The State of Karnataka vs Shoaib Ahmed Mirza and Others

H. Billappa, J.—The appellant-State has filed this appeal calling in question the order dated 15.5.2015, passed by the XLVIII Addl. City Civil & Sessions Judge and holding concurrent charge of XLIX Addl. City Civil & Sessions Judge and Special Judge for NIAA cases, City Civil Court, Bengaluru, in Spl. C.C. No. 52/2013.

By the impugned order, the Trial Court has directed the prosecution to furnish copy of mirror image of three internal hard disks, six laptops, seven pen drives and two hard disks which are referred to in P.F. No. 81/2012, dated 24.09.2012 to the accused persons.

Aggrieved by that, the appellant-State has filed this appeal.

The learned counsel Sri. C.H. Jadhav, representing the appellant submitted that the impugned order cannot be sustained in law. Further, he submitted that the documents are sensitive in nature and furnishing of copy of the documents to the accused or his counsel would prejudice the security of the State. Therefore, the Trial Court was not justified in directing to furnish mirror image copy of three internal hard disks, six laptops, seven pen drives and two hard disks to the accused persons. Further, the learned counsel has filed a memo which reads as under;

"1. In the present case in Spl. CC No. 52/2013, the accused are facing trial only for the offences punishable under sections 25 and 3 of Indian Arms Act and under sections 153-A , 121-A , 120-B , 121 , 122 , 379 , 153-B , 307 of IPC and under sections 10 , 12 , 13 , 15 , 16 , 18 , 20 of Unlawful Activities (Prevention) Act 1967. It is pertinent to note that no offences under the Official Secrets Act, 1923 are charged against the accused herein.

It is further submitted that the supplementary charge sheet No. 4 came to be filed against the accused No. 8 for the offences punishable under sections 3 , 5(1)(C) and 9 of the Official Secrets Act, 1923 and the said offences will be tried separately only against accused No. 8.

It is submitted that the prosecution has already provided the copies of the Mirror Images of the two External Hard-disks in the form of Compact Discs and the original Hard-Disks are in the custody of the Hon''ble Court.

It is submitted that the offences under the Official Secrets Act, 1923, are limited only against accused No. 8 in the Supplementary Charge sheet and the said offences will not be invoked against the other accused in the main charge sheet in Spl. CC No. 52/2013."

In support of his submission, the learned counsel for the appellant placed reliance on the decision of the Delhi High Court in the case of Cdr.(Retd) Jarnail Singh Kalra Thr. Perokar/His wife Jasvinder Kalra v. C.B.I., disposed of on 22.12.2010, to contend that the Court cannot compel the State to give those documents which the State considers to be sensitive and confidential and disclosure would be prejudicial to the interest of the State.

As against this, the learned counsel for the respondents submitted that the impugned order does not call for interference. Further, he submitted that P.W. 4 has deposed that during investigation mirror image of three internal hard disks, 6 laptops, 7 pen drivers and two hard disks are drawn and got developed through C10-Cyber Crime branch and the same was subjected to PF No. 81/2012 as per Ex. P77. The mirror image is going to be used against the accused. No charge is framed against the respondents for the offence punishable under the Official Secrets Act. The prosecution having used the documents against the accused cannot now deny to furnish copy of the mirror image to the accused persons. It would affect the interest of the accused and the accused would not be able to defend themselves properly. Therefore, the impugned order does not call for interference. He placed reliance on the decisions of the Hon''ble Supreme Court reported in AIR (34) 1947 Privy Council page 67 and Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Satyen Bhowmick and Others, .

In Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Satyen Bhowmick and Others, , the Hon''ble Supreme Court after considering Section 14 of the Official Secrets Act and provisions of criminal procedure code has concluded as follows at para. 26;

"Thus on an overall consideration of the facts and circumstances of the case and a true interpretation of the language employed in S. 14 of the Act, we reach the following conclusions:--

That S.14 apart from providing that the proceedings of the Court may be held in camera under the circumstances mentioned in the Section, does not in any way affect or override the provisions of the Criminal Procedure Code relating to enquiries or trials held thereunder.

That S.14 does not in any way deprive the valuable rights of the accused to get copies of the statement recorded by the Magistrate or statements of witnesses recorded by the police or the documents obtained by the Police during the investigation as envisaged by criminal Rules 308 and 310 framed under the Code of Criminal Procedure by various High Courts nor does S.14 in any way affect the right of the accused to get copies under Section 548 of the Code of Criminal Procedure.

That the opening words of S.14 do not amount to a non obstante clause but are merely in the nature of an enabling provision reserving the inherent powers of the Court to exclude the public from the proceedings if the Court is of the opinion that it is just and expedient to do so.

That there was absolutely no impropriety on the power of the Magistrate in not taking action against the defence lawyer for his refusal to show his register because the lawyer had rightly claimed privilege under S.126 of the Evidence Act as the register contained instructions given by the client which being privileged could not be disclosed to the Court. On a parity of reasoning we find no impropriety on the conduct of the lawyer in refusing to show the statement of witnesses recorded by the Court in extenso in order to prepare himself for an effective cross-examination of the witnesses. Hence the strictures passed by the High Court on the Magistrate as also on the lawyer of the defence were, in our opinion, totally unwarranted.

That if the lawyer of the defence or staff of the Court or any one who was not excluded from the hearing of the case made any attempt to disclose the contents of the documents or the statements of the witnesses, exposed himself to a prosecution on a charge under Section 5 of the Act."

The Privy Council in Pulukuri Kottaya and others vs. EmperorAIR 1947 67 (Privy Council) has held, the right to be furnished with copies of statements made by witnesses to a police officer given to an accused person by Section 162 is a very valuable one and often provides important material for cross examination of the prosecution witnesses. However, slender the material for cross examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate.

It is clear from the above decisions, if copies of the documents relied upon by the prosecution are not furnished, it would affect the interest of the accused.

In the present case, PW4 has deposed that during investigation the mirror image of three internal hard disks, 6 laptops, 7 pen drives and two hard disks are drawn and got developed through C10-Cyber Crime branch and the same was subjected to PF No. 81/2012 as per Ex. P77. It is going to be used against the accused. It is stated, there is no charge for the offence punishable under the provisions of the Official Secrets Act against the accused. Under section 207 of Cr.P.C. the accused needs to be provided with copies of the documents, statements etc., The Trial Court taking into consideration the decision of the Hon''ble Supreme Court and also the provisions of Section 207 of Cr.P.C. which provides for furnishing of the copies of the statements, document etc., has directed the appellant-State to furnish copy of the mirror image of three internal hard disks, six laptops, seven pen drives and two hard disks which are referred to in P.F. No. 81/2012 to the accused persons.

We do not find any error or illegality in the impugned order. Therefore, the impugned order does not call for interference.

Accordingly, the appeal is dismissed.