CALL RECORDS- PROOF AND AUTHENTICITY
It is contended by Mr. Shanti Bhushan, appearing for the accused Shaukat that the call records relating to the cellular phone No. 919811573506 said to have been used by Shaukat have not been proved as per the requirements of law and their genuineness is in doubt. The call records relating to the other mobile numbers related to Gilani and Afzal are also subjected to the same criticism. It is the contention of the learned counsel that in the absence of a certificate issued under sub-Section (2) of Section 65B of the Evidence Act with the particulars enumerated in clauses (a) to (e), the information contained in the electronic record cannot be adduced in evidence and in any case in the absence of examination of a competent witness acquainted with the functioning of the computers during the relevant time and the manner in which the printouts were taken, even secondary evidence under Section 63 is not admissible.
Two witnesses were examined to prove the printouts of the computerized record furnished by the cellular service providers namely AIRTEL (Bharti Cellular Limited) and ESSAR Cellphone. The call details of the mobile No. 9811573506 (which was seized from Shaukat's house) are contained in Exhibits 36/1 to 36/2. The covering letters signed by the Nodal Officer of Sterling Cellular Limited are Ext.P36/6 and P36/7 bearing the dates 13th & 18th December respectively. The call details of mobile No. 9811489429 attributed to Afzal are contained in Ext.P36/3 and the covering letter addressed to the Inspector (Special Cell) PW66 signed by the Nodal Officer is Ext.36/5. The call details of 9810081228 belonging to the subscriber SAR Gilani are contained in Exts. 35/8. The above two phones were obtained on cash card basis. The covering letter pertaining thereto and certain other mobile numbers was signed by the Security Manager of Bharti Cellular Limited. The call details relating to another cellphone number 9810693456 pertaining to Mohammed is Ext.35/5. These documents i.e. Ext.35 series were filed by PW35 who is the person that signed the covering letter dated 17th December bearing Ext.35/1. PW35 deposed that "all the call details are computerized sheets obtained from the computer". He clarified that "the switch which is maintained in the computer in respect of each telephone receives the signal of the telephone number, called or received and serves them to the Server and it is the Server which keeps the record of the calls made or received. In case where call is made and the receiver does not pick up the phone, the server which makes a loop of the route would not register it". As far as PW36 is concerned, he identified the signatures of the General Manager of his Company who signed Ext.P36 series. He testified to the fact that the call details of the particular telephone numbers were contained in the relevant exhibits produced by him. It is significant to note that no suggestion was put to these two witnesses touching the authenticity of the call records or the possible tampering with the entries, although the arguments have proceeded on the lines that there could have been fabrication.
In support of such argument, the duplication of entries in Exts.36/2 and 36/3 and that there was some discrepancy relating to the Cell I.D. and IMEI number of the handset at certain places was pointed out. The factum of presence of duplicate entries was elicited by the counsel appearing for Afsan Guru from PW36 when PW36 was in the witness box. The evidence of DW10 a technical expert, was only to the effect that it was possible to clone a SIM by means of a SIM Programmer which to his knowledge, was not available in Delhi or elsewhere. His evidence was only of a general nature envisaging a theoretical possibility and not with reference to specific instances. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 &
In support of such argument, the duplication of entries in Exts.36/2 and 36/3 and that there was some discrepancy relating to the Cell I.D. and IMEI number of the handset at certain places was pointed out. The factum of presence of duplicate entries was elicited by the counsel appearing for Afsan Guru from PW36 when PW36 was in the witness box. The evidence of DW10 a technical expert, was only to the effect that it was possible to clone a SIM by means of a SIM Programmer which to his knowledge, was not available in Delhi or elsewhere. His evidence was only of a general nature envisaging a theoretical possibility and not with reference to specific instances. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 &
65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.
The learned senior counsel Mr. Shanti Bhushan then contended that the witnesses examined were not technical persons acquainted with the functioning of the computers, nor they do have personal knowledge of the details stored in the servers of the computers. We do not find substance in this argument. Both the witnesses were responsible officials of the concerned Companies who deposed to the fact that they were the printouts obtained from the computer records. In fact the evidence of PW35 shows that he is fairly familiar with the computer system and its output. If there was some questioning vis-`-vis specific details or specific suggestion of fabrication of printouts, it would have been obligatory on the part of the prosecution to call a technical expert directly in the know of things. The following observations of House of Lords in the case of R Vs. Shepard [1993 AC 380] are quite apposite:
" The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly."
Such a view was expressed even in the face of a more stringent provision in Section 69 of the Police and Criminal Act, 1984 in U.K. casting a positive obligation on the part of the prosecution to lead evidence in respect of proof of the computer record. We agree with the submission of Mr. Gopal Subramanium that the burden of prosecution under the Indian Law cannot be said to be higher than what was laid down in R Vs. Shepard (supra). Although necessary suggestions were not put forward to the witnesses so as to discredit the correctness/genuineness of the call records produced, we would prefer to examine the points made out by the learned counsel for the accused independently. As already noted, one such contention was about the presence of duplicate entries in Ext.36/2 and 36/3. We feel that an innocuous error in the computer recording is being magnified to discredit the entire document containing the details without any warrant. As explained by the learned counsel for the State, the computer, at the first instance, instead of recording the IMEI number of the mobile instrument, had recorded the IMEI and cell ID (location) of the person calling/called by the subscriber. The computer rectified this obvious error immediately and modified the record to show the correct details viz., the IMEI and the cell I.D. of the subscriber only. The document is self-explanatory of the error. A perusal of both the call records with reference to the call at 11:19:14 hours exchanged between 9811489429 (Shaukat's) and 9811573506 (Afzal's) shows that the said call was recorded twice in the call records. The fact that the same call has been recorded twice in the call records of the calling and called party simultaneously demonstrates beyond doubt that the correctness or genuineness of the call is beyond doubt. Further, on a comparative perusal of the two call records, the details of Cell I.D. and IMEI of the two numbers are also recorded. Thus, as rightly pointed out by the counsel for the State Mr. Gopal Subramanium, the same call has been recorded two times, first with the cell ID and IMEI number of the calling number (9811489429). The same explanation holds good for the call at 11:32:40 hours. Far from supporting the contention of the defence, the above facts, evident from the perusal of the call records, would clearly show that the system was working satisfactorily and it promptly checked and rectified the mistake that occurred. As already noticed, it was not suggested nor could it be suggested that there was any manipulation or material deficiency in the computer on account of these two errors. Above all, the printouts pertaining to the call details exhibited by the prosecution are of such regularity and continuity that it would be legitimate to draw a presumption that the system was functional and the output was produced by the computer in regular use, whether this fact was specifically deposed to by the witness or not. We are therefore of the view that the call records are admissible and reliable and rightly made use of by the prosecution.
16. Interception of Phone Calls
The legality and admissibility of intercepted telephone calls arises in the context of telephone conversation between Shaukat and his wife Afsan Guru on 14th December at 20:09 hrs and the conversation between Gilani and his brother Shah Faizal on the same day at 12:22 hrs. Interception of communication is provided for by the provisions contained in Chapter V of the POTO/POTA which contains Sections 36 to 48. The proviso to Section 45 lays down the pre-requisite conditions for admitting the evidence collected against the accused through the interception of wire, electronic or oral communication. Chapter V governing the procedure for interception and admission of the intercepted communications pre-supposes that there is an investigation of a terrorists act under the POTA has been set in motion. It is not in dispute that the procedural requirements of Chapter V have not been complied with when such interceptions took place on 14th December, 2001. But, as already noticed, on the crucial date on which interception took place (i.e. 14th December), no offence under POTA was included whether in the FIR or in any other contemporaneous documents. We have already held that the non- inclusion of POTO offences even at the threshold of investigation cannot be legally faulted and that such non-inclusion was not deliberate. The admissibility or the evidentiary status of the two intercepted conversations should, therefore, be judged de hors the provisions of POTO/POTA. On the relevant day, the interception of messages was governed by Section 5(2) of the Indian Telegraph Act read with Rule 419-A of the Indian Telegraph Rules. The substantive power of interception by the Government or the authorized officer is conferred by Section 5. The modalities and procedure for interception is governed by the said Rules. It is contended by the learned senior counsel appearing for the two accused Shaukat and Gilani, that even the Rule 419A, has not been complied with in the instant case, and, therefore, the tape- recorded conversation obtained by such interception cannot be utilized by the prosecution to incriminate the said accused. It is the contention of learned counsel for the State, Mr. Gopal Subramanium, that there was substantial compliance with Rule 419A and, in any case, even if the interception did not take place in strict conformity with the Rule, that does not affect the admissibility of the communications so recorded. In other words, his submission is that the illegality or irregularity in interception does not affect its admissibility in evidence there being no specific embargo against the admissibility in the Telegraph Act or in the Rules. Irrespective of the merit in the first contention of Mr. Gopal Subramanium, we find force in the alternative contention advanced by him.
In regard to the first aspect, two infirmities are pointed out in the relevant orders authorizing and confirming the interception of specified telephone numbers. It is not shown by the prosecution that the Joint Director, Intelligence Bureau who authorized the interception, holds the rank of Joint Secretary to the Government of India. Secondly, the confirmation orders passed by the Home Secretary (contained in volume 7 of lower Court record, Page 447 etc.,) would indicate that the confirmation was prospective. We are distressed to note that the confirmation orders should be passed by a senior officer of the Government of India in such a careless manner, that too, in an important case of this nature. However, these deficiencies or inadequacies do not, in our view, preclude the admission of intercepted telephonic communication in evidence. It is to be noted that unlike the proviso to Section 45 of POTA, Section 5(2) of the Telegraph Act or Rule 419A does not deal with any rule of evidence. The non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res integra in view of the decision of this Court in R.M. Malkani Vs. State of Maharashtra [(1973) 1 SCC 471]. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Indian Telegraph Act was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows:
" There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones V. Owen (1870) 34 JP 759. The Judicial Committee in Kumar, Son of Kanju V. R [1955 1 All E.R. 236] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence."
We may also refer to the decision of a Constitution Bench of this Court in Pooranmal Vs. Director of Inspection [1974 2 SCR 704] in which the principle stated by the Privy Council in Kurma's case was approvingly referred to while testing the evidentiary status of illegally obtained evidence. Another decision in which the same approach was adopted is a recent judgment in State Vs. NMT Joy Immaculate [(2004) 5 SCC 729]. It may be mentioned that Pooranmal's case was distinguished by this Court in Ali Musfata vs. State of Kerala [(1994) 6 SCC 569] which is a case arising under NDPS Act on the ground that contraband material seized as a result of illegal search and seizure could by itself be treated as evidence of possession of the contraband which is the gist of the offence under the said Act. In the instant case, the tape recorded conversation which has been duly proved and conforms to the requirements laid down by this Court in Ramsingh Vs. Ramsingh [(1985) Suppl. SCC 611] can be pressed into service against the concerned accused in the joint trial for the offences under the Indian Penal Code as well as POTA. Such evidence cannot be shut out by applying the embargo contained in Section 45 when on the date of interception, the procedure under Chapter V of POTA was not required to be complied with. On the relevant date POTA was not in the picture and the investigation did not specifically relate to the offences under POTA. The question of applying the proviso to Section 45 of POTA does not, therefore, arise as the proviso applies only in the event of the communications being legally required to be intercepted under the provisions of POTA. The proviso to Section 45 cannot be so read as to exclude such material in relation to POTA offences if it is otherwise admissible under the general law of evidence.
Supreme Court of India
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005http://indiankanoon.org/doc/1769219/
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