and hence the matter came before the Apex Court. The Hon'ble Apex Court has mentioned in a nutshell, along with charge-sheet filed by the CBI, various documents were enclosed which included hard disk as well, that was seized from office of appellant. Though, copies of all other documents were supplied to appellant but he was not given aforesaid three disks, therefore, he wanted copies of these disks to be provided. It was held that in case like this, at the time of trial, attempt on the part of the prosecution would be to show that the seized material, which contained 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 was 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, copies of seized CDs need to be supplied to the appellant. The right to get such copies is statutorily recognized under section 207 Cr.P.C. 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 up to this point even by prosecution. The only apprehension of the prosecution is that if the documents are supplied at this stage, the appellant may misuse the same. The apprehension of the prosecution is based on the opinion of the Government Examiner (Expert) who has opined that if the cloned copy of the hard disk was required, then the same could be prepared by the laboratory on supply of new hard disk of 500 GB but such cloned copy could not be write protected, meaning thereby that it cannot be changed or removed by a user. Therefore, a direction was issued by Hon'ble Apex Court that in order to comply with the provisions of section 207 of the Code hard disks be supplied to the appellant subject to following conditions:
(a) Before supply the 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)The appellant shall not make use of source code contained in the said CDs or misuse the same in any manner and give an affidavit of undertaking to this effect in the trial court.
10. This Court would also like to rely on V.K. Shashikala vs. State represented by Superintendent of Police, (2012) 9 SCC 771 in which it has been held that a duty is cast on Investigating Officer to evaluate the two sets of documents and materials collected i.e. those supporting prosecution and those supporting accused, and, if required, to exonerate accused at that stage itself. However, it is not impossible to visualise a situation where Investigating Officer ignores seized documents which favour accused and forwards to court only those documents which support prosecution. Thus, if such a situation is pointed out by accused and such documents have in fact, been forwarded to court, it is duty of court to make available such document to accused regardless of whether same may not have been marked and exhibited by prosecution, even after section 207 Cr.P.C. stage in trial has been crossed.
11. On the interpretation made by Hon'ble Apex Court in respect of provision of section 207 Cr.P.C. it is absolutely clear that the CD which has been prepared during investigation by the Investigating Officer and is made part of the case diary, the same would be a necessary document/material to be provided to the accused in order to enable him to prepare his defence and that if during investigation any exculpatory piece of evidence has come on record which would lead to exonerate the accused, and which has come on case diary, the accused would also be entitled to get a copy of the same in order to have fair trial. In the case in hand, I find that there is no ambiguity with respect to the fact that a CD was prepared of the statement of witness Nitin who is said to be a child witness of the occurrence and it is apprehended by the accused that the statement made by the said child witness was given under influence of his parents and was tutored statement, for establishing the said fact, he is claiming that a copy of the CD which was prepared at the time of recording the statement of said witness should be provided to him so that he may prepare his defence. It appears that keeping in view this fact, a Coordinate Bench of this Court vide order dated 16.09.2019 had been pleased to pass an order giving direction that a copy of the said CD be got prepared and provided to the accused-applicant. It is also evident from the fact on record that an application was moved by the accused for being provided a copy of the same before the trial court in compliance with the order of this Court dated 16.09.2019 and pursuant to that Investigating Officer concerned along with a constable had come with a laptop and sealed CD, copy of which was required to be prepared but when the same was got opened after order of the court concerned, it transpires that the said CD had cracked and could not be played which rendered the making of copy of the said CD to be impossible, thereafter the applicant moved an application to the effect that the said cracked CD should be arranged to be sent to Central Forensic Science Laboratory, Hyderabad which is expert in such kind of matters and would certainly show that best efforts were made to get copy of the said CD prepared to be provided to the accused-applicant but the trial court has instead recorded in the impugned order that the accused has not provided any documentary proof to the effect that a copy of such kind of CD can be prepared by the Central Forensic Science Laboratory, Hyederabad nor has he provided the address of the said laboratory. It is also mentioned that accused had not provided the particulars of any other Forensic Science Laboratory where a copy of the said C.D. could be prepared and has accordingly dismissed the application. The said order seems to be erroneous and appears to have been passed in hurry keeping in mind the fact that the said application had been moved in order to delay the disposal of the case though it has been lost sight of by the trial court that the accused himself is lying in prison and he is not enjoying the liberty to bail. I find that the Coordinate Bench of this Court had already passed an order dated 16.09.2019 directing for providing the copy of the said CD, therefore the best possible efforts ought to have been made by the trial court to provide a copy of the same. In my opinion, the trial court ought to have sent the damaged CD to Central Forensic Science Lab, Hyderabad with a direction for preparing a copy of the same, if the same was possible/feasible and in case any report is received from the end of the Central Forensic Science Laboratory, Hyderabad the same could have been taken into consideration. If the copy of the same was not possible to be made, the appropriate order could have been passed taking into consideration the said report.
12. In view of above, the impugned order is set aside and it is directed to the trial court that it shall send the damaged CD to Central Forensic Science Laboratory, Hyderabad for a copy of it to be prepared within a period of 15 days and obtain a report in respect to opinion of the said laboratory within a specified time period to be fixed by it and after receipt of such a report from laboratory, it may pass appropriate order.
13. The application stands allowed.
14. However, in case the opposite party no. 2 has any grievance, he may approach the Court.
Order Date :- 13.11.2019 AU