Crl M C 1255/2008 Page 1 of 22 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 1255/2008 & Crl M A 4760/2008 Date of decision: April 25, 2008 UJJAL DASGUPTA (IN J.C.) ..... Petitioner Through Mr. Sidharth Luthra, Senior Advocate with Mr. P.K. Dubey and Mr. Anurag Ahluwalia, Advocates versus STATE ..... Respondent Through Ms. Mukta Gupta, Sr. Standing Counsel with Mr. Pawan Behl, APP. CORAM: HON'BLE DR. JUSTICE S.MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes S.Muralidhar, J. (open court) 1. This petition under Section 482 of the Code of Criminal Procedure, 1973 („CrPC‟) challenges an order dated 19th April 2008 passed by the learned Additional Sessions Judge („ASJ‟), Delhi dismissing an application filed by the Petitioner, who is an accused facing trial in FIR No. 42 of 2006 under Sections 3,4,5 and 9 of the Official Secrets Act 1923 („OSA‟) and 409/201/120-B of the Indian Penal Code („IPC‟) registered at Police Station Special Cell, for the supply of certain documents relied upon by the Respondent State. 2. A significant question of law that arises in this matter concerning the right of an accused facing trial under the OSA to be provided with the copies of the documents relied upon by the prosecution which are in digital form in pen drives and hard discs. The case of the prosecution is that under Section 14 OSA even Crl M C 1255/2008 Page 2 of 22 documents gathered during investigation can, if they are classified or secret, be withheld from the accused although they are relied upon by the prosecution. 3. The brief facts relevant for the present petition are that the FIR No. 42 of 2006 dated 11th June 2006 was registered in the Police Station Special Cell in respect of the collection and dissemination of certain of secret defence related information. Separate complaints were filed against the co-accused. As regards the petitioner, a complaint dated 16th October 2006 under Section 13 (3) OSA was filed by the Deputy Commissioner of Police („DCP‟) Special Cell, New Delhi in the court of the learned Chief Metropolitan Magistrate. A charge sheet was filed the next day i.e. 17th October 2006. 4. The background to the complaint against the petitioner is that acting on the basis of some secret information about the co-accused Shib Shankar Paul having illegally procured certain classified documents from his office at the National Security Council Secretariat for being supplied to foreign agents, a search of Mr. Paul‟s house was conducted on 10th June 2006 and certain classified documents and a circular were recovered. The investigation of the case was taken up and the co-accused Mukesh Saini was arrested and at his instance certain further classified data was recovered. The interrogation of Mukesh Saini revealed that the petitioner, who was a retired Brigadier and working with the Research and Analysis Wing („R&AW‟), was in close touch with Ms. Rosanna Minchew with whom he came into contact during a training course of the Indo US Cyber Security Forum in September 2005. The arrest and interrogation of the Petitioner led to the recovery of three pen drives in which he had stored the secret information. It was further found that the Petitioner had in possession classified data on his official laptop. He Crl M C 1255/2008 Page 3 of 22 brought it to his residence, worked on the data on his home PC and transferred information on to pen drives. The case of the prosecution as regards the contents of the hard discs and is evident from paras 11,12 and 13 of the Complaint which read as under: “11. The recovered hard disk drives and pen drives recovered from accused Ujjal Dasgupta were analysed in Cyber Lab of Special Cell. During analysis the steganography software “Stegno_tesec version 1.0” developed by “FCE, MCTE”, Faculty of Communication Engineering Military College of Telecommunication Engineering, Mhow (An Army Institution). TCPDUMP version 3.9<2005.05.24>, “C Cleaner” and “Eraser” along with many other files were recovered from one pen drive make CommunicAsia 2005. About 50 presentations relating to NSCS and “Special Action Plan and Follow ups 29 Sept 2004 (3PPs) and “Project Anveshak” related 3PPs accessed from F Drive relating to R&AW were recovered from the hard disk of his home computer. 19 PPs relating to “Project Anveshak” were also recovered from the hard disk of his official laptop computer. 12. Documents/information relating to “Project Anveshak” recovered from the house computer and laptop computer of accused Ujjal Dasgupta were sent to Cabinet Secretariat (R&AW) for opinion on classification and authorization of possession. R&AW categorically opined that Project “Anveshak” is a classified project. Ujjal Dasgupta had access to the software developed under this project. Ujjal Dasgupta was not allowed to take the software or its populated contents outside the office. He was also not allowed to connect his official laptop computer of PC computer to an internet connection. The project is related to the security/ defence matters of the country. IF the project or its details were passed on to an unauthorised person or foreign agent, it could be prejudicial to the safety or interest of the State. 13. All the recovered hard disc drives, pen drives, CDs recovered from all the accused persons have also been sent to CFSL, Chandigarh for forensic analysis. The result is awaited.” 5. Along with the chargesheet the prosecution appended a list of witnesses as well as a list of documents being relied upon. The list of documents includes the Crl M C 1255/2008 Page 4 of 22 following which are relevant to the case on hand: “(6) Report of Cyber Lab dated 21.7.2006 with (Envelope W) 1 PP (7) Report of Cyber Lab dated 2.8.2006 (Envelope X) 3 PPs (8) CFSL report No. 635/06 dated 28.7.2006 3 PPs (9) CFSL report No. 669 dated 18.8.2006 4 PPs” 6. The Petitioner filed two applications before the learned trial court on 12th January 2007 praying that the prosecution should supply “clones of the alleged hard disk drive of the office laptop and home computer allegedly of the accused” as well as the following documents: “A Documents (i) D-6: Envelope (W) not supplied. (ii) D-7: Envelope (X) not supplied. (iii) D-10: Pages 3-5 not legible. (iv) D-11” The list of documents says there are 2 + 33 pages but the 2 + 66 pages are filed. (v) D-17: Annexures A and B as mentioned in the letter have not been filed or supplied. (vi) D-2,8,19-24 not supplied. B Statements of witnesses (i) Statements of PW 1-7,9, 10 and 12 have not been supplied.” 7. By an order dated 12th January 2007 the application was rejected by the learned CMM for the following reasons: “An application u/s 207 Cr.P.C. has been moved on behalf of the accused Ujjal Dasgupta for supply of the clone of the hard disk recovered on the instant case copy of the same has been given to APP for State. Heard. Since the said hard disk form the case property of the case, the clone can neither be prepared and as reported by the IO, the hard disk are likely to get tampered with if the clones are ever ventured to be prepared. In any case the same the case property, same cannot be cloned and supplied to the accused persons. The application is, therefore, dismissed. Another application u/s 207 CrPC has been moved on Crl M C 1255/2008 Page 5 of 22 behalf of accused Ujjal Dasgupta for supply of certain deficient documents. The IO is present in person and has supplied the deficient documents mentioned in Sl. No. 1 and 2 mentioned in the application in para 3 (a) of the said application. Since the said documents are classified documents, the recovery of which from the accused persons have brought about the institution of the criminal proceeding against them in the instant case, the same cannot be supplied to the accused. The remaining documents have already been supplied compliance of Section 207 CrPC qua all the accused persons in complete.” 8. The Petitioner then filed a petition Crl. M.C.No.206 of 2007 in this Court challenging the said order. By an order dated 13th February 2008 the said petition was dismissed by this Court as withdrawn with liberty to the Petitioner to file a fresh application before the learned trial court for supply of documents. This court by a separate order dated 19th February 2008 rejected the prayer made by the petitioner for grant of bail but observed that since the petitioner had been in custody for over 18 months, the trial court should be directed to proceed with the arguments on charge and pass an order thereon by 30th April 2008. On 4th March 2008, pursuant to the liberty granted by this Court, the Petitioner filed a fresh application before the trial court praying that the prosecution should be directed to supply the documents mentioned in paras 3, 4 and 7 of the said application which read as under: “3. It is stated in the first application by the Applicant that prosecution has allegedly relied on the purported hard disk, purported office laptop and home computer purportedly of the Applicant but same were not supplied to the accused/applicant till date. The said hard disk allegedly form part of the evidence against the applicant but the same had neither been produced/filed before the Hon‟ble Court of learned CMM nor have the clone/copy of the same been supplied to the applicant/accused. 4. In the 2nd application, the applicant had sought following documents, inter alia:- (a) D-6: envelope (W) not supplied. Crl M C 1255/2008 Page 6 of 22 (b) D-7: envelope (X) not supplied. (c) D-17: Annexure A & B, as mentioned in the letter have neither been filed nor supplied by the prosecution. 7. That during the pendency of the said petition before the Hon‟ble High Court of Delhi the applicant had filed a Miscellaneous Application under Section 482 CrPC bearing Criminal Miscellaneous No. 7266/2007 seeking inter alia therein amendment of the Petition under Section 482 CrPC. In the said Criminal amendment Petition Criminal M.A. NO. 7266/07 applicant had sought following documents: (a) Pen drives (i) CommunicAsia 2005 IXIA 128 MB, (ii) Afila 64 MB, (iii) Kingston Data Traveler 256 MB DTI/256/CN 102205 05317-101-ADOLF SV CHINA, which were allegedly recovered vide recovery memo dated 20.7.2006. Clones/mirror images of the above pen drives may be supplied. (b) Hard disk of the alleged office PC of the Petitioner allegedly recovered vide Memorandum dated 31.7.2006. Clones/mirror image of the said hard disk may be supplied. (c) Details (including the file name, date of creation, date last accessed, file size and path) of the documents as mentioned in D-6 and D-7 of the chargesheet dated 17.10.2006. (d) Certified/authenticated print out of screens mentioned in D-6 of the chargesheet dated 17.10.2006. (e) Certified/authenticated print outs of screens mentioned in D-7 of the chargesheet dated 17.10.2006. (f) Complete list of subfolders/documents found in Volume “PHY-109-6 (PENDRIVE -1)” as mentioned in D-9 of the chargesheet dated 17.10.2006. (g) Complete forensic report given by CFSL in D-8 and D-9 i.e. CFSL Report No. 635/06 dated 28.7.2006 and CFSL Report No. 639 dated 18.8.2006 respectively.” 9. By an order dated 10th March 2008 the said application was rejected by the trial court inter alia on the ground that “the pen drive and its contents are the exhibits and the copies thereof cannot be supplied.” Copies of the documents Crl M C 1255/2008 Page 7 of 22 contained in a hard disk were also declined to be supplied. However, the trial court did not have the benefit of a decision of this Court delivered the next day in Dharambir v. Central Bureau of Investigation 148 (2008) DLT 289 (judgment dated 11th March, 2008 in Crl M.C. No. 1775 of 2006), where, inter alia, this Court held [paras 13 (i) and (ii)]: “13 (i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be 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 electronic 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 record would therefore be a document within the meaning of Section 3 EA.” 10. The Petitioner challenged the order dated 10th March 2008 of the trial court by way of Crl. M C No. 893 of 2008 in this Court. By an order dated 28th March 2008 this Court set aside the order dated 10th March 2008 and remanded the application to the learned trial court for a fresh decision in light of the decision in Dharambir. Thereafter the impugned order dated 19th April 2008 was passed by the learned ASJ again dismissing the application. Before the learned ASJ, reliance was placed by the Petitioner on the decision of the Supreme Court in The Superintendent and Legal Rememberancer of Legal Affairs v. Satyen Bhowmick Crl M C 1255/2008 Page 8 of 22 AIR 1981 SC 917 and the judgment of this Court in Dharambir. The learned ASJ opined that the decision in Dharambir concerned a case under the Prevention of Corruption Act, 1988 („PC Act‟) and not the OSA. As regards the judgment in Satyen Bhowmick the learned ASJ took the view that the issue before the Supreme Court in that case “was not with regard to the supply of the incriminating documents to the accused under Section 207 CrPC.” Thereafter in para 14 the learned ASJ concluded: “14. Giving a direction to the prosecution to supply the mirror images of the pen drives and the hard disc or the print outs of the contents thereof would mean that that Court is indirectly allowing the circulation of the documents, the possession thereof has been made the basis of prosecution of the accused/ applicant under the Official Secret Act. Such could not have been the intention of the Legislature while incorporating Section 207 CrPC. It is one thing to say that such and such documents or evidence collected by the prosecution independently is incriminating and it is other thing to say that the possession of the documents recovered from the accused would by itself constitute an offence punishable under the Official Secret Act. In my humble opinion, the accused is not entitled to the mirror images of the pen drives or the hard discs or the print outs thereof. The application is, therefore, dismissed.” 11. It is submitted by Mr. Sidharth Luthra, learned Senior counsel appearing on behalf of the Petitioner that the learned ASJ erred in rejecting the prayer for supply of documents to the accused which were being relied upon by the prosecution as was evident in the list of documents enclosed with the chargesheet. With reference to the requirement of the law under Section 173 (5) read with Section 207 (v) CrPC, he submits, relying on the decision in Dharambir, that copies of the documents forwarded to the trial court by the prosecution along with the chargesheet can be denied only on an extremely limited ground that the documents are voluminous in which case the accused will only be allowed inspection either personally or through the lawyer. As far as the stand of the prosecution taken Crl M C 1255/2008 Page 9 of 22 during arguments before the learned trial court that the documents are privileged and secret, he points out that no such application was filed at any point of time by the prosecution in the trial court either under Section 173 CrPC or Section 14 OSA claiming privilege. According to him, the judgment of the Supreme Court in Satyen Bhowmick answers the question in favour of the petitioner when it holds that Section 14 OSA does not take away the right of the accused to the copies of those documents which the prosecution claims are secret documents for the purpose of OSA. 12. Ms. Mukta Gupta, learned Standing counsel appearing on behalf of the State did not dispute that the decision in Dharambir concludes the issue that the hard discs and pen drives in the present case are documents within the meaning of Section 3 of the Indian Evidence Act, 1872 („EA‟) and Sections 2(o) read with Section 2 (1) of the Information Technology Act, 2000 („IT Act‟). She submitted that the prosecution would have no objection to providing the petitioner the following documents: (i) the copies of the pen drives mentioned in para 7 (a) of his application before the trial court [extracted in para 8 of this order], (ii) the details concerning the file name, date of creation, date last accessed, file size and path in relation to D-6, D-7 [as mentioned in para 7 (c) of the application] and also of the hard disc (iii) Copies of the documents listed at Sl. Nos. 1 to 51 of D-7 (iv) the certified print out of screens mentioned in D-6 and D-7 [mentioned in paras 7 (d) and (e) of the application] (v) the list of subfolders/documents of the pen drive in D-9 [mentioned in para 7 (f) of the application] Crl M C 1255/2008 Page 10 of 22 (vi) the complete forensic report of the Central Forensic Science Laboratory („CFSL‟) in D-8 and D-9 [mentioned in para 7 (g) of the application] According to her, the prosecution has already provided the petitioner with the documents in paras 7 (f) and (g) of the application but the petitioner denies this. 13. Ms. Gupta opposes the plea for supply of the other documents on the ground that some of these documents are secret and classified, and if given to the accused would themselves attract the prohibition of the OSA. According to her the documents can further get disseminated thereby encouraging further contravention of the OSA. She submits that while there would be no objection to providing the petitioner the documents D-6, D-7 and D-17, the Petitioner can at best be permitted only inspection of the hard copies of the contents of Envelope (W) [which is paper print out of the pen drive recovered from the Petitioner] Envelope (X) [which is also paper print out of details concerning “Project Anveshak” which is certified to be a classified document] and Annexures A & B [containing „sensitive information‟]. The prosecution was not willing to give the petitioner the following document in D-7: “52. Project Anveshak related pages 3 pages accessed from F: drive.” And copy of “Another Hard Disk Drive make “Travestar” Sr. No. 2N8500JJN501TR Model 25NO30ATS)4-0 capacity 30 GB reportedly used by Ujjal Dasgupta at his office in his laptop is checked using Cyber tools and many documents/data were found stored in the hard disk drive. They were displayed on the monitor and 19 pages relating to “Project Anveshak” accessed from E: drive.” She clarifies that although the prosecution would be relying upon the said documents for the purpose of the present case, their copies can nevertheless not be Crl M C 1255/2008 Page 11 of 22 provided to the petitioner. She contends that it is open to the prosecution in terms of Section 173 (6) CrPC to withhold these documents from the petitioner on the ground that their “disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest.” She submits that the words “such statement” occurring in Section 173 (6) CrPC cannot be restricted to the statements recorded under Section 161 CrPC which are referred to Section 173 (5) (b); they should be interpreted to cover the documents referred to in Section 173 (5)(a) CrPC. She further relied upon a short order dated 30th July 2004 passed by the learned Single Judge of this Court in Pookat Gopalan v. State (Crl Appeal No. 571 of 2002) and submitted that normal practice that is usually followed in trials under the OSA was only to permit inspection of the classified seized documents to the accused and nothing more. 14. From the above submissions it appears that the controversy regarding supply of copies of documents to the petitioner is confined to those mentioned in para 13 above. The questions that arise in this petition are therefore in relation only to those documents. As regards the documents mentioned in para 12 of this order, the prosecution has no objection to the petitioner being provided with the copies thereof and therefore, the trial court should ensure that the petitioner is provided those copies, if not already provided, without delay. 15. That brings us to the principal issue raised in this petition concerning supply of those documents to the petitioner which according to the prosecution is secret and privileged. It is not disputed that the prosecution never filed any application in the trial court claiming privilege in terms of section 173 (6) CrPC. That provision requires the police officer to give reasons in writing why he is objecting to giving Crl M C 1255/2008 Page 12 of 22 copies of certain statements in a note to the trial court. However, in the instant case, no such note was given and the objection was taken only during arguments. Without going into the question whether the prosecution would therefore be precluded from claiming privilege, this court proposes to nevertheless examine the merits of the objection. In the first place the distinction between the two types of material, i.e. statements of witnesses recorded by the police under Section 161 CrPC and the documents gathered during investigation, which are forwarded to the trial court by the police along with the charge sheet, requires to be noticed. Section 173 and 207 CrPC are relevant in this context and they read as under: “173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) The names of the parties; (b) The nature of the information; (c) The names of the persons who appear to be acquainted with the circumstances of the case; (d) Whether any offence appears to have been committed and, if so, by whom; (e) Whether the accused has been arrested; (f) Whether he has been released on his bond and, if so, whether with or without sureties; (g) Whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending