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CHEQUE BOUNS CASE

Legal Aspects of Y.S.Jagan case-3. V.Vijaya Sai Reddy – Whether the permission to use a laptop/computer to give necessary instructions to the counsel for preparation of affidavits/petitions/counters to be filed before various authorities in the pending cases can be granted as per prison rules ?

Whether the permission to use a laptop/computer  to give necessary instructions to the counsel for preparation of affidavits/petitions/counters to be filed before various authorities in the pending cases can be granted as per prison rules ?

Mr.V.Vijaya Sai Reddy, who is A.2 in a case in F.I.R. R.C. No.19 (A) of 2011-HYD registered by CBI, filed the petition before the learned Special Judge seeking permission to use Laptop/Computer .But the special court dismissed his application.

        He is a qualified Chartered Accountant and is a partner of M/s. V.S. Reddy SP & Associates Chartered Accounting Firm.  It is serving many clients in the states of Andhra Pradesh, Karnataka and Tamilnadu.  He is a financial advisor to reputed companies. Though he is in judicial custody, his services as Financial Advisor are very much required, and in the absence of the same, the companies would suffer great prejudice besides financial loss.

He is also assisting various advocates in defending/filing various cases filed by/against the said companies before various authorities including the Hon’ble Supreme Court of India, High Courts of Delhi and Andhra Pradesh, Income Tax Appellate Tribunals and before the Enforcement Director, New Delhi.

Therefore, he requires laptop/computer to give necessary instructions and also for preparation of affidavits/petitions/counters to be filed before various authorities.   The petitioner may also be permitted to use Pen Drive/Universal Serial Bus (USB)/Compact Disc (CD) for transferring the data to the advocate/s and that he would not use internet services to the laptop/computer.

 

The C.B.I. objected his petition and as their allegations

Mr.V.Vijaya Sai Reddy played a crucial role in mobilisng investments to the companies promoted by A.1-Jagan.   With the advancements in technology having access to such electronic gadgets i.e. laptop/ computer will not only enable the accused to easily access internet facility with outside world and with other witnesses in the case, but also with such access, the accused would be able to communicate to anybody and everybody in the world and thereby it will adversely affect the prosecution case, and so, the very purpose of keeping him in judicial custody would be defeated.  The investigation is in crucial stage, and if the permission as prayed for, is granted to him, it will adversely hamper the investigation. And further alleged that he has not produced any record to show

whether as per Jail Manual it is permissible or not to use the laptop.

Hence,  prayed for dismissal of the petition of V.Vijaya Sai Reddy.

The learned Special Judge, upon considering the material on record, held that misuse of laptop/computer by Mr.V.Vijaya Sai Reddy, cannot be imagined or stopped or prevented, as such, the said facility sought for cannot be extended to him at the stage when investigation is in progress, and accordingly, dismissed the same.

Challenging the same, a Criminal Petition was preferred before A.P.HIGH COURT.

The Andhra Pradesh Prisons Rules, 1979 (for short, ‘the Rules, 1979’) inter alia deal with rights and duties of prisoners.   Rule 489 (1) of the Rules reads as follows:

‘Every newly convicted prisoner shall be allowed reasonable facilities for seeing or communicating with his relatives, friends or legal advisers with a view to the preparation of an appeal or to the procuring of bail and shall also be allowed to have interviews or to write letters to his relatives, friends or legal advisers, once or twice, or often or if the Superintendent considers it necessary, to enable him to arrange for the management of his property or other family affairs.”

A perusal of the above Rule makes it clear that it would apply to convicted prisoners.

Chapter XXXIX of the Rules, 1979 deals with the rights of under trial prisoners.

In the Note in Rule 746 of the Rules, it is stated that, for the Rules regulating interviews and communications – vide Chapter XXVII would be applicable.  Therefore, Rule 489 (1) of the Rules, 1979 not only applies to convicted prisoners but also to the under-trial prisoners.

Rule 610 of the Hyderabad Prisons Rules came up for consideration before this Court in a decision in T.Nagi Reddy & Ramakrishnareddi v. State of A.P., Hyderabad[1], wherein it is held thus: (para 20)

“The last request is for the use of a typewriter. The petitioners stated that they have to prepare for their defence . It is stated that the records are voluminous and copies have to be prepared for the use of their lawyers. I think, in view of this the request for permission to use a typewriter is justified. It is argued by the learned Government Pleader that under Rule 605 they can be supplied only and writing materiel and typewriter cannot be included in the expression writing material or stationery. I think in the context of the present day, when the typewriter is freely used for correspondence, a broad meaning has to be given to the expression stationery so as to include a typewriter. Apart from this Rule 610 says that unconnected criminal prisoners shall be allowed all reasonable facilities, at proper times and under proper restrictions, for interviewing or otherwise communicating either orally or in writing with their relatives friends and legal advisers. In view of the large volume of the record and necessity for getting the documents typed, it can be said that permission to use a typewriter would be a reasonable facility for communicating with their legal advisers and conducting the defence.”

The above decision has no application to the facts of the present case.  By providing type-writer, there is no possibility of communicating secret information to outside persons or possibility of influencing the witnesses.

Section 31 of the Prisons Act, 1894 reads thus:

“A civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or to receive from private sources at proper hours food, clothing, bedding or other necessities, but subject to examination and to such rules as may be approved by the Inspector General.”

Section 33 of the Prisons Act, 1894 reads thus:

“Every civil prisoner and unconvicted criminal prisoner unable to provide himself with sufficient clothing and bedding, shall be supplied by the Superintendent with such clothing and bedding as may be necessary.”

Both these provisions would clearly go to show that other necessities, including food, clothing and bedding, can be given to the under-trial prisoner subject to examination.

Under Rule 504 of the Rules, 1979, writing materials including service post cards shall be supplied in reasonable quantities to any convict who has permission to write a letter and all letters shall be written at such time and place as the Superintendent may appoint.  A fixed day of the week, preferably Sunday, shall be set apart for letter writing service postage stamps shall be provided for prisoners’ letters.

Similarly, under Rule 506 (1) of the Rules, 1979, unconvicted criminal prisoners and civil prisoners shall be granted all reasonable facilities at proper times and under proper restrictions for interviewing or otherwise communicating either orally or in writing with their relatives, friends and legal advisers.   Under Sub-Rule (3) of Rule 506, when any person desires an interview with an unconvincted criminal prisoner in the capacity of the prisoner’s legal adviser, he shall apply in writing giving his name and address and stating to what branch of the legal profession he belongs and he must satisfy the Superintendent that he is the bonafide legal adviser of the prisoner with whom he seeks an interview and that he has legitimate business with him.   Sub-Rule (4) of Rule 506 provides that any bonafide confidential written communication prepared by an unconvicted criminal prisoner as instructions to his legal adviser may be delivered personally to such legal adviser or to his authorized clerk without being previously examined by the Superintendent.

So, Rules are passed to maintain jail discipline and administration and to the security of the State.   The main object of confining under-trial prisoners in jail is that they do not tamper with the evidence.

There cannot be any dispute that the Prisons Act, 1894 applies to all prisoners including unter-trial prisoners, who are remanded to judicial custody under the orders of the Court.  The provisions of the Act and the Rules made thereunder are applicable to them.

The under-trial prisoners are governed by the said Act and the Rules and are entitled to whatever the facilities that were given to them.

In a decision relied on by the learned counsel for V.Vijaya Sai Reddy in Sunil Batra (II) v. Delhi Administration,[5] it is held that under-trial prisoners shall not be denied any of the community amenities including games, newspapers, books, moving around and meeting prisoners and visitors, subject to reasonable regulation of prison management.

None of the amenities provided in the Jail Manual or in Prison Rules to the under-trial prisoners is violated in this case.

It is also not the grievance of him that the rights conferred upon under-trial prisoners as per the Prisons Act, 1894 and the Rules made thereunder, have been violated or infringed.

The only ground taken by him in this Criminal Petition for permission to use a laptop/computer is to give necessary instructions to the counsel for preparation of affidavits/petitions/counters to be filed before various authorities in the pending cases.

In the absence of any Rule in the Andhra Pradesh Prisons Rules, 1979 for giving permission to an under-trial prisoner to use laptop/computer for giving instructions to his counsel, such a permission cannot be given.

As he is in judicial custody, he can as well give instructions to his counsel whenever they seek interview with him and he can also give written instructions by writing on papers, for preparation of affidavits/petitions/counters.

By allowing him to use pen drive/compact disc/ Universal Serial Bus (USB), there is every possibility of using them for the purpose other than it was permitted to be used.

No doubt, internet disabled laptop/computer, if given, it may not be possible for him to influence the witnesses, but, at the same time, technology has so developed that there is every possibility for using the internet facility by Wify by using strong modem outside the jail premises, even if laptop/computer is disabled.

It is the further apprehension of CBI that due to latest technology, the accused may have access to the internet within India and outside the world by using data cards and further use of such data cards will not have any security check and they can be passed on to the accused by visitors meeting him.

This apprehension of the CBI appears to be correct in view of the vast development in science and technology.   So long as the use of laptop/computer is not misused, it may be useful for any prisoner, including under-trial prisoner, but, at the same time, there is every likelihood of misusing of the facility if the same is provided to the petitioner.

In these circumstances, the possibility of misusing the laptop/computer by him, as apprehended by the CBI, cannot be ruled out.

No provision or rule under the Prisons Act or A.P. Prison Rules is brought to the notice of this Court about use of electronic and computer devices much less a laptop can be permitted to be used by under trial prisoner.

Rights of the prisoners have to be balanced with that of the investigating agency so that there can be a fair trial after investigation is completed.  The petitioner will be having other modes of communicating his defence or revealing facts which are necessary for preparation of affidavits/petitions/counters to be filed before various authorities. Even if the laptop/computer is not provided, the petitioner would not be deprived of his right to defend his case.  No doubt, rights of accused to defend himself in a criminal prosecution is a valuable right conferred on him. But, that stage has not come in this case.   During trial of the case, the accused will be having a full-fledged opportunity to defend him even if the case involves voluminous record.  The stage of investigation, generally, includes proceeding to the spot, ascertaining the facts and circumstances, discovery and arrest of suspected offender, collection of evidence which may consists of examination of accused, recording statements, if thought fit, search of a place and seizure of incriminating material and consideration whether the materials are enough for submitting charge sheet.  So, at this stage, it is not desirable to give permission to the petitioner to use laptop/computer as the use of the same may be in the interest of the petitioner, but not serving the actual purpose of his defence.  It is not a fit case to grant the relief sought for by the petitioner in the trial court and there are no grounds to interfere with the order under challenge.

Their Lordships  dismissed the petition of Mr.V.Vijaya Sai Reddy .

 

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