New Delhi, March 26
Hands of investigators couldn’t be tied to prevent them from collecting evidence, a Delhi court has said on a plea by an advocate seeking direction to police to retrieve only relevant information from his hard disk in a case of alleged tutoring of a witness in the northeast Delhi riots.
Advocate Mehmood Pracha is representing some of the accused in the cases related to the riots that took place in the national capital in February last year.
His office was raided by the Delhi Police in connection with an FIR alleging that the advocate tutored a witness to initiate a false riots case.
He had moved the court seeking directions for retrieval of relevant information from his hard disk and raised concerns regarding protection of his client’s data.
Chief Metropolitan Magistrate Pankaj Sharma said the court’s intervention in the case was not proper and an accused cannot dictate the investigating officer (IO) about the mode and manner for collection of evidence in an investigation.
The court said the search warrant can be executed in accordance with law subject to the safeguards as per expert opinion.
“The collection of evidence is intrinsic to the investigation and hands of the investigators cannot be tied to prevent them from collecting evidence. The collection of data from its source is done to ensure its admissibility during trial and it is imperative for the IO to collect the best form of evidence during investigation as per its own discretion,” the court said.
“If the IO feels that ‘target data’ is to be retrieved from its source which is hard drive of the computer of the applicant for the purpose of investigation, the decision of the IO cannot be interfered with by the court nor accused can dictate him as to how evidence is to be collected, if it is clear that the other data can be protected from being interfered with by the IO,” it said in its order passed on March 25.
Pracha moved the sessions court against the order, which will hear the matter on March 27.
The magistrate court, in its order, noted the situation was different in the matter as the data was to be collected by the police on account of investigation in a criminal case and hence the plea for non-sharing data of other clients of Pracha was beyond the scope of section 126 of the Indian Evidence Act.
“The court’s intervention is not proper and also accused cannot dictate the IO about the mode and manner for collection of evidence in an investigation. Accordingly, in the considered view of this court, the objections raised by the applicant (Pracha) are baseless,” it said.
It also said expert opinion reflected that the “target data” can be stored/ copied/ retrieved in a pendrive/memory device without interference to other data stored in a hard disk.
It further said according to the expert opinion, if the hard disk was submitted in the forensic lab, the “target data” can be retrieved without any alteration to the metadata associated with “target data” and without creating any evidential vulnerabilities as the data will be retrieved forensically.
“Also, it will not affect the data stored in the hard disk relating to other clients of the applicant (Pracha),” the court said.
“Through the use of forensic tools, it is possible to safely segregate the ‘target data’ from the other data without any interference/alteration while keeping its authenticity and integrity and at the same time ensuring the admissibility of the ‘target data’ without evidential vulnerabilities,” it said.
The court had earlier stayed the operation of search warrants issued against Pracha.
Pracha had said that a soft copy of the materials was as good as a hard copy under the Information Technology Act.
He had further sought directions to the police for retrieval of data in the presence of a magistrate.
“They want to threaten my clients. That’s their purpose. In the main Delhi riots cases, they say soft copy is equal to hard copy and we would not give hard copy of charge sheet. Here they don’t want a soft copy,” he had said.
During the course of arguments, the advocate had also argued that it was clear from the video of the riots in question that his complaint was not false.
“Larger issues are involved. Entire judicial system is involved. I’m willing to sacrifice myself to save the Constitution. Please protect my clients, Constitution and Evidence Act,” he had added.
The Delhi Police had opposed Pracha’s plea, saying seizing the original hard disk was essential as it ought to be sent to a forensic science laboratory for examination and that a mirror hard disk can be put back into his computer.
The application had alleged that the purpose of obtaining a search warrant was to yet again threaten, intimidate and frighten him.
The police had claimed that it was searching for “incriminating documents” and metadata of the outbox of the official email id of his firm.
The advocate had later moved the court seeking preservation of copies of the video footage of the raids conducted by the Delhi Police at his office on December 24.
A court had directed the preservation of the entire video footage of the police raid at Pracha’s premises. — PTI