IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29-6-2011 CORAM THE HON'BLE Mr.Justice G.M. AKBAR ALI CRL.OP.No.1387 of 2011 Karanjit Singh ... Petitioner/Accused vs State rep by Inspector of Police CBI/ACB, Chennai ... Respondent/Complainant (R.C.No.43/A/09 Criminal Original Petition filed uner Section 482 Cr.P.C for the reliefs as stated therein. For petitioner : Mr.N. Dinakaran Senior Counsel for Mr.C. Karthikeyan For respondent : Mr.N. Chandrasekaran Spl.P.P for CBI Cases ORDER The petition is filed seeking a direction to set aside the order passed by the learned IX Additional Special Judge for CBI Cases cum IX Additional City Civil Court, Chennai, dated 24.12.2010 made in Crl.M.P.No.514 of 2010 in C.C.No.42 of 2009. 2. The brief facts of the case are as follows: The petitioner stands prosecuted as A.1 in CC No.42 of 2009 on the file of the IX Additional Special Judge for CBI Cases for the alleged offences under Secs.7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act. Now, on the charge that the petitioner, who was working as Appriser at Customs House, Chennai, misused his official position by demanding and accepting a sum of Rs.14,000/ as illegal gratification on 12.8.2009 and during the search conducted in his office, incriminating documents and articles were recovered including the amount, the case is pending https://hcservices.ecourts.gov.in/hcservices/ trial and PW.1, the sanctioning authority has been examined in chief and deferred for cross examination. 3. In the meantime, i.e., after examination of P.W.1 in chief, the petitioner filed an application in Crl.M.P.No.514 of 2010 under Sec.91 of Code of Civil Procedure read with 162 of Evidence Act, seeking the production of the following documents: "a. The General Diary relating to C.C.No.42 of 2009 maintained chronologically for the dates 10.8.2009 to 8.10.2009 b. The copy of the Daily Diary of the Inspector of Police Mr.R. Ravi, Inspector of Police, CBI/ACB, Chennai and his pocket note book for the dates 10.8.2009 to 8.10.2009. c. The official lap top and the Hard Disk which was used to the search proceedings. The Commissioner of Customs (Imports), Customs House, Chennai to cause the production of the documents namely:- Entire File in file No.C13/11/2009-CIU (Vig.), generated by the office of the Commissioner of Customs (Imports), Chennai pertaining to the Report of the Superintendent of Police, SPE/CBI/ACB, Chennai dated 10.11.2009 in F.No.C2/RC 43 (A)/2009/CBI/AC/CHEN and connected records thereon. 4. The respondent filed a counter opposing the production of those documents on various grounds more particularly on the ground that the petitioner has already been furnished with documents which were relied on by the prosectuion and the documents which are sought to be produced are not necessary and relevant ones at all. 5. The learned trial Judge considered the contentions of both sides and found that there is no substance in the case of the petitioner and that the documents are not necessary and relevant for the purpose of trial and so finally, dismissed the petition. Against the same, the petitioner has preferred the present petition under Sec.482 Cr.P.C to set aside the order passed dated https://hcservices.ecourts.gov.in/hcservices/ 24.12.2010. 6. Mr.N. Dinakaran, learned senior counsel appearing for the petitioner would submit that the learned trial Judge has not applied his mind properly to the facts and circumstances before deciding the matter. He pointed out that what was sought for are the documents which are necessary in order to put forth the defence theory that the case was false and documents were fabricated and that the petiitoner has been implicated with ulterior motive. He highlighted that summoning of the General diary maintained at the office of the respondent is a document under the police Act and it is not a Case diary as understood by the trial court. According to him, the daily diary of the Investigating Officer and his pocket note book are to be produced only to determine the chronoligical events as mentioned in the charge sheet. 7. As regards production of the office lap top and the hard disk which were used for the search proceedings, the learned senior counsel would contend that only the primary evidence is admissible under law and in the present case, the primary evidence for the search is the lap top and the hard disk, which contains the data entered at the time of search proceedings. It is pointed out that what is furnished to the petiitoner as search proceedings are not reflecting the correct entries made during the search proceedings and to establish that they are fabricated, production of the lap top and hard disk, an electronic document, containing the data in the storage memory is absolutely necessary particularly when it is the emphatic case of the defence that P.W.1, the sanctioning authority has not applied his mind in considering the materials placed before him before granting sanction and that those materials which were relied on by the sanctioning authority are relevant documents necessary for cross examination of the sanctioning authority. 8. To substantiate the submissions made, the learned senior counsel relied on an judgment of this Court reported in 2000 (106) Crl.L.J.4465 MAD (CDJ 2000 MHC 46) (Siva vs State Inspector of Police) dated 23.6.2000 Crl.R.C.No.1227 of 1999, wherein this court dealt with the scope of the provision under Sec.172 Cr.P.C and distinguished between a General diary and a Case diary. 9. He also relied on a decision reported in 1995 (4) SCC 430 (Shamshul Kanwar vs State of U.P) where the Hon'ble Supreme Court outlined the circumstances necessary to adduce the Case diary and the right of the accused regarding the same. 10. The learned counsel also relied on an unreported judgment of the High Court of Delhi in Crl.M.C.No.1775 of 2006 dated 11.3.2008 wherein after dealing in detail about the electronic records, it was held that the hard disk of a computer is an electronic record falling under Sec.65(B) of the Evidence Act. https://hcservices.ecourts.gov.in/hcservices/ 11. On the contrary Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases would submit that the documents which are sought for are not relevant and necesary. The learned Additional Public Prosecutor pointed out that the petititioner/accused is entitled for those documents which are relied on by the prosecution and the same have already been furnished. 12. The learned Special Public Prosecutor for CBI Cases relied on the following case laws: AIR 1958 SC 124 (Jaswant Singh vs State of Punjab) 1993 Crl.L.J 1303 (S. Narayana Pillai vs State of Tamil Nadu) AIR 1958 SC 148 (Indu Bhusan Chatterjee vs State of West Bengal) AIR 1979 SC 677 (Mohd.Iqbal Ahmed vs State of Andhra Pradesh). 13. I have carefully considered the rival submissions advanced on either side and perused the materials available on record. 14. The petitioner stands charged for the offence attracting provisions under the Prevention of Corruption Act. Admittedly, there was a search conducted in his office and the search proceedings were recorded in the office lap top of the respondent and later the copies of such proceedings were furnished to the petitoner. The petitioner has sought production of the documents which are already described above. He has sought for production of the entire file pertaining to the report of the Superintendent of Police dated 10.11.2009 relating to the sanctioning of the prosecution. 15. It is well settled that the sanctioning of prosecution is not a mere formality. The authority giving the sanction should be able to consider for itself the evidence, before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. Therefore it is mandatory to indicate that the sanctioning authority has applied its mind to the facts and circumstances of the case before according sanction. 16. In AIR 1958 SC 124 (Jaswant Singh vs State of Punjab) the Supreme Court held as follows: "4. .... It should be clear from the form of the sanction that the sanctioning authority considered the evidence before https://hcservices.ecourts.gov.in/hcservices/ it and after a consideration of all the circumstances of the case sanctioned the prosecution and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case." 17. In AIR 1958 SC 148 (Indu Bhusan Chatterjee vs State of West Bengal) the Apex Court considered the question whether there had been a valid sanction given under Sec.6 of the P.C Act without which no court could take cognizance of the offence alleged to have been committed by the appellant. The Apex Court had considered the order of sanction and held thus: "9. .... Mr.Bokil said and we see no reason to distrust his statement, that before he accorded his sanction he went through all these papers and after being satisfied that sanction should be given he accorded his sanction. It is true that he did not call for any record in connection with mater from his office nor did he call for the connected claim cases or find out as to how they stood. It was not for Mr.Bokil to judge the truth of the allegations made against the appellant, by calling for the records of the connected claim cases or other records in connection with the matter from his office. The papers which were placed before him apparently gave him the necessary material upon which he decided that it wasnecessary in the ends of justice of accord his sanction." 18. In AIR 1979 SC 677 (Mohd.Iqbal Ahmed vs State of Andhra Pradesh), the Apex Court has held as follows: 3. ... This document no doubt contains the facts constituting the offence but tht does not solve the legal issues, that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the https://hcservices.ecourts.gov.in/hcservices/ Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio, .......... This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned". 19. In 1993 Crl.L.J 1303 (S. Narayana Pillai vs State of Tamil Nadu), this court considered the validity of the sanction order and the grounds of satisfaction of sanctioning authority and held thus: "9. Another decision reported in AIR 1979 1408;(1979 Crl.L.J 1087) (Suraj Mal v State (Delhi Administration) was relied upon by the learned counsel for the appellant for the purpose to show https://hcservices.ecourts.gov.in/hcservices/ that mere recovery of money from the accused was not sufficient. It is the case of the prosecution that the alleged bribe amount was recovered from theaccused. But the explanation offered by the accused is that he had not at all received any amount as bribe from P.W.1 The evidence of P.W.1 with regard to the demand and payment of gratification to the accused is not at all acceptable and in such circumstances, the explanation offered by the accused cannot be thrown away as it is reasonable and probable in the circumstances of the case. In support of this contention the learned counsel for the appellant relied upon the judgment reported in 1991 Crl.L.R (SC) 65; (1992 Crl.L.J 118) (S.V. Kameswar Rao vs State (ACP Police), Karnool District, Andhra Pradesh),. In (1990) 1 Crimes 609 (SC) State of UP v Ram Asrey) their Lordships of the Supreme Court have held that when there is no acceptable and clinching evidence to show that the accused demanded a bribe and accepted the amount as motive or reward, and the judgment of the High Court cannot be interfered with. In the circumstances, I am of the view that the prosecution has ffiled to establish the case against the accused and the evidence of P.W.1 and P.W.2 is totally unsatisfactory and cannot be accepted at all and in the circumstances, the conclusion arrived at by the lower Court isnot correct and therefore the conviction and sentence are set aside. The accused is acquitted and this appeal is allowed. 20. Therefore, the sanctioning authority has to apply its mind and shall indicate the grounds of satisfaction before granting the sanction. It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out to constitute the offence. https://hcservices.ecourts.gov.in/hcservices/ 21. In AIR 1979 SC 677 (Mohd.Iqbal Ahmed vs State of Andhra Pradesh),cited supra, the supreme court has held that this should be done in two ways. Either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence aliunde to show that the facts have been placed before the sanctioning authority and satisfaction is arrived at by the authority. The Apex court has also further held that it is well settled that any case instituted without a proper sanction must fail, because, this being a manifest defect in the prosecutiion, the entire proceedings are rendered void ab initio. 22. In the instant case, P.W.1, the sanctioning authority has been examined and Exs.P.1 and P.2, the sanction orders were produced. However, to establish that the sanction has been granted by sanctioning authority after being satisfied that a case for sanction has been made out, there is no impediment for the prosecution to produce the files which contain the facts placed before the sanctioning authority so that the trial court may arrive at a conclusion whether a valid sanction has been granted. However, such report is only to the perusal of the court for its satisfaction and not for the accused or his authorised agent to look into it. Therefore, the trial court is wrong in negativing the production of the sanction file for the perusal of the court. 23. As far as the General diary relating to C.C No.42 of 2009 is concerned, it is well settled that the police officers are required to maintain two diaries viz., 1) a diary where entries are made about the events which take place in the police station in chronological order and this diary has to be maintained day by day. This diary is known as General diary 2) the police officer who happens to be the investigating officer has to maintain the case diary. The case diary should set forth the proceedings of the investigation and must contain all the records and information which the investigating officer receives. 24. What is referred to under Sec.172(1) Cr.P.C is a case diary and the said provisions read as follows: 172. Diary of proceeding in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his https://hcservices.ecourts.gov.in/hcservices/ investigation. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they, are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply. 25. The plain reading of the section would show that that every police officer making an investigation shall enter his proceedings in a diary, which is called "case diary". The section contemplates that any criminal court may send for the said "case diary" and may use such diary not as an evidence in the case but to aid it in such trial. The section also prohibits the accused or his agent to call for such diaries and see them. However, if the case diaries are used by the police officers who made them to refresh his memory, the provisions of Sec.161 or Sec.145 of the Evidence Act shall apply. 26. Therefore, from what has been stated above, it would be obvious that the Case Diary cannot be used as an evidence and is not accessible to the accused whereas the General diary and the Daily diary of the Inspector of Police CBI for ACB Chennai if available and maintained are relevant documents. 27. Coming to the office lap top and hard disk which were used in the search proceedings, it is for the petitioner to prove that they are relevant and necessary document to the case. The Delhi High Court in Crl.M.C.No.1775 of 2006 dated 11.3.2008 has dealt in detail about the status of hard disk. The Court ultimately held thus: 13. To summarise the conclusion on the various questions:(i) As long as nothing at all is written on to a hard disc and it is subjected to no change. It will be https://hcservices.ecourts.gov.in/hcservices/ a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electrnonic record.(ii) Given the wide definition of the words document and evidence in the amended Section 3 the EA, read with Sections 2 (o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic recod would therefore be a document within the meaning of Section 3 EA. (iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to Cds. They are electronic records for both their latent andpatent characteristics. (iv) In the instant cases, for the purposes of Section 207 (v) read with Section 173(5) (a) Cr.P.C, not only would the Cds containing the relevant intercepted telephone conversations as copied from the Hds be considered to be electronic record and therefore documents but the Hds themselves would be electronic records and therefore documents. (v) In terms of Sections 207(v) read with Section 173(5) (a) Cr.P.C, the prosecution is obliged to furnish to the accused copies of only such documents that it proposes to rely upon as indicated in the charge sheet or of those already sent to the court during investigation. (vi) The trial court or https://hcservices.ecourts.gov.in/hcservices/ this court cannot, at the pre-charge stage, direct the prosecution to furnish copies of documents other than that which it proposes to rely upon or which have already been sent to the court during investigation. (vii) At the pre-charge stage the trial court cannot direct that a copy of each and every document gathered by the prosecution must be furnished to theaccused irrespective of what the prosecution proposes to rely upon(viii) The prosecution is bound to indicate in the charge sheet submitted to the Court the documents it is proposing to rely upon for persuading the court to frame a charge against the accused. If it fails to do so, the court will proceed on the basis that whatever document is forwarded with the charge sheet is in fact proposed to be relied upon by the prosecution (ix) Where the accusedinsists that some other document apart from what is stated in the list of documents attached to a charge sheet should be taken as being proposed to be rlied upon by the prosecution, and submits that this is evident from a reading of the charge sheet, the trial court will examine such submission and if it is satisfied tht the charge sheet does in fact indicate that some other document is also proposed to be relied upon by the prosecution, then it can require the prosecution to furnish the accused a copyof such document as well, (x) In the instant case, the scope of the examination by the APFSL was to find out whether the hard discs were properly functioning and whether the calls copied on to the Cds are true copies when compared with the corresponding files of original recording of those calls in the four Hds. Only to this extent can it be said that the Hds are being relied upon by the prosecution. (xi) The certification in terms of Section 65(B)(4) EA Act does not obviate the statutory requirement under Section 207 (v) of providing to the accused access to the original recording of the relevant intercepted telephone conersation as a relied upon document. (xii) As far as the present cases are concerned, only those portions of the hard disc that relate to the files containing the original recording of the relevant intercepted telephone https://hcservices.ecourts.gov.in/hcservices/ conversations wouldbe documents proposed to be relied upon by the prosecution in terms of Section 207 (v) read with Section 173(5) (a) Cr.P.C. Those files would be documents both as regards the file containing the actual conversation so recorded as well as constituting a ercord of any changes that such file may have been subjec to thereafter.(xiii) Therefore, only to the extent explained in (xii) above, the accused would have a right of inspection of the hard discs sincemaking mirror image copies of the entire Hds is not called for in the circumstances explained in this judgment". 28. Though the hard disk is a document falling within the meaning of Sec.3 of Evidence Act, the accused is entitled only for those documents which are relied on by the prosecution. The only contention of the petiitoner is that the lap top which was used at the time of search proceedings contains the documents in its original form and what was furnished to the petiitoner/accused is only a fabricated document. According to the petiitoner, the purpose of calling for the hard disk and the lap top is to retrieve the original documents of search proceedings. 29. In my considered opinion, it is far fetched to imagine that what was furnished to the petitioner is only a fabricated document and not the generated copy as found in the hard disk. 30. It is also pertinent to note that the lap top/hard disk contains