TARUN TYAGIversusCENTRAL BUREAU OF INVESTIGATION

                            [2017] 1 S.C.R. 670



A                             TARUN TYAGI
                                     v.

               CENTRAL BUREAU OF INVESTIGATION
                     (Criminal Appeal No. 102of2017)
B                          FEBRUARY 08, 2017
               [A. K. SIKRI AND R. K. AGRAWAL, JJ.]
         Code of Criminal Procedure, 1973 - s. 207 - Supply to the
    accused of copy of police report and other documents - Allegation
    that appellant stole the 'source code of a software known as 'quick
c   recovery developed by complainant's co111pany and put it on sale
    on the website of the appellant co111pany - Registration of case
    under the Information Technology Act and Copyright Act - Charge-
    sheet filed by CBI relying on hard disks - Appellant sought release
    of seized property - Refusal to supply the hard disk and compact
D   disk to the appellant by the courts below - Correctness of - Held:
    s. 207 puts an obligation on the prosecution to furnish to the
    accused, free of cost, copies of the docu111ents 111entioned, therein,
    without any delay - If documents are volu111inous, instead of
    furnishing the accused with the copy thereof, the magistrate can
    allow the accused to inspect it either personally or through pleader
E
    in the court - On facts, in order to comply with the provision of s.
    207, marked hard disks be supplied to appellant subject to certain
    conditions - Information Technology Act, 2000 - s. 66 - Copyright
    Act, 1957 - ss. 63, 63B - Penal Code, 1860 - s. 381.
        Allowing the appeals, the Court
F
         HELD: 1.1 Section 207 of the Code of Criminal Procedure,
    1973 puts ;•n obligation on the prosecution to furnish to the
    accused, free of cost, copies of the documents mentioned therein,
    without any delay. It includes, documents or the relevant extracts
    thereof which are forwarded by the police to the Magistrate with
G   its report under Section 173(5). Such a compliance has to be made
    on the first date when the accused appears or is brought before
    the Magistrate at the commencement of the trial inasmuch as
    Section 238 warrants the Magistrate to satisfy himself that
    provisions of Section 207 have been complied with. Proviso to
H   Section 207 states that if documents are voluminous, instead of
                                     670
  TARUN TYAGI v. CENTRAL BUREAU OF INVESTIGATION                         671


furnishing the accused with the copy thereof, the Magistrate can          A
allow the accused to inspect it either personally or through pleader
in the Court. [Para 8) [677-C-E)
     1.2 CBI had seized some hard disks marked Q-2, 9 and 20
from the premises of the appellant which contained the source
code of the data recovery software. Defence of the appellant is          B
that this source code was exclusively prepared by him and was
his property. On the other hand, case of the prosecution is that
the recovered CDs are in fact same or similar to the software
stolen in 2005. In a case like this, at the time of trial, the attempt
on the part of the prosecution would be to show that the seized.
material, which contains the source code, is the property of the          c
complainant. On the other hand, the appellant would try to
demonstrate otherwise and his attempt would be to show that
the source code contained in those CDs is different from the
source code of the complainant and the seized material contained
the source code developed by the appellant. It is but obvious            D
that in order to prove his defence, the copies of the sei:t.ed CDs
need to be supplied to the appellant. The right to get these copies
is statutorily recognised under Section 207, which is the hallmark
of a fair trail that every document relied upon by the prosecution
has to be supplied to the defence/accused at the time of supply of
the chargesheet to enable such an accused to demonstrate that             E
no case is made out against him and also to enable him to prepare
his cross-examination and defence strategy. There is no quarrel
 up to this point even by the prosecution. The only apprehension
of the prosecution is that if the documents are supplied at this
stage, the appellant may misuse the same. [Para 10] [678-B-E]             F
     1.3 The said apprehension of the prosecution is based on the
 opinion of Government Examiner (Expert) who has opined that if
 the cloned copy of the hard disk was required, then the same
 could be prepared by the laboratory on supply of new hard disk
 of 500 GB but such cloned copy could not be write protected. In         G
 view of the opinion of the Expert, it needs to be ensured that the
 appellant, when given the cloned copy of the hard disk, is not
 able to erase or change or remove the same. If that can be
._achieved by putting some safeguards, it would be the ideal
 situation inasmuch as provisions of Section 207 which ensure
                                                                         H
672            SUPREME COURT REPORTS                          [2017] I S.C.R.


A     fair trial by giving due opportunity to the accused to defend himself
      shall be fulfilled and the apprehension of the prosecution would
      also be taken care of. [Para 11] [678-F; 679-A"B]
          1.4 In order to comply with the provision of Section 207, the
      hard disks marked Q-2, 9 and 20 be supplied to the appellant
B     subject to certain conditions. Before supplying the said CDs, the
      contents thereof shall be recorded in the Cou·rt, in the presence
      of complainant as well as the appellant and both of them shall
      attest the veracity thereof by putting their signatures so that there
      is no dispnte about these contents later thereby removing the
      possibility of tempering thereof by the appellant. The appellant
c     shall not make use of the source code contained in the said CDs
      or misuse the same in any manner and give an affidavit of
      undertaking to this effect in the trial court. [Para 12] [679-D-G]
          CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
      102 of2017.
D
          From the Judgment and Order dated 13.06.2016 of the High Court
      of Delhi at New Delhi in Criminal M. C. No. 2729 of2014.
         Ashwin Yaish, Rajat Pahwa, Vinod Pandey, Nitin Kumar Thakur,
      Advs. for the Appellant.
 E       P. K. Dey, Ms. Meenakshi Grover, Rajat Singh, M. K. Maroria,
      Advs. for the Respondent.
           The Judgment of the Court was delivered by
            A. K. SIKRI, J. 1. On the basis of a complaint lodged by one Mr.
       Alok Gupta, Director of Mis. Unistal Systems Private Limited (hereinafter
 F
       referred to as the complainant), a First Information Report (FIR) was
       registered by the Central Bureau oflnvestigation (CBI) on July 23, 2007
       wherein the aprellan{ was made an accused: In the said FIR, the
       complainant had alleged that on or around March 11, 2005, the appellant
       had stolen the 'source code' of a software known as 'Quick Recovery'
 G    ·developed by the complainant's company and thereafter put it for sale
       on the website of the appellant company under the name
       'Prodatadoctor '. Case was registered under Section 66 of the
       Information Technology Act, 2000 and Sections 63 and 63B read with
       Section 14(b)(ii) of the Copyright Act, 1957. The CBI took up the
       investigation and seized c7rtain documents and material from the office/
 H
  TARUN TYAGI v. CENTRAL BUREAU OF INVESTIGATION                                 673
                    [A. K. SIKRI, J.]

residential premises of the appellant after conducting search and seizure         A
on August 03, 2007. The appellant moved, some time in January 2008,
an application seeking release of the seized property. This application
was rejected by the Court of Chief Metropolitan Magistrate, Patiala
House Courts, New Delhi on March 03, 2008. The High Court of Delhi
set aside this order in Criminal Misc. Case No. 1518 of2008, which was
                                                                                  B
preferred by the appellant against the order of the trial court rejecting
this application. The orderofthe High Court is dated May 18, 2009. By
this order, the High Court restored the application for release with direction
to the concerned Magistrate to deal with the application afresh. Operative
portion of the order reads as under:
       "2. The submission oflearned counsel for the Petitioner is that           c
       the entire business of the Petitioner is affected because of the
       seizure of all the electronic hardware equipments although
       incriminating the evidence, if any, may be only on some of them.
       He further submits that although the chargesheet was filed in
       June, 2008, no cognizance has yet been taken of the offence, if           D
       any, by the learned ACMM.
       3. Learned counsel for the parties were unable to inform the
       Court whether the opinion of GEQD on the seized electronic
       hardware equipment has been received by the trial court.
       4. In view of the facts as noticed hereinabove, it is directed that        E
       the learned ACMM will first and foremost if not done already,
       consider whether cognizance should be taken of the offence, if
       any, on the basis of the charge sheet filed. This will be done
       within ten days of the receipt by the learned ACMM of the certified
       copy of this order."                                                       F
     2. ln the meantime, on June 28, 2006, the CBI had filed the charge
sheet after completing the investigation. On May 27, 2009, the trial
court took cognizance of offence under Section 381 of the Indian Penal
Code, 1860, Section 66 of the Information Technology Act, 2000 and
Sections 63 and 63B of the Copyright Act, 1957. Insofar as the application       G
of the appellant for release of the seized property is concerned, the trial
court passed the orders dated September 03, 2009 thereupon, directing
the Investigating Officer to find out as to whether copies of the hard
disk in question can be prepared with Unite Protect Software so that the
appellant/accused is unable to use it till the pendency of the case. The
Government Examiner of Questioned Documents (GEQD), Directorate                  H
674             SUPREME COURT REPORTS                           [2017] I S.C.R.


A     of Forensic Science, Hyderabad, vide letter dated January 0 I, 2009,
      addressed to the Investigating officer, opined that cloned copy of the
      hard disk can be prepared.
           3. After receipt of this report, the appellant preferred another
      application on July 20, 20 I 0 under Section 207/238 of the Code of Criminal
B     Procedure, 1976 (hereinafter referred to as the 'Code') seeking supply
      of deficienJi;ppies of documents, such as hard disk relied upon by the
      prosecuti~n, i.e. Q-2, 9 and 20. The learned Magistrate rejected this
      application vide orders dated November 06, 2013. This order was
      challenged by the appellant by filing Criminal Misc. Case under Section
      482 of the Code. The High Court has, vide impugned judgment dated
c     June 13, 2016, dismissed the said petition. It is this order which is the
      subject matter of challenge in the instant appeal. To put it in nutshell,
      along with the chargesheet filed by the CBI, various documents are
      enclosed which include hard disk as well that was seized from the office
      of the appellant. These are Q-2, 9 and 20. Though, copies of all other
D     are supplied to the appellant, he is not given the aforesaid three disks.
      The appellant wants copies of these disks as well. His submission is
      that as per the report of GEQD, cloned copies of these hard disks can
      be prepared and, therefore, there is no problem in supplying the same to
      the appellant.
          4. Before dealing with the aspect in detail, we may take note of the
      case put up by the CBI in the charge sheet submitted before the trial
      court after completing the investigation into the matter:
           5. The prosecution case is that M/s. Unistel Systems Private Limited
      (hereinafter referred to as the 'company') is a company established in
 F    the year 1995 and the business of the company was to buy, sell, import-
      export and distribute all types of computer software and related works.
      The c01nputer software manufactured by the company were all Data.
      Recovery software related to recovery oflost data in crashed hard disks
      of the computer with various types of operating systems. The Data
      Recovery software developed by the company is under the brand name
G     of 'Quick Recovery·. This software was developed and launched in
      the year 1999 and later got renamed as 'Quick Recove1y Windows".
      The software was a DOS based software and used to work for File
      Allocation Table (FAT). Subsequently, the software was got upgraded
      to FAT and New Technology File System (NTFS). This software was
      developed by a team headed by one Manu Bhardwaj and others in the
 H
  TARUN TYAGI v. CENTRAL BUREAU OF INVESTIGATION                              675
                    [A. K. SIKRI, J.]

office premises of the complainant's company and all these persons            A
were employed in the company in the capacity of Programmers. The
source code of the software programme 'Quick Recovery for FAT &
NTFS' was stored in the programming room that was networked for the
purpose of convenience and was not password protected and easily
accessible by the other employees in the office of the company.
                                                                              B
     6. The appellant was an employee of the company initially for a
brief period of two months, i.e. in October and November 2003. He
rejoined the company in June 2004 and worked till end of April 2005.
The appellant had his own website, which he started while working in
the complainant's company. The appellant, with dishonest intention of
selling data recovery software, made out with the stolen source code.
                                                                              c
The website developed by the appellant was registered with Direct Internet
Service of Mumbai. The appellant, during the period of his employment
with the company, had access to the source code of 'Quick Recovery
for FAT & NTFS' and unauthorisedly misappropriated the same from
the programming room of the company. After leaving the services of the        D
company, the appellant formed his own company by the name Mis.
Prodata Doctor Private Limited. The appellant secured the services of
one Mr. Vikas Yadav as the Programmer, who was given the stolen
source code of 'Quick Recovery for FAT & NTFS' and was directed to
make a recovery software by modifying the stolen code. During
investigation, Vikas Yadav made a statement as to how he had prospered         E
the software 'Data Doctor Recovery for FAT & NTFS' based on the
source code of the complainant's company. He further stated that how
the appellant instructed him to remove the name of the company from
the Graphical User Interface of the source code while adopting it for the
new software 'Data Doctor Recovery for FAT & NTFS'. He further                 F
disclosed that he had developed variant of the software like Data Doctor
Recovery for iPOD, Pendrive, Memory Card, Digital Camera, SIM Card,
etc. with the help of the stolen source code of the company. During
investigation, the stolen source code was recovered from his mail which
was sent by the appellant. The appellant, after developing the 'Data
Doctor Recovery for FAT & NTFS'out of the stolen source code of the            G
company, put it for sale on his website and remittance was received by .
him from abroad, through various payment gateways, and the variant
software developed by Yikas Yadav was sold through these gateways.
As per the CBI, it is also found that the appellant obtained a total amount
of more than ~ 5 crores between 2004-2008 due to on line sale of the           H
676             SUPREME COURT REPORTS                           (2017] I S.C.R.



A     software under the name 'Data Doctor Recovery for FAT & NTFS'.
            7. It is on the basis of the aforesaid allegations in th~ chargesheet,
      that the cognizance is taken by the trial court of the offence under various
      provisions of the !PC, Information Technology Act as well as the
      Copyright Act. Keeping in mind the aforesaid case put up against the
ll    appellant, we now advert to the moot question, namely, whether the
      approach of the courts below is correct in refusing to supply the hard
      disk and compact disk to the appellant herein. Request was made by
      the appellant invoking the provisions of Section 207 of the Code. Other
      relevant provision, aid whereof is taken by the appellant, is Section 238
      of the Code. We would, therefore, like to reproduce these two provisions
c     herein:
             "207. Supply to the accused of copy of police report aud
             other documents. - In any case where the proceeding has been
             instituted on a police report, the Magistrate shall without delay
             furnish to the accused, free of cost, a copy of each of the
D            following:-
             (i) the police report,
             (ii) the first information report recorded under section 154;
             (iii) the statements recorded under sub-section (3) of section 161
 E           of all persons whom the prosecution proposes to examine as its
             witnesses, excluding therefrom any part in regard to which a
             request for such exclusion has been made by the police officer
             under subOsection (6) of section 173;
             (iv) the confessions and statements, if any, recorded under section
 F           164;
             (v) any other document or relevant extract thereof forwarded to
             the Magistrate with the police report under sub-section (5) of
             section 173;
             Provided that the Magistrllte may, after perusing any such part of
 G           a statement as is referred t in clause (iii) and considering the
             reasons given by the police officer for the request, direct that a
             copy of that part of the statement or of such portion thereof as
             the Magistrate thinks proper, shall be furnished to the accused:
             Provided further that if the Magistrate is satisfied that any
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 TARUN TYAGI v. CENTRAL BUREAU OF INVESTIGATION                               677
                   fA. K. SJKRI, J.l

      document referred to in clause (v) is voluminous, he shall, instead     A
      of furnishing the accused with a copy thereof, direct that he will
      only be allowed to inspect it either personally or through pleader
      in Court.
          xx                      xx                          xx
                                                                              B
      238. Compliance with section 207. - When, in any warrant-
      case instituted on a police report, the accused appears or is brought
      before a Magistrate at the commencement of the trial, the
      Magistrate shall satisfy himself that he has complied with the
      provisions of section 207."
     8. Section 207 puts an obligation on the prosecution to furnish to the    c
accused, free of cost, copies of the documents mentioned therein, without
any delay. It includes, documents or the relevant extracts thereof which
are forwarded by the police to the Magistrate with its report under Section
173(5) of the Code. Such a compliance has to be made on the first date
when the accused appears or is brought before the Magistrate at the            D
commencement of the trial inasmuch as Section 238 of the Code warrants
the Magistrate to satisfy himself that provisions of Section 207 have
been complied with. Proviso to Section 207 states that if documents are
voluminous, instead of furnishing the accused with the copy thereof, the
Magistrate can allow the accused to inspect it either personally or through
pleader in the Court.                                                          E

      9. Learned counsel for the appellant referred to the aforesaid
provisions and argued that it was his right to receive the documents in
question relied upon by the prosecution, in the absence of which the
appellant would not be able to put up his defence effectively. He also
submitted that the complainant had filed a suit bearing CS (OS) No. 792        F
of2008 against the appellant seeking to restrain him from using/selling
the said/similar software or its versions. The Division Bench of the High
Court declined to a.ttach the bank account of the appellant in which
monies were generated from the sale of the disputed software. The said
suit came to be dismissed for non-prosecution on October I 5, 2_0 I 4,         G
thus, demolishing the argument of the CBI that the appellant can misuse
the same to the detriment of anyone much less the complainant who
claimed to have a copyright in the same. It was pointed out that the CBI,
 in the second FIR against one accused Rupesh Kumar, has conceded to
 supply the mirror image/copies of the CDs, i.e. the questioned documents,
 and accepted the finding of the courts below wherein it has been held         H
678             SUPREME COURT REPORTS                             [2017] I S.C.R.


A     that 'there is no answer from the CBI whether the software is unique
      and there is no other software in the market for the recovery of lost
      data'.
           10. It is clear from the above that the CBI had seized some hard
      disks marked Q-2, 9 and 20 from the premises of the appellant which
B     contained the source code of the data recovery software. Defence of
      the appellant is that this source code was exclusively prepared by him
      and was his property. On the other hand, case of the prosecution is that
      the recovered CDs are in fact same or similar to the software sto!en in
      2005. In a case like this, at the time of trial, the attempt on the part of the
      prosecution would be to show that the seized material, which contains
c     the source code, is the property of the complainant. On the other hand,
      the appellant will try to demonstrate otherwise and his attempt would be
      to show that the source code contained in those CDs is different from
      the source code of the complainant and the seized material contained
      the source code developed by the appellant. It is but obvious that in
D     order to prove his defence, the copies of the seized CDs need to be
      supplied to the appellant. The right to get these copies is statutorily
      recognised under Section 207 of the Code, which is the hallmark ofa
      fair trail that every document relied upon by the prosecution has to be
      supplied to the defence/accused at the time of supply of the chargesheet
      to enable such an accused to demonstrate that no case is made out
E     against him and also to enable him to prepare his cross-examination and
      defence strategy. There is no quarrel up to this point even by the
       prosecution. The only apprehension of the prosecution is that if the
      documents are supplied at this stage, the appellant may misuse the same.
           11. The aforesaid apprehension of the prosecution is based on the
 F    opinion of Government Examiner (Expert) who has opined that if the
      cloned copy of the hard disk was required, then the same could be
      prepared by the laboratory on supply of new hard disk of 500 09 but
      such cloned copy could not be write protected. Cambridge Dictionary
      defines "write protect" in the following manner:
G            "to protect the data on a computer disk so that it cannot be changed
             or removed by a user"
          Likewise, Collins Dictionary defines the term "write protectLd" as
      under:
             "(of a computer disk) having been protected from accidental writing
H            or erasure"
  TARUN TYAGI v. CENTRAL BUREAU OF INVESTIGATION                                679
                    fA. K. SIKRI, J.l

    In view of this opinion of the Expert, it needs to be ensured that the      A
appellant, when given the cloned copy of the hard disk, is not able to
erase or change or remove the same. If that can be achieved by putting
some safeguards, it would be the ideal situation inasmuch as provisions
of Section 207 of the Code which ensure fair trial by giving due
opportunity to the accused to defend himself shall be fulfilled and the
                                                                                 B
apprehension of the prosecution would also be taken care of.
     12. We find that CBI, under similar circumstances in the case of
Rupesh Kumar, accepted the order of the trial court whereby directions
were given to the CBI to supply the hard disk. In the said case, the trial
court found that there was no answer from the CBI whether the software
in question was unique and there was no other software in the market            c
for the recovery oflost data from the logical cracked hard disk. Number
of softwares are available in the market which negated the arguments
of CBI that by supplying the mirror image of the documents, the
complainant will lose its money and it will be in violation of the Copyright
Act, 1957. In that case, the Court took undertaking from the appellant          D
that he would not misuse the copy of cloned CD. We, thus, are of the
opinion that in order to comply with the provision of Section 207 of the
Code, the hard disks marked Q-2, 9 and 20 be supplied to the appellant
subject to the following conditions:
        (a) Before supplying the said CDs, the contents thereof shall be         E
        recorded in the Court, in the presence of complainant as well as
        the appellant and both of them shall attest the veracity thereof by
        putting their signatures so that thare is no dispute about these
        contents later thereby removing the possibility of tempering thereof
        by the appellant.
                                                                                 F
        (b) The appellant shall not make use of the source code contained
        in the said CDs or misuse the same in any manner and give an
        affidavit ofundertaking to this effect in the trial court.
      13. The appeal stands allowed in the aforesaid terms.
                                                                                G

Nidhi Jain                                                    Appeal allowed.