Delhi District Court
State vs 1) Manoj Saxena on 20 August, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0499732009
Sessions Case No. 103/2013
State Versus 1) Manoj Saxena
S/o Late Sh. T.N. Saxena
R/o Pocket Q, H. No. 242,
Dilshad Garden, Delhi.
2) Yogender Malik
S/o Sh. Yashpal Singh
R/o B-47, Gali No.4, Bhagat Colony,
Sant Nagar, Buradi, Delhi.
3) Roop Chand @ Pappu
S/o Sh. Mange Ram
R/o Bhagat Colony,
Gali No.8, Sant Nagar,
Buradi, Delhi.
4) Tarun Dev Tyagi @ Sonu
S/o Jagmohan Tyagi
R/o 337, Gali No.5, Upkar Colony,
Burari, Delhi.
FIR No. : 21/2008
U/s: 120-B and 399 of the IPC
PS: Special Cell
Date of institution of the case : 01.02.2010
Date when the case reserved for judgment : 20.08.2015
Date of announcement of judgment : 20.08.2015
JUDGMENT
1. Manoj Saxena, Yogender Malik, Roop Chand @ Pappu and Tarun Dev Tyagi @ Sonu are facing trial in this Court for offences State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 1/16 punishable under Sections 120B and 399 of the Indian Penal Code (herein after referred to as 'IPC').
2. The trial of this case is at the stage of evidence of the prosecution. Ten prosecution witnesses stand examined. However for reasons recorded hereunder, further recording of evidence of the prosecution witnesses and recording of statements of the accused persons under Section 313 Cr.P.C. are dispensed with as it appears to be a futile exercise.
3. The case of the prosecution as per police report under Section 173 (2) of the Cr.P.C. on 05.05.2008 at about 4pm Insp. Lalit Mohan Negi prepared the rukka in which it was referred that mobile numbers 9891728041, 9891334744, 9212614982, 9873663655 and 9211297823 had been placed under interception with the prior approval of the competent authority. These mobile phones were being used by Sachin Tyagi, Tarun Dev @ Sonu, Manoj Saxena, Joginder and Pappu @ Roop Chand respectively. Tarun Dev Tyagi was previously involved in several cases including murder. Interception of the conversations revealed that these persons were conspiring and making preparations to commit dacoity with the help of other associates including one Mannu. Tarun Dev Tyagi had been arrested on 06.04.2008 in FIR No. 58/08, under Section 25 Arms Act, PS Chandni Chowk, Delhi. However remaining persons continued with their conspiracy. Further information revealed that they were planning to commit dacoity and kidnapping of Gurinder Singh who was owner of petrol pumps at Sanjay Gandhi Transport Nagar and Durgapuri, Delhi.
FIR No. 21/2008, PS: Special Cell 2/16
4. It was further recorded in the rukka that Manoj Saxena was using mobile phone number 9212614982. He was an employee of Gurinder Singh and was providing information to other accused persons regarding his movements and collections of cash at his petrol pumps and business centers. As per the police report / charge-sheet Insp. Lalit Mohan Negi handed over the rukka to Ct. Udham Singh to be given to the duty officer for registration of the FIR. SI Mohan Lal (Retd.) registered the FIR and sent the same for transmission to SI Girish Kumar to whom investigation had been assigned.
5. Insp. Lalit Mohan Negi constituted a police team comprising of Ct Jitender, HC Dev Dutt, HC Pankaj, Ct Satish and SI Girish Kumar on 05.05.2008. The police team reached Sanjay Gandhi Transport Nagar where they met a secret informer who told them that Manoj Saxena would be coming to the petrol pump to meet Joginder and Roop Chand @ Pappu. In the meanwhile FIR and Rukka were handed over to PW10. After sometime, the secret informer pointed out Manoj Saxena, Joginder and Roop Chand @ Pappu who were standing near the petrol pump. The police team tried to associate members of the public but all of them refused except one Dig Vijay Karan PW4. The police team apprehended Manoj Saxena and Joginder immediately. Roop Chand @ Pappu tried to run but was chased by the police team and apprehended. They were arrested vide arrest memos Ex.PW3/A, Ex.PW3/B and Ex.PW3/C and their disclosure statements recorded vide Ex.PW3/G, Ex.PW3/H and Ex.PW3/I. The mobile phones recovered from each of the accused were found with activated SIM Cards. They were taken into possession, put in separate cloth parcels and sealed with seal of GKS vide memos Ex.PW3/K, Ex.PW3/L and Ex.PW3/J. State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 3/16 After used the seal was handed over to HC Dev Dutt.
6. At the instance of Roop Chand @ Pappu a motorcycle bearing registration no. DL-1SQ-3695 was recovered which was seized vide memo Ex.PW3/M. At the instance of Manoj Saxena, another motorcycle bearing registration no. DL-5SX-0385 was recovered and seized vide memo Ex.PW3/N. The accused persons were brought back to the office of the Special Cell. Voice samples of the Manoj Saxena, Joginder and Roop Chand were obtained in the office of Special Cell in audio cassettes. The audio cassettes were put into a pullanda bearing serial no.S1 to S3 and sealed with the seal of GKS and seized vide memo Ex.PW10/G, Ex.PW10/H and Ex.PW10/I.
7. Tarun Dev Tyagi at that time was lodged in Tihar Jail. Upon filing of an application, production warrants were issued and he was produced in Court on 09.05.2005. He was arrested vide memo Ex.PW8/A and his disclosure statement recorded vide memo Ex.PW8/B. One day police remand of Tarun Dev Tyagi was granted. Ins. Girish Kumar along with HC Pankaj Sharma were led by Tarun Dev Tyagi to his house at Upkar Colony Burari from where he got recovered a mobile phone with an activated SIM Card. The same was kept in a separate pullanda, sealed with the seal of GKS and seized. On 10.05.2008, voice sample of Tarun Dev Tyagi was recorded in the office of Special Cell in an audio cassette which was sealed in a cloth pullanda, sealed and seized vide memo Ex.PW10/J.
8. The intercepted conversations of the mobile phones under interception were downloaded by Ct.Satish Kumar in two audio State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 4/16 cassettes and three compact disks (CDs) which were put in separate cloth pullandas marked as A1 to A5, sealed with the seal of GKS and seized vide memo Ex.PW10/A to Ex.PW10/E. Ct Satish and HC Dev Dutt prepared transcripts of the conversations Ex.PW10/F which were handed over to PW10. The CDs / audio cassettes containing the voice samples of the accused and intercepted calls were sent to CFSL, CBI Lodhi Road for forensic examination. The same were examined by Deepak Kumar Tanwar, Senior Scientific officer who gave a report as per which the voices in intercepted calls matched with the voices of the accused persons.
9. IO collected the Customer Application Form (CAF) and Call Detail Records (CDRs) of the mobile phone connections under interception and recorded statements of witnesses. After conclusion of investigation, charge-sheet was filed. By order dated 27.03.2010, charges were framed under Sections 120B and 399 of the IPC to which the accused pleaded not guilty and claimed trial.
10. Till today, the prosecution has examined 10 witnesses. PW1 SI Mohan Lal is the duty officer who recorded the FIR. PW2 HC Hukum Lal had been handed over the rukka by Insp. Lalit Mohan Nagar who had got FIR registered from PW1 and handed over the FIR and rukka to PW10. PW3 ASI Dev Dutt and PW10 Insp. Girish Kumar were members of the police team which had apprehended the accused Manoj Saxena, Yoginder and Roop Chand @ Pappu on 05.05.2008 and effected recoveries from them. PW8 HC Pankaj Sharma had accompanied PW10 on 09.10.2008 with mobile phone was recovered from Tarun Dev Tyagi. PW4 Dig Vijay is the public witness before whom State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 5/16 Manoj Sexana, Roop Chand @ Pappu and Joginder were apprehended. PW5 Gurinder Singh Sikka was the person to whom the accused conspiring to loot and abduct. PW6 Dinesh Kumar is the LDC from Home General Department, GNCT of Delhi who was summoned to produce the interception order dated 03.04.2008. PW7 is Nitin Saxena, owner of motorcycle no. DL-5SX-0385. PW9 is ASI Surender who had taken the audio cassettes and CDs containing intercepted calls and voice samples from MHCM and deposited the same with CFSL, CBI.
11. The case of the prosecution is based primarily on the contents of the intercepted mobile phone conversations of the accused persons. The same is thus electronic evidence. It will thus be pertinent to refer to the law regarding electronic evidence.
12. Section 29A in the IPC was incorporated by way of an amendment by Act 21 of 2000, Section 91 with effect from 17.10.2000. Section 29A IPC defines 'electronic record' to be having the same meaning as assigned in Section 2 (1) (t) of the Information Technology Act, 2000. Section 2 (1) (t) of the Information Technology Act, 2000 defines 'electronic record' to mean data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. Thus electronic record will include sound stored in electronic form or micro film or computer generated micro fiche.
13. Section 65B was also incorporated in the Evidence Act by way of an amendment by Act 21 of 2000, Section 92 with effect from 17.10.2000. In the case of Anvar PV vs. PK Basheer reported in (2014) State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 6/16 10 SCC 473 the Hon'ble Supreme Court considered the provisions of Section 65B and held as under:-
"22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
(emphasis supplied)
14. The judgment in the case of Anvar P.V. vs. P.K. Basheer (supra) was relied upon and followed by the Hon'ble High Court of Delhi in the case of Ankur Chawla vs. CBI, Crl. M.C. No. 2455 of 2012 decided on 20.12.2014 in which it was observed that the certificate under Section 65B of the Evidence Act was mandatory and the same has to be of the date when the electronic evidence is procured.
15. Thus in the case of Anvar P.V. vs. P.K. Basheer (supra) and as followed by the Hon'ble High Court of Delhi in the case of Ankur State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 7/16 Chawla vs. CBI, it has been held that electronic record in the absence of any certificate under Section 65B of the Evidence Act was inadmissible in evidence. If there is any such certificate, it has to be of the date on which such electronic evidence was procured.
16. In the case of Jagdeo Singh and Ors. vs. The State, Crl. A. Nos. 527, 529 and 607 of 2014 (decided by the Hon'ble High Court of Delhi on 11.02.2015) the law on the subject of electronic evidence was reviewed and the judgment in the case of Anvar P.V. vs. P.K. Basheer (supra) explained further. The relevant paras of the said judgment are reproduced as under:
"53. Among the critical pieces of evidence the intercepted conversations on the mobile phones allegedly used by the three accused and the call detail records (CDRs) of those phones. One of the questions that arose in considering the evidence in relation to intercepted calls, which is essentially electronic evidence, is whether the requirement of Section 65B of the Indian Evidence Act (EA) was satisfied.
54. A two-judge Bench of the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 had relied upon this question of law in this case, the CDRs of mobile phones used by the accused were relied upon by the prosecution. The print outs of the CDRs were taken from the computers/servers by mechanical process and certified by a responsible official of the service provider. Although the said official himself was not examined, the witness who identified the signatures of the certifying officer was examined. In the circumstances, it was observed that although the certificate containing the details in terms of sub-Section (4) of Section 65B was not filed in the instant case, that evidence can be led by using Sections 63 and 65 of the Evidence Act. It was further observed that Section 65B of the Evidence Act being a provision dealing with admissibility of electronic records, "there is no bar to adducing secondary evidence under the other provisions of State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 8/16 the Evidence Act, namely, Sections 63 and 65."
55. Recently, a three-judge Bench of the Supreme Court in Anvar P.V. (supra) overruled the above dictum of the judgment of the two-judge Bench in Navjot Sandhu (supra) by holding that Section 65B relating to electronic records being a special provision, "the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law." It was held that "Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record." Even "in the case of CD, VCD, chip, etc. the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible." In Anvar P.V. (supra), in relation to the CDs no certificate had been produced in terms of Section 65B EA. It was held that the electronic evidence in the form of CDs/DVD/Chip shall be accompanied by the certificate "in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
"68.At this stage, it is necessary to understand what should be done to satisfy the requirement of Section 65B EA. It has been reiterated by Mr. Katyal, learned APP, before the Court and in the written submissions that there was substantial compliance with Section 65B EA. This provision is inserted in the Chapter V titled Of Documentary Evidence. It occurs after Section 65 which permits secondary evidence to be given in relation to documents. Both Section 65A which is titled Special provisions as to evidence relating to electronic record and Section 65B regarding Admissibility of electronic records proceed on the major premise that as far as the electronic records are concerned, it may be difficult in many instances to produce original record which would be on a huge server or a server that is unable to be produced before the Court or on a major tower etc. The very purpose of Section 65B EA was to obviate this difficulty. What it State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 9/16 essentially does is it brings secondary evidence to the level of primary evidence in order to make it admissible in accordance with law. All conditions set out in Section 65B (2) and Section 65B (3) EA have to be satisfied.
69. The mandatory requirement under Section 65B (4) is that the certificate produced should satisfy the requirement under Section 65B (4) (a), (b), and (c) and the requirement that they should be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate). The electronic evidence thus produced that is accompanied by such certificate "shall be deemed to be also a document", dispensing with the further proof of production of the original. In other words, there is no escape from the requirement of producing the signed certificate by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities."
"71. There is no certificate issued in terms of Section 65B EA either by PW-1 or anyone else. It is understandable that PW-1 being a police officer and not conversant with the operation of a device used to record the conversations which he was listening, may not be the person capable of giving such a certificate in the first instance. But then there is no certificate by any other person satisfying the requirement of Section 65-B (4), i.e., a person "occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities."
"There was no question of further secondary evidence to be produced in terms of Section 65B. Which is why the Supreme Court in Anvar P.V. held categorically that "Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B." The decision in Navjot Sandhu to the above extent was held to be no longer good law The Court in Anvar P.V. did not stop there. It State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 10/16 further declared: "Thus, in the case of CD, VCD, chip, etc, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record is inadmissible."
"79. In other words, the law is now abundantly clear. If there is no certificate accompanying electronic evidence in terms of Section 65B i.e., such evidence is "inadmissible." This evidence is inadmissible because it does not satisfy the requirement of the law under Section 65B EA. Such evidence cannot be looked into. Consequently, as far as the present case is concerned, the Court is satisfied that the intercepted telephone calls presented in the form of CDs before the trial court which were then examined by the FSL expert do not satisfy the requirements of Section 65- B EA. The net result is that the electronic evidence in this case in the form of the intercepted conversations and the CDRs cannot be looked into by the Court for any purpose whatsoever."
(emphasis supplied)
17. In the case of Jagdeo Singh (supra), the Hon'ble High Court reviewed the law regarding Section 65-B of the Evidence Act and applied it to the facts of the case before it. In that case the prosecution had relied on tape recorded conversations and their transcripts. The Hon'ble High Court was pleased to hold that in the absence of any certificate under Section 65-B of the Evidence Act of a person occupying a responsible official post in relation to the operation of the relevant device or management of relevant activity, the evidence regarding tape recorded conversations had been rendered inadmissible. It was further held that in the absence of any such certificate no further secondary evidence in respect of such conversations could have been given. Hence the said evidence could not be looked into by the Court for any State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 11/16 purpose whatsoever.
18. I shall now refer to the electronic evidence relied upon in this case by the prosecution in the present case. Ex.PW10/F (colly) are the transcripts of the intercepted recorded conversations of the accused persons. The details of the same are as under:-
S. No. Mobile phone numbers involved Date time and duration 1 9891728041 and 9211297823 3.4.2008, 5.38p.m., 4 minutes 2 9891728041 and 9891334744 4.4.2008, 6.13pm, 52 seconds 3 9891728041 and 9891334744 5.4.2008, 12.45pm, 1 minute 2 seconds 4 9891728041 and 9891334744 5.4.2008, 13.50 hours, (duration not mentioned) 5 9891728041 and 9891334744 5.4.2008, 15.24 hours, (duration not mentioned) 6 9891728041 and 9891334744 5.4.2008 (time and duration not mentioned) 7 9891728041 and 9891334744 4.4.2008, 18.12 hours, (duration not mentioned) 8 9891334744 and 9873663655 4.4.2008, 18.15 hours, (duration not mentioned) 9 9891334744 (other number not 4.4.2008, 6.06 pm, mentioned) 43 seconds 10 9873663655 and 9212614982 1/2.5.2008, 11.59pm, 4 minutes 11 9211297823 and 9212614982 2.5.2008, 00.02 hours, I minute 32 seconds 12 9211297823 and 9212614982 2.5.2008, 00.04 hours, I minute 45 seconds State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 12/16
19. Ex.PW10/A is the seizure memo regarding the recording / downloading of the intercepted conversation in respect of mobile number 9891728041 in an audio cassette, the said audio cassette being put in a cloth parcel and sealed with the seal of GKS and the same being taken into possession by the police. No certificate under section 65B of the Indian Evidence Act accompanies the audio cassette in which the intercepted conversation has been downloaded. The same is the case in respect of Ex.PW10/B in respect of mobile number 9891334744, Ex.PW10/C in respect of mobile number 9212614982, Ex.PW10/D in respect of mobile number 9211297823 and Ex.PW10/E in respect of mobile number 9873663655.
20. Ex.PW10/G is the seizure memo regarding recording of the voice sample of Manoj Saxena in an audio cassette, the said audio cassette being put in a cloth parcel and sealed with the seal of GKS and the same being taken into possession by the police. No certificate under section 65B of the Indian Evidence Act accompanies the audio cassette in which the voice sample of the accused has been recorded. The same is the case in respect of Ex.PW10/H in respect of Yogender Malik, Ex.PW10/I in respect of Roop Chand @ Pappu and Ex.PW10/J in respect of Tarun Dev Tyagi.
21. PW10 IO Insp. Girish Kumar in cross-examination has admitted that no certificate under Section 65 B of IEA was obtained at the time of collecting such electronic record. He has also admitted that even the CDRs which are on record in respect of mobile phone conversations are accompanied with any such certificate. There is therefore no dispute that the prosecution has not furnished any State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 13/16 certificate under Section 65B of IEA in respect of the electronic evidence on the basis of which the case of the prosecution is sought to be proved.
22. In the absence of any certificate under Section 65B of the Indian Evidence Act, the electronic record in the form of intercepted conversations of the accused persons are rendered inadmissible in evidence. Even if such a certificate is sought to be produced by the prosecution at this stage, the same will be inadmissible in evidence.
This is for the reason that such a certificate is required to be furnished at the very time electronic record is procured for the purposes of investigation, as held in the above mentioned case law. Thus the moment intercepted phone conversations were downloaded on to audio cassettes / CDs, such a certificate should have been furnished at that very time. In the case of the voice samples, a certificate under Section 65B of the IEA should have been furnished the moment the voice samples were recorded on to audio cassettes / CDs. Even in respect of the CDRs, the IO should have obtained such a certificate of the very date when the CDRs were furnished to him from the records of the respective Telecom Company.
23. As per the version of the prosecution the accused were apprehended and found to be in possession of mobile phone handsets with live connections from which they had conversed with each other while planning to carry out dacoity and to abduct the said Gurinder Singh. The accused persons were not found in possession of any other articles such as firearms to carry out their plans. Mere possession of mobile phones are of no consequence. Three of the accused Manoj State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 14/16 Saxena, Yogender Malik and Roop Chand @ Pappu were apprehended from a place near the petrol pump owned by Gurinder Singh. Even this circumstance cannot by itself the evidence of criminal conspiracy to commit an offence punishable under Section 399 of the IPC. The same also cannot be taken to be preparation to commit dacoity.
24. Apart from the above, we are left with only the disclosure statements of the accused persons. The same are rendered inadmissible in evidence being hit by the bar of Section 25 of the Evidence Act. Even if it can be said that a mobile phone instrument with an active SIM card was recovered in pursuance of the disclosure statement of Tarun Dev Tyagi, the same is also of no consequence as the electronic record relating to the intercepted phone conversations is inadmissible in evidence.
25. As recorded above, the trial of this case was at the stage of examination of Insp. Lalit Mohan Negi, author of the rukka on the basis of which the FIR has been registered. Even if he is examined as a witness or his statement under Section 161 of the Cr.P.C. is read in evidence verbatim, the electronic record on the basis of which the prosecution is based would still be inadmissible in evidence. As the electronic record relating to the intercepted conversations cannot be looked into for any purpose whatsoever, recording further evidence in the trial and then going further to record statements of the accused under Section 313 of the Cr.P.C. would be a futile exercise. The bedrock of the prosecution, i.e. the electronic record cannot even be put to the accused under Section 313 of the Cr.P.C., with the same being inadmissible in evidence. Hence recording of further prosecution State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 15/16 evidence and statement of the accused under Section 313 of the Cr.P.C. is dispensed with.
CONCLUSION
26. In these facts and circumstances, accused Manoj Saxena, Yogender Malik, Roop Chand @ Pappu and Tarun Dev Tyagi @ Sonu are acquitted of the charges framed against them.
27. In compliance of Section 437A of the Cr.P.C., the bail bonds furnished by the accused Manoj Saxena, Yogender Malik, Roop Chand @ Pappu shall remain in force for a period of six months from today. Accused Tarun Dev Tyagi @ Sonu be released from the judicial custody if not required in another matter.
28. File be consigned to the record room.
Announced in the open Court (REETESH SINGH)
on 20th August, 2015 ASJ-02/FTC, PHC/NDD
20.08.2015
State vs. Manoj Saxena & Anr.
FIR No. 21/2008, PS: Special Cell 16/16