CRL.M.C. No.1775/2006 Page 1 of 75 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C.1775/2006 Reserved on: 9th March 2008 Date of judgment: 11th March 2008 DHARAMBIR ..... Petitioner Through Shri R.N. Mittal, Sr. Advocate with Mr. S.K. Rungta and Dr. Rekha, Mr. Madhu Sudan, Advocates. versus CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through Mr. Dayan Krishnan, Mr. Gautam Narayan and Mr. Samrat Singh, Advocates. WITH CRL.M.C. 1980/2006 DHARAMBIR ..... Petitioner Through Shri R.N. Mittal, Sr. Advocate with Mr. S.K. Rungta and Dr. Rekha, Mr. Madhu Sudan, Advocates. versus CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through Mr. Dayan Krishnan, Mr. Gautam Narayan and Mr. Samrat Singh, Advocates. WITH CRL.M.C. 6476/2006 DHARAMBIR ..... Petitioner Through Shri R.N. Mittal, Sr. Advocate with Mr. S.K. Rungta and Dr. Rekha, Mr. Madhu Sudan, Advocates. Versus CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through Mr. Dayan Krishnan, Mr. Gautam Narayan and Mr. Samrat Singh, Advocates. CRL.M.C. No.1775/2006 Page 2 of 75 WITH CRL.M.C. 203/2007 JAGDISH CHANDRA ..... Petitioner Through Shri R.N. Mittal, Sr. Advocate with Mr. S.K. Rungta and Dr. Rekha, Mr. Madhu Sudan, Advocates. versus CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through Mr. Dayan Krishnan, Mr. Gautam Narayan and Mr. Samrat Singh, Advocates. WITH CRL.M.C. 3626/2007 AJAY KHANNA ..... Petitioner Through Dr. A.M. Singhvi, Sr. Advocate with Mr.Manoj Taneja, Mr. Samarjit Patnaik and Mr. Sandeep Kapur, Advocates. versus CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through Mr. Dayan Krishnan, Mr. Gautam Narayan and Mr. Samrat Singh, Advocates. WITH CRL.M.C. 3657/2007 DHARAMBIR ..... Petitioner Through Shri R.N. Mittal, Sr. Advocate with Mr. S.K. Rungta and Dr. Rekha, Mr. Madhu Sudan, Advocates. versus CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through Mr. Dayan Krishnan, Mr. Gautam Narayan and Mr. Samrat Singh, Advocates. CRL.M.C. No.1775/2006 Page 3 of 75 AND W.P. (CRL.) No. 1393/2007 ANAND MOHAN SHARAN ..... Petitioner Through Mr. Sidharth Luthra, Sr. Advocate with Mr. Manish Vashisht, Mr. Sameer Vashisht and Ms. Rajni Gupta, Mr. Madhav Khurana, Advocates. versus CBI ..... Respondents Through Mr. Dayan Krishnan, Mr. Gautam Narayan and Mr. Samrat Singh, Advocates. 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 Dr. S. MURALIDHAR, J. Introduction 1.1 Questions of law concerning supply of copies of documents, gathered by the prosecution during investigation, to an accused person at the pre-charge stage arise for consideration in these petitions. It involves the interpretation of Sections 173 (5) and 207 of the Code of Criminal Procedure 1973 (CrPC), Sections 3 and 65B of the Indian Evidence Act 1872 („EA‟) and Sections 2 (o) read with Section 2 (t) of the Information Technology Act, 2000 (IT Act). 1.2 In order to appreciate the issues that arise a brief background is being set CRL.M.C. No.1775/2006 Page 4 of 75 out. The petitioners here are persons accused of offences under Section 120- B IPC and under Sections 7 to 12, 13 (2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 („PC Act‟) in four different cases. In the charge sheets filed in the four cases, the prosecution has stated that as part of the investigation, intercepted telephonic conversations between the accused persons were recorded on four hard discs (HDs) in the computer systems kept at the office of the Special Unit (SU) of the Central Bureau of Investigation (CBI) in New Delhi. The charge sheets further state that these conversations took place on fifteen mobile phones and land lines (hereafter „tapped phones‟), belonging to one of the accused, which were placed under electronic surveillance between December 2002 and March 2003 pursuant to statutory permissions obtained from time to time from the competent authority. After listening to and analyzing the intercepted conversations recorded on the HDs, the CBI transferred to separate Compact Discs (CDs) such of those conversations which CBI considered to be relevant for each of the four cases. 1.3 The four computer systems containing the HDs and the CDs were then sent to the Andhra Pradesh Forensic Sciences Laboratory (APFSL) for certification for two purposes. First, that the HDs were in working condition as required by Section 65B (2) (c) EA and secondly, that the conversations transferred to the CDs were true copies of their original recording on the HDs. The CDs certified by the APFSL were thereafter forwarded to the CRL.M.C. No.1775/2006 Page 5 of 75 learned Special Judge, New Delhi along with the charge sheets. The four HDs have been retained at the APFSL, Hyderabad. 1.4 The Special Judge took cognizance of the offences and issued process to the accused. Copies of the respective charge sheet and its annexures, along with a transcript of the intercepted telephone conversations relevant to the case were furnished to each of the accused. Later, the CDs containing the said relevant telephone conversations were also supplied to the accused. 1.5 During the course of arguments on charge, some of the accused in the four cases filed applications before the Special Judge asking for a direction to the CBI to supply to each of them mirror-image copies of the HDs. This was declined by the Special Judge by separate orders. Aggrieved, the accused have approached this Court with the present petitions, one of which is under Article 226 of the Constitution and the others under section 482 CrPC. 1.6 On 16th May 2007 this Court directed that arguments on charge could be proceeded with before the Special Judge but “formal order be kept in reserve.” This order was challenged before the Supreme Court and the Special Leave Petition was disposed of on 29th February 2008 requesting this Court to take up the case on 4th March 2008 and “dispose of the matter latest by 11.03.2008.” CRL.M.C. No.1775/2006 Page 6 of 75 1.7 In compliance of an order dated 29th February 2008 passed by the Supreme Court, these petitions were heard on March 4th, 6th, 8th and 9th 2008 and judgment is delivered today, 11th March 2008. Despite the last three dates being holidays, counsel for the parties addressed arguments on each of them. The Court expresses its appreciation of the cooperation extended by counsel. The four cases 2.1 There are four cases in each of which a charge sheet has been filed and where some or all of the Petitioners here have been arrayed as accused. The FIR in the earliest of the four cases, bearing No. RC 0025(A)/2003-DLI was registered on 3rd April 2003 under Sections 7, 13(2) read with 13(1) (d) PC Act. This concerns the unauthorised construction of a lift at the property at Mahavira Towers, IIIrd Floor, Paschim Vihar. In this case (hereinafter the „Lift Case‟) Shri Subhash Sharma („Sharma‟), the former Vice-Chairman of the Delhi Development Authority (DDA) is accused No.1, Shri Dharambir Khattar („Khattar‟) who allegedly worked as a middleman between public servants and private individuals is accused No.2, Shri Ved Prakash Kaushik an individual and coconspirator who helped in liaising with the DDA is accused No.3, Shri Pradeep Kapoor husband of Smt. Kavita Kapoor, a partner of a firm M/s APY Hoteliers & Developers is Accused No.4 and Shri Anil Wadhwa and Shri Yashpal Manocha, the other two partners of the said firm are accused Nos. 5 and 6 respectively. The charge sheet in the Lift Case CRL.M.C. No.1775/2006 Page 7 of 75 was filed on 15th July 2004. The prosecution concluded its arguments on charge almost two years ago on 2nd June 2006. Arguments on behalf of accused No.1 Sharma have been completed. The arguments on behalf of accused No.2 Khattar are in progress and arguments are yet to be addressed on behalf of the four other accused. 2.2 The second case is RC-1(A)/2003-ACU-1 which was registered on 26th March 2003 for the offences under Section 120B IPC read with Section 13(2), 13(1) (d) PC Act. It concerns the Modern Public School Education Society, Shalimar Bagh, Delhi („Society‟). The chargesheet was filed in this case [hereafter „the School case‟] on 30th July 2004. It states that the Society was allotted 3.977 acres of land by the DDA on 11th July 1985 for the construction of a higher secondary school and playground. Despite approval of the building plan on 2nd August 1991, the Society did not construct the school building within a stipulated time of two years. A show cause notice was therefore issued to it by the DDA on 18th November 2002 for cancellation of the lease. The case of the prosecution is that the Accused No.1 Sharma, accused No.2 Shri Jagdish Chandra, the then Director (Lands) DDA, Accused No.4 Shri Ashok Kapoor, the then Private Secretary to Sharma, and Accused No.5, Shri Amrit Lal Kapoor, Director of the Society, in conspiracy with Accused No.3 Khattar ensured that the lease was not cancelled and the composition fee not imposed leading to a pecuniary loss of Rs.62,06,594 to the Government. Arguments on charge have been completed CRL.M.C. No.1775/2006 Page 8 of 75 by the prosecution on 7th November 2005. The arguments of only accused Nos. 4 and 5 remain to be addressed and are expected to be completed on 19th March 2008. 2.3 The third case is RC.2(A)/2003-ACUIII registered on 26th March 2003 under Sections 120 B IPC read with Sections 7, 8, 13 (2) read with 13(1)(d) PC Act. Accused No.1 is Sharma, the former Vice-Chairman DDA, Accused No.2 is Shri Anand Mohan Sharan („Sharan‟), the former Commissioner (Land Disposal) DDA, Accused No.3 is Shri Vijay Risbud, Commissioner (Planning) DDA, Accused No.4 is Shri Jagdish Chandra Director (Lands) DDA, Accused No.5 is Khattar, Accused No.6 is Shri Ajay Khanna of DLF Universal Ltd. Shri Ravinder Taneja, Shri G.R. Gogia and Shri Mukesh Saini, accused Nos.7,8 and 9 respectively, have been named as co- conspirators. The charge sheet in this case (hereinafter known as „DLF case‟) was filed on 31st March 2005. The case of the prosecution is that the accused entered into a criminal conspiracy with private parties in order to show undue benefit to DLF in the matter of allowing Floor Area Ratio of 300 in place of 139 and by charging rates much below the prevailing market rates in lieu of obtaining illegal gratification from DLF. The bribe amount agreed was Rs. 1.1 Crores of which Sharma then Vice Chairman of DDA was to get Rs.50 lakhs and the rest of the amount was to be shared amongst Sharan, Chandra and Khattar. Risbud was to be gratified separately by DLF. It is stated that Taneja and Gogia were involved in the delivery of amount of CRL.M.C. No.1775/2006 Page 9 of 75 the bribe. In this case the prosecution is expected to complete its arguments on 13th March 2008 after which arguments would be addressed on behalf of each of the other accused. 2.4. The fourth case is RC.3(A)/2003-ACU.X in which the FIR was registered on 29th April, 2003 under Sections 120B read with 7, 8, 9, 12, 13 (2) read with 13 (1) (d) PC Act. Accused No.1 is Shri Shameet Mukherjee („Mukherjee‟) a former Judge of this Court, Accused No.2 is Sharma, the former Vice-Chairman DDA, Accused No.3 is Shri Vinod Khatri („Khatri‟) and Accused No.4 is Shri Ashok Kapoor („Kapoor‟), a former Private Secretary to Sharma. In this case (hereafter the „Shameet Mukherjee Case‟), the charge sheet was filed on 5th April 2005. The prosecution‟s case is that Khattar enjoyed a close relationship with Sharma and Mukherjee. Even after he became a Judge of this Court, Mukherjee used to visit premises of Khattar at 431, Mathura Road, Jangpura Extension, New Delhi and 2 K. G. Road and frequently enjoy the hospitality of Khattar. It is stated that Khattar acted as a conduit between Mukherjee and various private parties who wanted their pending cases to be decided favourably. The allegation is that the official files and records of cases in the Court of Mukherjee used to be taken to the premises of Khattar at Mathura Road in which Mukherjee used a room for his work. It is stated that CBI recovered files of cases pending in the Court of Mukherjee while they were being taken out from the aforementioned premises belonging to Khattar by Ashok Kapoor in his CRL.M.C. No.1775/2006 Page 10 of 75 Maruti Van on 26th March, 2003. This included a six-page draft, unsigned order of the Court in a Suit titled Azad Singh v. DDA. It is alleged that the conspiracy was entered into between the accused aforementioned to cause undue benefit to Khatri who was interested in two suits pending in the Court of Mukherjee which pertained to two properties. Khatri, a dismissed Constable of the Delhi Police, had illegally occupied Gram Sabha land vested with the DDA for running the Sahara Restaurant. He was interested in the continuation of the interim order passed in Azad Singh v. DDA which effectively prevented the widening of the Aruna Asaf Ali Road. If the stay was lifted, it would cause Khatri a huge loss because he would have had to lose possession of two plots adjacent to the plot which was being claimed by Azad Singh. Also the commercial interests of the Sahara Restaurant which was about 1900 feet away from the Azad Singh plot would be affected by the road widening. The charge sheet details the manner in which the conspiracy between the accused ensured a interim order being passed to protect the interests of Khatri. The arguments on charge on behalf of the CBI and Mukherjee have concluded. The arguments on behalf of Sharma are in progress. The arguments on behalf of other three accused are yet to take place. The interception of calls and their recording 3.1 What is common to all the chargesheets is that apart from the statements of witnesses, and certain documents details of which have been set out in the CRL.M.C. No.1775/2006 Page 11 of 75 Anexures to the chargesheets, the prosecution seeks to rely on intercepted conversations involving the accused made on 15 mobile and landline telephones belonging to Khattar, his family members and other accused which were placed under electronic surveillance between December 2002 and March 2003 pursuant to permissions being obtained from the competent authority from time to time under the Indian Telegraph Act 1885 and the Rules thereunder. 3.2 After listening to the various conversations between the accused, the CBI prepared call information records of identified calls of conversations between accused persons relevant to each of these cases. In the Shameet Mukherjee case, according to the charge sheet, the relevant calls between the accused persons were copied on to 19 CDs and taken on record for investigation. These 19 CDs contained conversations pertaining to 768 calls. From these 19 CDs, 100 short-listed telephone conversations relevant to Shameet Mukherjee case were prepared and transferred to 4 CDs. According to the chargesheets filed in the other three cases, the postion regarding the relevant calls according to the CBI are as under: (i) The Lift Case: 25 calls, transferred to 3 CDs. (ii) The School case: 14 calls transferred to 2 CDs. (iii) The DLF case: 62 calls transferred to 3 CDs. 3.3 As noticed earlier, the four hard discs and the CDs containing the CRL.M.C. No.1775/2006 Page 12 of 75 relevant conversations were sent to the Andhra Pradesh Forensic Science Laboratory („APFSL‟) for comparison with the originals and certification that the conversations recorded in the CDs were true copies of the original recording in the hard discs and further for certifying that the HDs were in a working condition. The APFSL was asked to certify that the time, date and duration of the calls in the CDs tallied with the data files in the four hard discs. The APFSL sent to the CBI the results of the examination in a report dated 22nd July 2003 which confirmed that the recorded conversations were true copies of the originals and that the HDs were in a working condition. 3.4 It is not disputed that the CDs containing the copies of all the aforementioned relevant conversations were forwarded to the court of the Special Judge by the CBI along with the charge sheets. Initially along with the copies of the respective charge sheets, each of the accused was given a transcript of the relevant intercepted telephone conversations recorded in the CDs. Thereafter, pursuant to the orders passed by the Special Judge, the copies of the CDs containing the relevant intercepted telephone conversations themselves were furnished to each of the accused. Proceedings before the Special judge 4. After the charge sheets were filed the learned Special judge took cognizance of the offences and issued process. Over a period of two years thereafter, the accused filed applications before the learned Special Judge CRL.M.C. No.1775/2006 Page 13 of 75 under Section 207 seeking copies of documents and in particular the mirror image copies of the hard discs. The learned Special Judge by separate orders dated 17th September 2005 and 8th March 2006 in the School case, 24th March 2006 in the Lift case, 5th September 2006 in the Shameet Mukherjee case, 19th September 2007 in the DLF case, rejected each of the applications. The significant findings in the order dated 19th September 2007 passed by the Special Judge in the DLF case, were as under: a. The certificate dated 22nd July, 2003 issued by the APFSL on examination of the 3 hard discs, i.e. A, D and E and 3 CDs containing the 62 calls in the DLF case, was to the effect that the data in 62 telephone calls tallied with the respective files in the hard discs. The certificate was therefore in compliance with Section 65 B (4) EA and had to be treated as evidence within the meaning of Section 3 EA. Therefore the 3 CDs fell within the definition “computer output” being an electronic record within the meaning of Section 65B (1) EA and had to be treated as an original document. b. There was force in the contention of the learned counsel for the CBI that the four hard discs recorded telephone calls between persons not connected with the present cases and handing over a copy of these hard discs to the accused persons would prejudice the case of the other co-accused and persons unconnected with these cases. In any event, since the CDs of the relevant telephone conversations which were computer output within the meaning of Section 65 B EA had been CRL.M.C. No.1775/2006 Page 14 of 75 handed over to the accused, the mandate of Section 207 (v) read with 173 (5) CrPC had been complied with. c. Since the prosecution was not relying upon telephone calls other than those copied on the CDs and therefore did not include the other calls in the list of documents appended with the charge sheet with 3 CDs, nothing more needed to be handed over to the accused. The request for supply of mirror image copies of the hard disc was rejected. d. As regards non-compliance with the requirement of Rule 419 of the Indian Telegraph Rules, those were matters of evidence which could not be gone into at the stage of framing of charge. d. The question whether the prosecution was, in the garb of indicating what evidence they proposed to rely upon, indulging in arbitrary picking and choosing of telephone calls, did not arise since the prosecution was not relying upon the four hard discs, copies of which were sought by the accused. There would be ample opportunity for the defence to cross-examine the expert witnesses of the APFSL on their analysis of the call duration, time date and so on. The present petitions 5.1 Aggrieved by the aforementioned orders, some of the accused have filed these petitions under Section 482 CrPC. As regards AM Sharan, he has filed Writ Petition (Crl) 1393 of 2007, in which the prayer is for a direction that CRL.M.C. No.1775/2006 Page 15 of 75 the “entire recorded and intercepted messages be destroyed” on the ground that they have been illegally obtained in contravention of Section 5 (2) of Indian Telegraph Act, 1885 and Rule 419A of the Indian Telegraph Rules, 1951. He has further prayed for quashing the order dated 19th September 2007 passed by learned Special Judge, declining the request for the mirror images of the hard disc in the DLF case. Jagdish Chandra, an accused in the DLF case has filed Crl. Misc. (C) No. 203 of 2007 for a direction to the trial court to hear arguments on charge on a day-to-day basis. 5.2 Initially, when these petitions were filed notices were directed to issue but no interim order was passed. On 16th May 2007, since the position of the board did not permit a hearing of the cases, it was directed that they should be listed on 28th May, 2007 and that “in the meanwhile, the trial court may continue with hearing on charge but formal order be kept in reserve.” Thereafter the interim orders were kept continued from time to time. 5.3 Aggrieved by the order dated 16th May, 2007 the CBI filed SLP (Crl) No. [Crl. MP No. 3060] of 2008 in which the following order was passed by the Supreme Court on 29th February 2008: “Delay condoned. Since the parties are present, we request the High Court to take up the matter on 04.03.2008. Without further notice, the parties shall appear before the learned Chief Justice of the High Court with a copy of our order so that an appropriate Bench can be fixed for hearing of the petition, i.e. Criminal Misc. Application CRL.M.C. No.1775/2006 Page 16 of 75 No. 2845 of 2007 in Criminal M.C. No. 203 of 2007. The High Court is requested to dispose of the matter latest by 11.03.2008. The special leave petition is disposed of accordingly.” 5.4 This order was communicated to this Court on 4th March, 2008 during the lunch recess. Since the decision in Crl.M.A. No. 2845 of 2007 in Crl.M.C. 203 of 2007 would affect all the connected cases, counsel for the parties in all the cases insisted that they should all be heard as well. On 4th March 2008 the hearing commenced and orders were reserved on 9th March, 2008. Submissions of counsel 6.1 Arguments have been heard at length of Shri R.N. Mittal, Dr. A.M. Singhvi and Shri Siddharth Luthra, learned Senior counsel, appearing for the Petitioners. Shri Dayan Krishnan, learned counsel addressed arguments on behalf of the CBI. 6.2 The submissions on behalf of the petitioners were: (i) In each of the charge sheets, the CBI has detailed the process of arriving at the list of calls “relevant” to each of the cases. This process shows that telephone conversations on the tapped phones were recorded into a hard disc and from the hard disc the so-called relevant calls were culled out and transferred into CDs which have been handed over to the accused. Since there is a reference to the hard discs in the charge sheet, the conversations recorded in those hard discs were certainly „documents‟ within the meaning of Section 3 EA CRL.M.C. No.1775/2006 Page 17 of 75 read with Section 173 (5)(a) and 207 (v) CrPC. Such documents as had been relied upon had necessarily to be supplied to the accused. (ii) Section 65(B) (1) EA states that copies of an electronic record transferred to another medium would be deemed to be a document admissible in evidence subject to the conditions in Section 65 (2) EA being complied with. This would render the HDs as relied upon documents and this would therefore also require the accused to be given copies of the HDs. (iii) The CDs furnished to each of the accused is only partial information and the prosecution is bound to furnish to each of them at the pre-charge stage the entire material gathered by it during the course of investigation. The CBI Manual specifically mandates the procedure to be followed by the CBI while investigating the case when it involves electronic