Tarun Tyagi vs Central Bureau Of Investigation
2016 Latest Caselaw 4353 Del

$~57
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
            +      CRL.M.C. 2729/2014 & Crl.M.A. No.9138/2014
                                        Date of Decision : 13th June, 2016

       TARUN TYAGI                                  ..... PETITIONER
                              Through   Mr.Rajat Pahwa, Adv. with
                                        Mr.Ashwin Vaish, Adv.

                              versus

       CENTRAL BUREAU OF INVESTIGATION
       (CBI)                            ..... RESPONDENT
                   Through   Mr.Narender Mann, Spl.P.P. for
                             CBI with Mr.Manoj Pant, Adv. &
                             Mr.Gaurav Wadhwa, Adv.

       CORAM:
       HON'BLE MR. JUSTICE P.S.TEJI

       P.S.TEJI, J.

1. The present petition under Section 482 of the Code of

Criminal Procedure (Cr.P.C.), has been preferred by the petitioner

seeking setting aside of the order dated 6th November, 2013 passed

by the learned Chief Metropolitan Magistrate, Patiala House Court,

New Delhi and further seeking a direction to the Central Bureau of

Investigation to supply a copy of all such documents relied upon

by the prosecution in the case arising out of FIR RC

No.6/2007/EOU-IX, New Delhi registered under Section 66 of the

Information Technology Act, 2000 & Sections 63 & 63-B read

with Sections 14(b)(ii) of the Copyright Act, 1957.

2. A thumbnail sketch of the facts of the case is that the

petitioner was an employee of the complainant company i.e. M/s

Unistal Systems Pvt. Ltd. during the year 2003 to April, 2005.

Learned counsel for the petitioner has submitted that the

complainant company entered into an agreement with the

petitioner whereby the petitioner was entitled to use the products

for writing a book on data recovery and for this purpose, the

complainant company had financed the petitioner. The

complainant company also permitted the petitioner to distribute

free of cost the said product along with the book. Learned counsel

for the petitioner has further submitted that the petitioner is the

Director of M/s Prodata Doctor Private Limited, a company

incorporated under the Companies Act and came into being in

September, 2005 having its registered office in Ghaziabad, U.P.

The said company is engaged in the business of data recovery and

developing software applications for computers. The other

business works that the petitioner's company has undertaken, are

consultancy, training, teaching, data recovery, website promotion,

SIM card recovery, non-forensic investigation etc.

3. An FIR was registered by the CBI on 23rd July, 2007 on the

complaint of one Shri Alok Gupta, Director of M/s Unistal

Systems Pvt. Ltd. in which it was alleged that the petitioner was

one of its employees and thereafter he left the said company and

started his own business. It was further alleged by the complainant

in the FIR that on or around 11th March, 2005, the petitioner had

stolen the sourse codes of a software known as "Quick Recovery"

developed by the complainant company and thereafter put it up for

sale on the website of the company of the petitioner under the

name "Prodatadoctor". A complaint was lodged in Police Station

Nehru Place on 19th March, 2005 regarding theft of source code

and subsequent thereto, an undertaking was obtained from all the

employees to the effect that they have not stolen the same. Learned

counsel for the petitioner has added that the complainant did not

suspect the petitioner at that time and after a lapse of two and a

half year, the said complaint was filed with the CBI. It is

contended by learned counsel for the petitioner that the story set up

by the complainant does not hold water inasmuch as it is the

complainant's own case that the petitioner attended office till the

end of April, 2005 and the salary was paid till May, 2005.

4. It is next submitted by learned counsel for the petitioner that

on 3rd August, 2007, the CBI had conducted seizures of certain

documents from the office/residential premises of the petitioner.

It is alleged that the seizures conducted under Section 165 of the

Code of Criminal Procedure, was without following the procedure

prescribed therein and in the said seizure, the CBI had seized

various hard disks and CDs and other materials of the petitioner's

company. On 17th January, 2008, the petitioner preferred an

application seeking release of the seized property.

5. It is further alleged by learned counsel for the petitioner that

on 22nd January, 2008, the CBI seized the bank account of the

petitioner without complying with the mandatory requirement of

Section 102 of the Cr. P.C. It is submitted that the petitioner

preferred an appeal against the said seizure. In the meanwhile, on

or around 28th February, 2008, the complainant company preferred

a suit being CS (OS) No.792/2008 for perpetual injunction and

damages against the petitioner and such other, alleging

infringement of its copyright of software namely Quick Recovery

for FAT & NTFS. The application of the petitioner for release of

the seized articles including hard disks, was rejected by the Trial

Court vide order dated 10th March, 2008. Thereafter, vide order

dated 18th May, 2009, the Court set aside the order dated 10th

March, 2008 and application of the petitioner for release, was

restored. The CBI filed a chargesheet and cognizance of the

offence was taken on 27th May, 2009 under Section 381 IPC;

Section 66 of Information Technology Act & Sections 63 & 63-B

of the Copy Right Act.

6. Learned counsel for the petitioner has further submitted that

on 3rd September, 2009, the Trial Court directed the investigating

officer to find out as to whether copies of the discs in question can

be prepared with unite protect software, so that the accused cannot

use it till the pendency of the case. Thereafter, on 1st October,

2009, the Govt. examiner of questioned documents, directorate of

Forensic Science, Hyderabad, issued a letter to the IO stating

therein that the cloned copy of the hard disk can be prepared. An

application under Section 207 Cr.P.C. read with Section 238 of the

Cr. P.C. was preferred by the petitioner seeking supply of

deficient copies of documents such as three hard discs and one

compact disc etc. but the said application was dismissed by the

learned Chief Metropolitan Magistrate holding that no cloned

copies of the said hardware containing incriminating evidence can

be prepared with the protected software to avoid its further use by

the accused during the pendency of the case.

7. Learned counsel for the petitioner has alleged that while

passing the impugned order dated 6th November, 2013, the Trial

Court overlooked the fact that the computer science source code is

any sequence of statement and/or declaration written in some

human-readable computer programme language i.e. called High

Level Language. It was stated that the source code which

constitutes a program is usually held in one or more text files,

sometimes stored in databases as stored procedures and may also

appear as code snippets printed in books or other media. Besides

this, it was stated that a large collection of source code files is

known as source tree. The source code may be converted into an

executable file by a compiler or executed on the file from human

readable form with the aid of interpreter. It is contended that the

rewriting of a language which is otherwise freely available online

on the basis of an original idea which the petitioner or such other

person may have carried, is clearly permissible in law unless

specifically barred by statute, which is clearly not the case herein.

Thus the case of the complainant is bad in law to the effect that the

complainant has no copyright in the same. In support of his

submissions, learned counsel for the petitioner relies on the

pronouncements given in Dharambir v. CBI 148 (200*) DLT 289;

Vinod Kumar Jha v. CBI ILR (2009) 6 Del 206; State of

Rajasthan v. Rehman AIR 1960 SC 210; Commissioner of

Commercial Taxes v. Ram Kishan AIR 1968 SC 59 & Sunderlal

Ambala Desai v. State of Gujarat (2002) 10 SCC 283.

8. The sheet anchor for the respondent's version has been that

the accused-petitioner had stolen the source code of a software

developed by the complainant i.e. M/s Unistal Systems Pvt. Ltd.,

known as "Quick Recovery" and the same was put up for sale on

the company owned by him after making some cosmetic changes

in the software for a profit. It is stated that vide order dated 3rd

September, 2009, the Trial Court directed the IO to communicate

in writing to the concerned GEQD and to find out whether the

cloned copies regarding hard discs can be prepared with such unite

protect software embedded upon it and without losing its

evidentiary value and also as such that the accused-petitioner

cannot use it till the pendency of the case and thereafter, if the

GEQD's expert gives an opinion in affirmative that it can be so

done, IO is directed to get prepared a cloned copies and further

copy thereof could not be given to the accused. Thus, the

communication to this effect was given by CBI to Govt. Examiner

of Questioned Documents at Hyderabad on which the Govt.

Examiner opined that if cloned copy of the hard discs was required

then the same could be prepared by the laboratory on supply of a

sterile (new) hard disc of 500 GB hard disc but such cloned copies

could not be write-protected. Thus, on this basis, the learned

Judge, vide order dated 3rd September, 2009, held that it was not

possible to get prepared cloned copies with such unite protect

software and no copy can be supplied to the accused. Learned

counsel for the respondent has further submitted that the said

application contained the original source code Quick Recovery for

FAT and NTFS and as such, the same cannot be supplied to the

accused. Learned counsel for the respondent has further submitted

that except the three hard discs and one compact disc as mentioned

in the application, all other articles and documents have been

supplied to the accused/petitioner.

9. I have heard learned counsel for the parties at length; gone

through the available records and judgments cited by learned

counsel for the petitioner. It is crystal clear from the record that as

per the opinion of Govt. Examiner of Questioned Documents,

Directorate of Forensic Science, the cloned copies of hard disc

which contained incriminating evidence, can be made but at the

same time, it could not be embedded with write protect software

and that if the same is made available without proper protection

with write protect software, there are chances of its being misused

by the petitioner and, therefore, no copy of the same can be

supplied to the petitioner. The findings of learned Chief

Metropolitan Magistrate are free from any infirmity and the

question raised by the petitioner could be looked into only after the

documents are proved by the prosecution i.e. CBI in the course of

trial and questioning the documents at this stage would be a futile

exercise.

10. In view of the above facts and circumstances, this Court is of

the considered opinion that neither any abuse to the process of law

has been established nor any interference is warranted in the

impugned order dated 6th November, 2013 passed by the learned

Chief Metropolitan Magistrate.

11. Before parting with, any observation made above shall not

have any bearings on the merits of the case.

12. As a result of the same, the present petition and application

are dismissed.

(P.S.TEJI) JUDGE JUNE 13th , 2016 aa