Calcutta High Court (Appellete Side)
Ns Akshya Kumar Sarangi vs Union Of India & Ors on 29 April, 2016
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
46 29.4.16 W.P. 5175 (W) of 2016
ns Akshya Kumar Sarangi
-Versus-
Union of India & ors.
Mr. Anindya Sundar Das,
Mr. S. Bagchi, ...For the Petitioner
Mr. Ujjal Kumar Roy,
Mr. Trivesh Goswami ...For Union of India.
(in WP 5224/16 also)
Mr. Kalyan Kr. Bandyopadhyay, Sr. Adv.,
Mr. Jytoti Prakash Chatterjee
...For Respondent no.7.
With W.P. 5224 (W) of 2016 Amitava Chakraborti & anr.
-Versus-
Union of India & ors.
Mr. R. S. Chattopadhyay, Mr. U. S. Chattopadhyay, Mr. S. S. Chattopadhyay Mr. Santanu Majhi, Ms. Snigdha Saha ...For the petitioners.
Mr. Dipayan Chowdhury, Mr. Souma Bhattacharya, Mrs. Priyanka Chowdhury, Ms. P. Chowdhury ...For Election Commission of India.
(in all the three matters) With W.P. 5243 (W) of 2016 Brajesh Jha.
-Versus-
Union of India & ors.
Mr. Partha Ghosh, Mr. Ajay Choubey, Mr. S. Agarwal, Mr. Animesh Sanyal, Mr. Priyabrata Patra ....For the petitioner.
Mr. Jaydeep Kar, Sr. Adv., Mr. Niladri Bhattacharjee, Mr. Soham Bandyopadhyay ...For respondent no.12.
Mr. Kishore Dutta, Sr. Adv., 2 Mr. Ratul Biswas ...For respondent no.22 Mr. Manisankar Chattopadhyay .... For respondent no.21 Mr. Rajdeep Majumdar ...For respondent no.19.
Mr. Kalyan Kr. Bandyopadhyay, Sr. Adv., Mr. Jytoti Prakash Chatterjee, Ms. Pramiti Bandyopadhyay ...For Respondent nos.11, 13, 16 & 17 Mr. Ujjal Kumar Roy, Mr. Pradip Kr. Das ...For Union of India.
Mr. Bimal Kr. Chatterjee, Sr. Adv., Mr. R. Bharadwaj, Mr. Agnibesh Roy ...For Respondent no.10.
Mr. Jayanta Kr. Mitra, ld. Advocate General, Mr. L. K. Gupta, ld. A.A.G., Mr. Abhratosh Majumdar, Ld. G.P., Mr. Subhobrata Dutta, Mr. T. M. Siddique ...For the State (in all three writ petitions) Mr. Asraf Ali ...For C.B.I. (in all the three matters) In the present public interest litigations subsequent to taking the i-phone and the pen-drive to the custody of the Court through the Special Committee appointed by this Court, petitioners sought sending the same for forensic laboratory analysis.
There was strong opposition on behalf of the party respondents contending that at this stage when the properties taken to custody are not even primary evidence, question of sending them to the forensic laboratory analysis would not arise.
Mr. Joydeep Kar, learned senior counsel 3 appearing on behalf of respondent no.12, relies upon the case of Anvar P.V. Versus P. K. Basheer and others reported in (2014) 10 Supreme Court Cases 473 to bring to our notice how much importance or credibility can be assigned to electronic record which is not primary evidence.
At this stage, we make it clear that we are not dealing with the merits of the writ petitions now. The procedure to deal with the matter on merits is not yet completed, i.e. completion of pleadings.
One cannot shut eyes to the sensitivity involved in the matter since it shakes the very confidence of citizens in the system if material collected depicts true facts. Otherwise, persons intending to venture into litigation of this nature must be dealt with properly.
Whether there can be an analysis of the material taken to custody at this stage? Without any hesitation we opine that it can be done in the light of observations made by the Constitutional Bench of the Apex Court in the case of Lalita Kumari Versus Government of Uttar Pradesh and others reported in (2014) 2 Supreme Court Cases 1 where the Apex Court referred to category of cases in which a preliminary enquiry can be held before proceeding with the proper and regular investigation depending upon the disclosure of the preliminary enquiry. Corruption cases are one of such category.
4In that view of the matter, we are of the opinion, as a preliminary step we have to first ascertain whether the electronic record and device are tampered/engineered/doctored. We were informed by the Chairman of the Committee, Registrar, Original Side, that it was recorded on i-phone, which was transmitted to a laptop then taken to pen-drive. Now, we have the custody of only the i-phone and pen-drive. But device with which it was transmitted was not taken to custody since Mr. Mathew Samuel put a condition that cost of the laptop has to be deposited before he parts with the laptop. He being the cause for the present action and responsible for the entire information which was only within his knowledge cannot put conditions that he will not give the laptop without the cost of the laptop being deposited with him.
Respondent no.10, Mr. Mathew Samuel, has to hand over the laptop through which the information in the I-phone was transmitted and then recorded in the pen-drive.
We direct the Chairman of the Special Committee to personally hand over the I-phone and the pen-drive collected from Mr. Mathew Samuel to the Director of Central Forensic Science Laboratory, Hyderabad along with the copy of this order for the purpose of making preliminary enquiry whether the I- phone, pen-drive and the laptop in the form of electronic 5 record are engineered/doctored or otherwise genuine.
The report with regard to above analysis has to be kept confidential without disclosing either to media or to any other person whom so ever. The report shall be collected in person by the Chairman of the Special Committee in a sealed cover and placed before the Court.
In the meanwhile, Mr. Mathew Samuel has to personally deliver the laptop into which he is said to have transmitted the information recorded on I-phone.
All the three devices/articles have to be tested and checked and then report must be sent pertaining to each one of them whether it is tampered/engineered/doctored or genuine.
We direct the Director, Central Forensic Science Laboratory, Hyderabad to take all precautions with regard to the secrecy he has to maintain and the said exercise has to be completed as expeditiously as possible and not later than four weeks from the date of handing over the i-phone, pen-drive and laptop.
Mr. Mathew Samuel shall hand over the laptop to the Director of Central Forensic Science Laboratory, Hyderabad within 10 days from today in presence of Registrar, Original Side, Chairman of the Special Committee who shall record such fact by way of a report.
6All contentions including maintainability of these writ petitions are kept open.
List the matters after ensuing Summer Vacation.
( Manjula Chellur, Chief Justice ) ( Arijit Banerjee, J. )