Madras High Court
State Represented By vs Andasuravindar on 24 July, 2023
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.OP.Nos.26704 and 26705 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.07.2023
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.Nos.26704 and 26705 of 2022
State Represented by
Additional Superintendent of Police,
Central Bureau of Investigation,
Anticorruption Branch,
Shastri Bhavan, Nungambakkam,
Chennai-600 006. ... Petitioner
(in both Crl.OPs)
Vs.
AndasuRavindar ... Respondent
(in Crl.OP.No.26704 of
2022)
Sri Padmanaban Kishore ... Respondent
(in Crl.OP.No.26705 of
2022)
Prayer in Crl.OP.No.26704 of 2022: Criminal Original Petition is filed under
Section 482 of Cr.P.C., to set aside the order dated 29.06.2022 in
Crl.M.P.No.11151 of 2019 passed by the learned IX Additional Special Judge
for CBI Cases, Chennai.
1/14
https://www.mhc.tn.gov.in/judis
Crl.OP.Nos.26704 and 26705 of 2022
Prayer in Crl.OP.No.26705 of 2022: Criminal Original Petition is filed under
Section 482 of Cr.P.C., to set aside the order dated 27.07.2022 in
Crl.M.P.No.11152 of 2019 passed by the learned IX Additional Special Judge
for CBI Cases, Chennai.
For Petitioner : Mr.K.Srinivasan,
Special Public Prosecutor
for CBI Cases
(in both Crl.OPs)
For Respondent : Mr.N.Baaskaran
(in Crl.OP.No.26704 of 2022)
Mr.S.Ashok Kumar
(in Crl.OP.No.26705 of 2022)
COMMON O R D E R
It is a case where the CBI has registered in Cr.No.RC 33(A)2011 of SPE, CBI, ACB, Chennai leading to file a final report against three named persons as accused and three other suspected accused were not sent for trial. The informations collected during the course of investigation, has prima facie provided material to frame charges under Section 120B IPC r/w Sections 7, 12 and 32 r/w 13(1)(d) of Prevention of Corruption Act, 1998.
2. Request to furnish the transcript of the telephonic conversation 2/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 intercepted, is the fulcrum of dispute agitated before this Court by way of two petitions filed by the investigating agency namely CBI. Before dealing with these two criminal original petitions, it is necessary to refer the order passed by this Court dated 01.11.2017 in Crl.RC.No.1125 of 2015.
3. Trial Court order to furnish unedited true certified copies of the intercepted telephonic conversation in audio form to the respondent namely Padmanabhan Kishore who is the second accused in CC.No.3 of 2013 on the file of the learned IX Additional Special Judge for CBI Cases, Chennai. The said Padmanabhan Kishore after receiving the documents relied by the prosecution and supplied to him in terms of Section 207 of Cr.P.C found that the transcript of telephonic conversation relied by the prosecution is edited one and therefore the unedited conversation in audio form need to be furnished to him. He also wants to know whether the interception of the telephonic call was done in accordance with the procedure laid down under law, particularly, Rule 419 A of the Indian Telegraph Act, 1951.
4. The trial Court on considering the request and the counter filed by CBI, partly allowed the application directing the CBI to furnish unedited 3/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 certified copy of all the intercepted phone conversation in audio form. When this order came to be challenged before this court in Crl.RC.No.1125 of 2015 referred above, this Court has recorded that the entire unedited intercepted phone conversation in audio form was submitted to the trial court with a certificate under Section 65B of the Indian Evidence Act, along with memo dated 28.09.2017. Recording the same, this Court has dismissed the revision petition filed by CBI with a direction that the copy of the intercepted phone conversation should be taken in the presence of the experts and copies to be furnished to them within a period of 30 days. Before proceeding further, it is to be recorded that CBI was forced to knock the doors of High Court to file revision petition again, since the respondent Padmanabhan Kishore/A2 filed Crl.M.P.No.11152 of 2019 to reject the memo dated 28.09.2017 filed by CBI stating that the order of the High Court in Crl.RC.No.1125 of 2015 dated 01.11.2017 was passed on misrepresentation of the CBI that the telephonic conversation intercepted by the CBI, during the course of investigation produced before the trial court along with affidavit under Section 65B of the Indian Evidence Act, whereas no such certificate was filed along with the document.
4/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022
5. The CBI has filed detailed counter stating that along with memo dated 28.09.2017 unedited copy of all the intercepted phone conversation in audio form pertaining to the petitioner in a sealed cover along with receipt memo dated 10.09.2016 and certificate under Section 65B of Indian Evidence Act was produced before the Court. Further, the Court while accepting the CD in a sealed cover returned the receipt memo along with certificate under Section 65 B of Indian Evidence Act stating that the certificate under Section 65B is not as per the guidelines issued by the Hon'ble Supreme Court rendered in Anvar P.V /Vs/ Basheer and others (2014) 10 SCC 473 . Thereafter, on 05.03.2018, as per the instructions of the trial Court, a memo was filed along with copy of the receipt memo dated 10.09.2006 and certificate under Section 65 B of Indian Evidence Act and the order of this Court to furnish the unedited conversation been understood as the conversation of the respondent Padmanabhan Kishore same has been furnished to him nearly 742 conversations between the respondent and others in the format of VTM as well as WAD been furnished to the Court before copy of it could be furnished to the accused, to call for records, objection to the memo was filed and order was passed by the trial Court which had led to filing of the revision petition. 5/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022
6. It is contended by the prosecution that the conversation of other accused cannot be disclosed to these petitioners since they are pervasive of those persons involved in it and without the concern, the copies cannot be given and in so far as the accused who wants the copy of unedited copy of the telephonic conversation, they are ready to furnish in this revision petition filed by CBI and few other ancillary issues been agitated on behalf of the respondent Padmanabhan Kishore.
7. Primarily, it is contended that the interception of the telephone itself is contrary to the Telegraph Act and therefore apart from non production of affidavit under Section 65B of Indian Evidence Act, at the time of filing the document, the very manner in which the evidence collected illegally also keeps the document away from purview of judicial scrutiny been inadmissible in evidence.
8. The prosecution cannot withhold documents, they collected during the course of investigation and cheripick documents which are suitable to them and keep the other documents for the consideration of judicial scrutiny. 6/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022
9. The learned counsel appearing for the first accused/Andasu Ravindar who is the petitioner in Crl.M.P.No.11152 of 2019 seeking cloned copy of CD contain unedited details of all the intercepted phone conversation in audio form contended that some of the materials collected in the course of investigation been returned to Banu Sekhar who was initially suspected accused, but, now shown in Column 2 of the final report.
10. This Court, on perusing the records and hearing the counsel, is clear in view that the prosecution should and can furnish documents which are in their possession and recovered during the course of investigation. They cannot be compelled to give a document which is not in their possession and not relied upon by them. If any documents collected in the course of investigation, but, not produced before the Court and returned back to the party from whom it has been collected, it is prerogative of the Investigating Officer to do so and if there is any malafide in it, that can be tested in the course of trial. As far as code of criminal procedure, the stage of investigation completes on filing the final report along with documents collected under Section 207 of Cr.P.C, the accused persons are entitled for documents and 7/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 material evidence relied by the prosecution. Though the statute does not say, copies of the documents not relied should also be furnished to the accused pursuant to the judicial pronouncement of the Apex Court now Rules is amended to the effect that if the accused desires, he shall be permitted to inspect the documents not relied upon. Further, during the course of trial shall be entitled to get a copy under Section 91 of Cr.P.C. Here is the case where the telephonic conversation alleged to have been intercepted in the course of investigation been produced by the prosecution in a form of electronic evidence in a Pen Drive, the unedited copy of the conversation sought by Adasu Ravindar/A1 and Padmanaban Kishore/A2. While the prosecution initially resisted the application that they will furnish only the incriminating portion of the conversation and not the entire conversation, this court has interfered in Crl.RC.No.1125 of 2015 and has directed them to furnish all the unedited telephonic conversation to the petitioner whether relied or not.
11. The learned counsel from either side made attempt to impress upon this court that the Order of this Court dated 01.11.2017 is now been sought to be re-agitated or interpreted in the manner convenient to themselves. While, the prosecution said that the order to furnish unedited telephone conversation 8/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 only in-respect of the petitioner Padmanabhan Kishore. The Counsel appearing for the accused contended that while the order says all the unedited conversation to be furnished that includes the conversation between the other accused also.
12. In this regard, it is profitable to refer the judgment of the Hon'ble Supreme Court rendered in D.P.Chadha Vs. Triyugi Narain Mishra and Others reported in (2001) 2 Supreme Court Cases 221wherein the Hon'ble Supreme Court has held as follows:
"18. The record of the proceedings made by the Court is sacrosanct. The correctness thereof cannot be doubted merely for asking. In State of Maharashtra V.Ramdas Shrinivas Nayak this Court has held (AIR Headnote) " The Judges' record was conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else. The Court could not launch into inquiry as to what transpired in the High Court.
The Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. It cannot allow 9/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of facts as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there".
19. Again in Bhagwati Prasad V. Delhi State Mineral Development Corpn this Court has held: (SCC p.364, para 5) " It is now settled law that the statement of facts recorded by a court or quashi-judicial tribunal in its proceedings as regards the matters which transpired during the hearing before it would not be permitted to be 10/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 assailed as incorrect unless steps are taken before the same forum. It may be open to a party to bring such statement to the notice of the court/tribunal and to have it deleted or amended. It is not, therefore, open to the parties or the counsel to say that the proceedings recorded by the tribunal are incorrect."
13. Fortunately, in this case, the earlier order dated 01.11.2017 been passed by me. It is very convenient to clarify and it is easy and convenient to explain what I intended in my order dated 01.11.2017. The telephonic conversation for that matter any conversation between two individuals cannot be exposed unless law permits and requires. Before that, we must ensure that it will not affect the privacy of the individual and whether should it be allowed to get exposed for the larger interest at the cost of their privacy.
14. It is an act of balancing between public interest and the individual right of privacy. In this case, when the accused asked for unedited conversation this Court was able to see reason behind the request and therefore on 01.11.2017 has passed a specific order that all the conversation without any editing should be given to the petitioner in Crl.MP.No.222 of 2015. In the order the expression ' all ', used to mean all the conversation in which the petitioner is involved. Now, a similar request has been made by the 11/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 first accused also before the trial court and the trial court has also ordered to furnish cloned copy of unedited conversation.
15. The learned Special Public Prosecutor for CBI cases submitted that they have already produced unedited copy of conversation before the Court the 742 conversations recorded involving the petitioner Padmanabhan Kishore. The prosecution ready to furnish copy related by them. In respect of portion not relied, it shall be destructed to the portion of conversation which the accused/petitioner in involved and they are also ready to give the cloned copy of the conversation to Ravindar/A1, copy of the cloned conversation in entirety cannot be furnished since it contains conversation of other accused and persons who are not arrayed as accused.
16. This court finds merit and reason in the submissions made by the Special Public Prosecutor for CBI. Therefore, while disposing the petitions directs the trial court to carry the order of this Court dated 01.11.2017 in letter and spirit in the light of the clarification that all unedited conversation means and refers the conversation between the accused persons who seek for copy and not other conversations found in M.O-I. The exercise of furnishing the copy shall be completed within a period of 15 days from the date of receipt of 12/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 a copy of this Order.
17. Regarding the admissibility of the electronic evidence same to be decided at the commencement of trial or in the course of trial. It is too premature to decide upon its admissibility. As far as Section 65 B certificate which the prosecution say that it was furnished along with memo dated 28.09.2017 and returned for defective format is also disputed fact which has to be tested in the course of trial. For framing charges, these are all not matters for concern and these objections may be considered by the trial court after commencement of trial.
18. With these observations, both these criminal original petitions are disposed of.
24.07.2023 Index: Yes/No Speaking / Non Speaking Order Vv To
1. The IX Additional Special Judge for CBI Cases, Chennai.
13/14 https://www.mhc.tn.gov.in/judis Crl.OP.Nos.26704 and 26705 of 2022 Dr.G.JAYACHANDRAN, J Vv Crl.O.P.Nos.26704 and 26705 of 2022 24.07.2023 14/14 https://www.mhc.tn.gov.in/judis