Delhi District Court
Krishna Kumar vs Central Bureau Of Investigation on 17 December, 2011
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE : ( CENTRAL ) : DELHI.
Criminal Revision No.38/11
Krishna Kumar
H.No.234, Rose Apartment,
Sector - 18B, Dwarka,
New Delhi - 78. ......Petitioner
Versus
1. Central Bureau of Investigation,
Cyber Crime Investigation Cell,
EOUIX, CBI HO 6th Floor,
4th Block, CGO Complex,
Lodhi Road,
New Delhi - 110003.
2. Microsoft Corporation (India) Pvt. Ltd.
Eros Corporate Towers,
5th Floor, Nehru Place,
New Delhi - 110019. ......Respondents
A N D
Criminal Revision No.95/11
State (CBI)
EOUIX, Branch,
4th Floor, New Building,
Lodhi Road, Opp. Scope Complex,
New Delhi - 110003. ......Petitioner
Versus
Crl. Rev. No.38/11 & 95/11 1
Krishna Kumar,
S/o Jai Ram Singh,
R/o DDA LIG Housing,
Flat no.234,
Pocket - B, Sector 18,
Dwarka, and then Sr. Manager (Sales),
K.K. Software Solutions Pvt. Ltd. .......Respondent
J U D G M E N T
This judgment is to dispose of two criminal revision petitions i.e. Crl. no.38/11 instituted by Krishna Kumar - petitioner before this court and Crl. revision petition no.165/11 which was initially filed by CBI before the Hon'ble High Court but ultimately transferred to this court vide order dt. 22.11.2011.
2. Both the petitions have been preferred against 31.01.2011 vide which learned Chief Metropolitan Magistrate has dismissed the application filed by Krishna Kumar - petitioner seeking permission to become State witness / prosecution witness.
3. While dismissing the application filed by Krishan Kumar - petitioner on 28.10.2011, learned Chief Metropolitan Magistrate has observed that substantial part of material was seized from Kamlesh Kumar and his other firm and found to be genuine as certified by three main distributors of Microsoft and the material seized from Krishan Kumar - petitioner has been found to be totally counterfeit.
Crl. Rev. No.38/11 & 95/11 2
4. Learned Chief Metropolitan Magistrate further observed in the impugned order while referring to decision in Ashok Kumar Aggarwal Vs. CBI, 200708 AD Delhi 449 that although the stand of Kamlesh Kumar - accused was not to be seen at this stage (while dealing with the application of the petitioner, seeking permission to become the state witness), but with a view to see that no prejudice was caused to him (Kamlesh Kumar), stand of Kamlesh Kumar was to be seen.
5. In brief, on the basis of a complaint dt.22.12.09, of Sh. Anoop Kumar, Manager (Investigation), Microsoft Corporation India Pvt. Ltd., the CBI had registered the RC/FIR in the matter U/s 406/418/420/486/489/34 IPC read with Sec.66 (b) and 85 of IT Act and 63 of the Copyright Act. It was alleged in the complaint that Sh. Kamlesh Kumar Jha was an Authorized Associate Distributor of Microsoft, having legitimate right to receive Windows Product of Microsoft namely Windows Vista and Windows XP Operation System, to copy genuine product key, however, "A1" allegedly procured counterfeit blank Certificate of Authenticity (COA) and counterfeit media containing infringed software from China and printed the same as genuine upon Vista XP product. It was further alleged that "A1" had used the on line downgrading process from Window Vista for Window XP keys and as such, down graded 3217 vista Keys over the last more than four months, without existence of actual customer and prior activation of the Vista keys. It was further alleged that out of the aforesaid Crl. Rev. No.38/11 & 95/11 3 down graded keys, over 40% were activated to the subsequent down grading, indicating that product did not have any end customer at the time of downgrading. Pursuant to the FIR, raids were conducted at 13 places on 23.12.09, which also included flat no.234, pocketB, Sector 18, Dwarka, New Delhi, the office of applicant Krishan Kumar. The seized material from this place was got examined through expert of Microsoft and some of the material was also sent for GEQD examination. The report of GEQD has not been received so far by the IO, however, the opinion given by Microsoft Expert has probably been received by the IO, which was referred to before this court at the time of consideration on the application of A1 for release of some of the seized articles.
6. In the complaint, complainant has alleged that from the illegal activities and modus operandi of Sh. Kamlesh Kumar Jha it has been found that the genuine product keys, which were in the sole possession and control of Sh. Kamlesh Kumar Jha, were harvested/copied on counterfeit versions of the Complainant's product, in direct and strict violation of the Complainant's IP and licensing rights and duties/obligation/privileges of being a Gold Partner. Further it has been alleged that majority of the genuine product keys of genuine software products of the Complainant that were in the possession of Sh. Kamlesh Kumar Jha were being subjected to illegal and unauthorized harvestation /copying at the instance of Mr. K.K. Jha for sale of counterfeit products as well as genuine tampered products of Crl. Rev. No.38/11 & 95/11 4 the complainant, resulting in loss to the complainant.
In Jasbir Singh Vs. Vipin Kumar Jaggi & Ors. (2001) 8 SCC 289 Hon'ble Supreme Court observed as under : "18. Although the power to actually grant the pardon is vested in the Court, obviously the Court can have no interest whatsoever in the outcome nor can it decide for the prosecution whether particular evidence is required or not to ensure the conviction of the accused. That is the prosecution's job. This was the view expressed in Lt. Commander Pascal Fernandes Vs. State of Maharashtra where it was said :
"..... Ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the Special Judges he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge ( or the Magistrate ) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case."
19. Judged by this standard, the first order of the Crl. Rev. No.38/11 & 95/11 5 Sessions Judge refusing pardon to the respondent no.1 even though it was actively canvassed for by the Special Public Prosecutor, was wrong. It was not for the Sessions Judge to have considered the possible weight of the approvers evidence, even before it was given. In any case, the evidence of any approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if the evidence of an approver is found to be trustworthy and acceptable then that evidence might well be decisive in securing a conviction. The Sessions Judge could not and indeed should not have assessed the probable value of the possible evidence of the respondent no.1 in anticipation and wholly in the abstract." In Ashok Kumar Aggarwal v. Central Bureau of Investigation and Anr. Crl. M. No. 3741 of 2001 decided on 208.2007, Hon'ble High Court observed as under: "15. Section 307, likewise, gives powers to the Court to direct tender of pardon after committal but before the judgment is pronounced. The object underlying these provisions is to allow pardon in the cases where a grave offence is alleged to have been committed by several persons, so that with the aid of the evidence of the person pardoned, the offence could be brought to home as against the rest. The basis of tender of pardon is not the extent of the culpability of the person to whom the pardon is granted. The principle is to prevent the escape of the offender from punishment in the heinous offences for lack of evidence. The principle, which are to govern the cases granting pardon by the court are well settled. There is no bar in granting pardon before the stage of chargesheet. At the stage of investigation, if the accused applies for pardon and the prosecution also supports him, normally the matter is between the Court and the accused and other coaccused have no right whatsoever to intervene or ask for hearing. Crl. Rev. No.38/11 & 95/11 6 The right of a coaccused in respect of an approver rises only at the stage of trial. It is also wellsettled that once prosecution agrees to tender of pardon, the Special Judge would not take upon himself the task of considering the possible weight of the approver's evidence or to determine the propriety of tendering pardon. The law is eloquently explained by the Supreme Court in this case of Lt. Cdr. Pascal Fernandes's case (supra) in the following words: (11) It is follows that the powers of the Special Judge are not circumscribed by any condition except one, namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. There is no provision for the recording of reasons for so doing, nor is the Special Judge required to furnish a copy to the accused. There is no provision for recording a preliminary statement of the person.
(12) There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The powers o conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the section to show that the Special Judge must be moved by the prosecution. He may consider an offence by an accused as in this case. The offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case."
Crl. Rev. No.38/11 & 95/11 7 Object of Provisions of Section 306 CrPC
7. As noticed above, the object underlying provision of Section 306 of CrPC is to allow pardon in cases where the offence is alleged to have been committed by several persons, so that with the aid of the evidence of the person so tendered pardon, the offence is brought to home as against the other accused.
Herein, there are 13 accused persons including the applicant petitioner Krishna Kumar and the applicant intends to provide evidence to the prosecution so that the offence is brought to home as against his co accused.
Basis for grant of tender of pardon
8. It is well settled that the basis of tender of pardon is not the extent of culpability of the person to whom the pardon is granted or by whom the pardon is being sought. The principle for grant of tender of pardon is to prevent escape of offender from punishment in heinous offence due to lack of evidence.
Herein, the applicant intends to provide evidence to the prosecution so that the offence is brought to home as against his coaccused. The prosecution agrees to tender of pardon to the applicant, with the object that due to lack of evidence, which the applicant is going to provide, other offenders would escape from punishment.
Crl. Rev. No.38/11 & 95/11 8
As per decision in Lt. Commander Pascal Fernandes's case, where accused applies for tender of pardon, the Court is to refer the request to the prosecution agency. The power to tender pardon is to be exercised by the Court not on its own behalf but on behalf of the prosecuting agency and that too when the prosecution joins in the request.
Herein, Learned Chief Metropolitan Magistrate, issued notice of the application to CBIprosecution. Upon notice, the prosecution the joined the request of the applicantpetitioner. It is also not case of the prosecution that the applicantpetitioner is the only brain behind the crime. It is not the case where prosecution has desired against grant of pardon. When the prosecution has thought it proper that tender of pardon is in the interest of successful prosecution of the other offenders, whose conviction would not be easy without the testimony of the approver, in view of decision in Lt. Commander Pascal Fernandes's, the Learned Chief Metropolitan Magistrate should have agreed to the tendering of pardon. The Learned Chief Metropolitan Magistrate should not have taken on himself the task of determining the propriety of tendering pardon in the given circumstances.
9. When the Learned Chief Metropolitan Magistrate referred to the plea put forth by the applicantpetitioner in his bail application, the object and principle for grant of tender of pardon was not kept in mind. Even if some other plea had been put forth by the applicantpetitioner in his bail application, Learned Chief Metropolitan Magistrate should have had regard Crl. Rev. No.38/11 & 95/11 9 to the statement made by the applicantpetitioner under Section 164 CrPC wherein he stated that he wanted to assist the investigating agency in catching hold of other persons involved in the present racket of counterfeiting software and he wanted to give information regarding the modus operandi adopted by other accused in committing the offences. He also stated therein that he had made statement voluntarily, the reason being that he wished to come out with true facts. No law prohibits an individual to come out with truth at any stage.
10. As regards statement recorded by Sh. Siddharth Mathur, Metropolitan Magistrate, Delhi, Learned Chief Metropolitan Magistrate has observed that it appeared as if the earlier statement of the applicant made before the Investigating Officer was just read over by the applicant petitioner to the stenographer from his prerecorded statement. This observation made by Learned Chief Metropolitan Magistrate is without any basis.
11. A perusal of statement under Section 164 CrPC recorded by Sh. Siddharth Mathur, Metropolitan Magistrate, CentralII, Delhi on 22.09.2010 would reveal that application under Section 306 CrPC moved by Krishna Kumar accused before Chief Metropolitan Magistrate, Delhi was assigned to the Metropolitan Magistrate on the same day i.e. 22.09.2010 with the direction that statement of Krishna Kumar be recorded on that very date itself. Learned Chief Metropolitan Magistrate did not provide sufficient Crl. Rev. No.38/11 & 95/11 10 time to the Metropolitan Magistrate even to defer the recording of statement for a day or two and as such, the Metropolitan Magistrate had no option but to record the statement on the same day. This Court has gone through the two statements i.e. made before the IO and the other recorded under Section 164 CrPC and found that the latter one cannot be said to have been just read over by the applicantpetitioner, from his prerecorded statement, to the stenographer of the Metropolitan Magistrate.
12. Before recording of the statement, Metropolitan Magistrate explained to Krishna Kumar that he was not required to make confession sought to be recorded on that day and that if he so made, same might be used against him as evidence.
13. The Metropolitan Magistrate also put seventeen questions to the accused/ applicant with a view to ascertain whether he was going to make statement/confession voluntarily or not.
From the answers given by the witness/accused, Metropolitan Magistrate found that Krishna Kumar accused appeared to be normal, without any fear, force or pressure and he was going to make confession voluntarily.
The Metropolitan Magistrate also ensured before recording the statement of accused/applicant under Section 164 CrPC that no police officer was present in the Chamber.
Crl. Rev. No.38/11 & 95/11 11
14. In his statement under Section 164 CrPC, the accused/applicant stated to have made statement voluntarily as he wished to come out with the true facts. At the end, the Metropolitan Magistrate appended certificate to the following effect: "Certified that I have explained to accused/witness Krishan Kumar that he is not bound to make a confession U/s 164 CrPC and that, if he does so, any confession he may make may be used as an evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to accused/witness Krishan Kumar who had made it and he had admitted the same to be correct and it contains a full and true account of the confessional statement made by him."
Therefore, the observation made by Learned Chief Metropolitan Magistrate that the statement under Section 164 CrPC is verbatim identical to prerecorded statement is not justified.
15. Another ground put forth by Learned Chief Metropolitan Magistrate in declining tender of pardon is that similar application was earlier filed by the applicantpetitioner but withdrawn. There is no bar under Section 306 CrPC for filing of a fresh application if the earlier one is withdrawn for one reason or the other, and not adjudicated by the Court.
16. Learned Chief Metropolitan Magistrate has observed in the order that the Magistrate who tenders pardon has to give reasons for the same. In Lt. Cdr. Pascal Fernandes's, Hon'ble Apex Court has eloquently explained that the powers of the judge under Section 306 CrPC are not circumscribed by Crl. Rev. No.38/11 & 95/11 12 any condition except one that the action must be with a view to obtaining the evidence of a person supposed to have been directly or indirectly concerned in or privy to an offence. The other condition is that the disclosure going to be made by the person should be full and true as to himself and as to any other person concerned as principle or abettor. Hon'ble Apex Court specifically laid down that there is no provision for recording of reasons for so doing. Hon'ble Apex Court even went on to observe that even there is no provision for recording a preliminary statement of the person.
So far as the role of the applicantpetitioner and that of Sh. Kamlesh Kumar Jha is concerned, in Ltd. Cdr. Pascal Fernandes's case, Hon'ble Apex Court observed that in that case it was not for the Sessions Judge to have considered the possible weight of the approver's evidence, even before it was given. Hon'ble Apex Court further observed that Sessions Judge in that case could not and indeed should not have assessed the probable value of the possible evidence of respondent no. 1 therein, in anticipation and wholly in the abstract.
17. In view of the above discussion, since the order passed by the Learned Chief Metropolitan Magistrate suffers from illegality, the same deserves to be set aside.
18. Accordingly, both the revision petitions are allowed and order dated 31.01.2011 is set aside and the application filed on 28.10.2010 by the Crl. Rev. No.38/11 & 95/11 13 applicantpetitioner Krishna Kumar to become State witness/prosecution witness, is allowed and as per the prayer made by the prosecution in reply to the said application, the applicantpetitioner shall be deemed to have been granted pardon, on the condition of his making a full and true disclosure of the whole of the circumstances within his knowledge in respect of the offences and to the other concerned persons, whether as principle or abettor, in the commission thereof.
Trial Court record be returned. Revision petitions be consigned to record room. Ld. CMM, Delhi to proceed further in accordance with law.
Announced in the open Court ( Narinder Kumar )
Today : 17.12.2011 Additional Sessions Judge (Central):Delhi
Crl. Rev. No.38/11 & 95/11 14