Delhi High Court
Tarun Tyagi vs Central Bureau Of Investigation on 13 June, 2016
Author: P.S.Teji
Bench: P.S.Teji
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2729/2014 & Crl.M.A. No.9138/2014
Date of Decision : 13th June, 2016
TARUN TYAGI ..... PETITIONER
Through Mr.Rajat Pahwa, Adv. with
Mr.Ashwin Vaish, Adv.
versus
CENTRAL BUREAU OF INVESTIGATION
(CBI) ..... RESPONDENT
Through Mr.Narender Mann, Spl.P.P. for
CBI with Mr.Manoj Pant, Adv. &
Mr.Gaurav Wadhwa, Adv.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present petition under Section 482 of the Code of Criminal Procedure (Cr.P.C.), has been preferred by the petitioner seeking setting aside of the order dated 6th November, 2013 passed by the learned Chief Metropolitan Magistrate, Patiala House Court, New Delhi and further seeking a direction to the Central Bureau of Investigation to supply a copy of all such documents relied upon by the prosecution in the case arising out of FIR RC No.6/2007/EOU-IX, New Delhi registered under Section 66 of the Information Technology Act, 2000 & Sections 63 & 63-B read with Sections 14(b)(ii) of the Copyright Act, 1957. Crl.M.C. No.2729/2014 Page 1 of 9
2. A thumbnail sketch of the facts of the case is that the petitioner was an employee of the complainant company i.e. M/s Unistal Systems Pvt. Ltd. during the year 2003 to April, 2005. Learned counsel for the petitioner has submitted that the complainant company entered into an agreement with the petitioner whereby the petitioner was entitled to use the products for writing a book on data recovery and for this purpose, the complainant company had financed the petitioner. The complainant company also permitted the petitioner to distribute free of cost the said product along with the book. Learned counsel for the petitioner has further submitted that the petitioner is the Director of M/s Prodata Doctor Private Limited, a company incorporated under the Companies Act and came into being in September, 2005 having its registered office in Ghaziabad, U.P. The said company is engaged in the business of data recovery and developing software applications for computers. The other business works that the petitioner's company has undertaken, are consultancy, training, teaching, data recovery, website promotion, SIM card recovery, non-forensic investigation etc.
3. An FIR was registered by the CBI on 23rd July, 2007 on the complaint of one Shri Alok Gupta, Director of M/s Unistal Systems Pvt. Ltd. in which it was alleged that the petitioner was Crl.M.C. No.2729/2014 Page 2 of 9 one of its employees and thereafter he left the said company and started his own business. It was further alleged by the complainant in the FIR that on or around 11th March, 2005, the petitioner had stolen the sourse codes of a software known as "Quick Recovery"
developed by the complainant company and thereafter put it up for sale on the website of the company of the petitioner under the name "Prodatadoctor". A complaint was lodged in Police Station Nehru Place on 19th March, 2005 regarding theft of source code and subsequent thereto, an undertaking was obtained from all the employees to the effect that they have not stolen the same. Learned counsel for the petitioner has added that the complainant did not suspect the petitioner at that time and after a lapse of two and a half year, the said complaint was filed with the CBI. It is contended by learned counsel for the petitioner that the story set up by the complainant does not hold water inasmuch as it is the complainant's own case that the petitioner attended office till the end of April, 2005 and the salary was paid till May, 2005.
4. It is next submitted by learned counsel for the petitioner that on 3rd August, 2007, the CBI had conducted seizures of certain documents from the office/residential premises of the petitioner. It is alleged that the seizures conducted under Section 165 of the Code of Criminal Procedure, was without following the procedure Crl.M.C. No.2729/2014 Page 3 of 9 prescribed therein and in the said seizure, the CBI had seized various hard disks and CDs and other materials of the petitioner's company. On 17th January, 2008, the petitioner preferred an application seeking release of the seized property.
5. It is further alleged by learned counsel for the petitioner that on 22nd January, 2008, the CBI seized the bank account of the petitioner without complying with the mandatory requirement of Section 102 of the Cr. P.C. It is submitted that the petitioner preferred an appeal against the said seizure. In the meanwhile, on or around 28th February, 2008, the complainant company preferred a suit being CS (OS) No.792/2008 for perpetual injunction and damages against the petitioner and such other, alleging infringement of its copyright of software namely Quick Recovery for FAT & NTFS. The application of the petitioner for release of the seized articles including hard disks, was rejected by the Trial Court vide order dated 10th March, 2008. Thereafter, vide order dated 18th May, 2009, the Court set aside the order dated 10th March, 2008 and application of the petitioner for release, was restored. The CBI filed a chargesheet and cognizance of the offence was taken on 27th May, 2009 under Section 381 IPC; Section 66 of Information Technology Act & Sections 63 & 63-B of the Copy Right Act.
Crl.M.C. No.2729/2014 Page 4 of 9
6. Learned counsel for the petitioner has further submitted that on 3rd September, 2009, the Trial Court directed the investigating officer to find out as to whether copies of the discs in question can be prepared with unite protect software, so that the accused cannot use it till the pendency of the case. Thereafter, on 1st October, 2009, the Govt. examiner of questioned documents, directorate of Forensic Science, Hyderabad, issued a letter to the IO stating therein that the cloned copy of the hard disk can be prepared. An application under Section 207 Cr.P.C. read with Section 238 of the Cr. P.C. was preferred by the petitioner seeking supply of deficient copies of documents such as three hard discs and one compact disc etc. but the said application was dismissed by the learned Chief Metropolitan Magistrate holding that no cloned copies of the said hardware containing incriminating evidence can be prepared with the protected software to avoid its further use by the accused during the pendency of the case.
7. Learned counsel for the petitioner has alleged that while passing the impugned order dated 6th November, 2013, the Trial Court overlooked the fact that the computer science source code is any sequence of statement and/or declaration written in some human-readable computer programme language i.e. called High Level Language. It was stated that the source code which Crl.M.C. No.2729/2014 Page 5 of 9 constitutes a program is usually held in one or more text files, sometimes stored in databases as stored procedures and may also appear as code snippets printed in books or other media. Besides this, it was stated that a large collection of source code files is known as source tree. The source code may be converted into an executable file by a compiler or executed on the file from human readable form with the aid of interpreter. It is contended that the rewriting of a language which is otherwise freely available online on the basis of an original idea which the petitioner or such other person may have carried, is clearly permissible in law unless specifically barred by statute, which is clearly not the case herein. Thus the case of the complainant is bad in law to the effect that the complainant has no copyright in the same. In support of his submissions, learned counsel for the petitioner relies on the pronouncements given in Dharambir v. CBI 148 (200*) DLT 289; Vinod Kumar Jha v. CBI ILR (2009) 6 Del 206; State of Rajasthan v. Rehman AIR 1960 SC 210; Commissioner of Commercial Taxes v. Ram Kishan AIR 1968 SC 59 & Sunderlal Ambala Desai v. State of Gujarat (2002) 10 SCC 283.
8. The sheet anchor for the respondent's version has been that the accused-petitioner had stolen the source code of a software developed by the complainant i.e. M/s Unistal Systems Pvt. Ltd., Crl.M.C. No.2729/2014 Page 6 of 9 known as "Quick Recovery" and the same was put up for sale on the company owned by him after making some cosmetic changes in the software for a profit. It is stated that vide order dated 3rd September, 2009, the Trial Court directed the IO to communicate in writing to the concerned GEQD and to find out whether the cloned copies regarding hard discs can be prepared with such unite protect software embedded upon it and without losing its evidentiary value and also as such that the accused-petitioner cannot use it till the pendency of the case and thereafter, if the GEQD's expert gives an opinion in affirmative that it can be so done, IO is directed to get prepared a cloned copies and further copy thereof could not be given to the accused. Thus, the communication to this effect was given by CBI to Govt. Examiner of Questioned Documents at Hyderabad on which the Govt. Examiner opined that if cloned copy of the hard discs was required then the same could be prepared by the laboratory on supply of a sterile (new) hard disc of 500 GB hard disc but such cloned copies could not be write-protected. Thus, on this basis, the learned Judge, vide order dated 3rd September, 2009, held that it was not possible to get prepared cloned copies with such unite protect software and no copy can be supplied to the accused. Learned counsel for the respondent has further submitted that the said Crl.M.C. No.2729/2014 Page 7 of 9 application contained the original source code Quick Recovery for FAT and NTFS and as such, the same cannot be supplied to the accused. Learned counsel for the respondent has further submitted that except the three hard discs and one compact disc as mentioned in the application, all other articles and documents have been supplied to the accused/petitioner.
9. I have heard learned counsel for the parties at length; gone through the available records and judgments cited by learned counsel for the petitioner. It is crystal clear from the record that as per the opinion of Govt. Examiner of Questioned Documents, Directorate of Forensic Science, the cloned copies of hard disc which contained incriminating evidence, can be made but at the same time, it could not be embedded with write protect software and that if the same is made available without proper protection with write protect software, there are chances of its being misused by the petitioner and, therefore, no copy of the same can be supplied to the petitioner. The findings of learned Chief Metropolitan Magistrate are free from any infirmity and the question raised by the petitioner could be looked into only after the documents are proved by the prosecution i.e. CBI in the course of trial and questioning the documents at this stage would be a futile exercise.
Crl.M.C. No.2729/2014 Page 8 of 9
10. In view of the above facts and circumstances, this Court is of the considered opinion that neither any abuse to the process of law has been established nor any interference is warranted in the impugned order dated 6th November, 2013 passed by the learned Chief Metropolitan Magistrate.
11. Before parting with, any observation made above shall not have any bearings on the merits of the case.
12. As a result of the same, the present petition and application are dismissed.
(P.S.TEJI) JUDGE JUNE 13th , 2016 aa Crl.M.C. No.2729/2014 Page 9 of 9