Supreme Court: Prosecution witnesses having mobile phones not intimating incident to police casts a serious doubt with regard to the genuineness of the prosecution case

Learned Senior Counsel further submits that both P.W. 1-Ali Sher Khan and P.W. 2-Jaan Mohammad have admitted in their evidence that they were possessing mobile phones. She submits that in normal circumstances, after such a dastardly incident had occurred, P.W. 1-Ali Sher Khan and P.W. 2-Jaan Mohammad would have informed the Police about it on their mobile phones. She submits that, however, the same has not been done by them.

{Para 15}

70. Coupled with the fact that though P.W. 1-Ali Sher Khan and P.W. 2-Jaan Mohammad, had mobile phones, they had not informed the Police on phone, also casts a serious doubt with regard to the genuineness of the prosecution case.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 434-436, 442, 437-439 and 440-441 of 2020 

Decided On: 15.12.2021

Jaikam Khan Vs. The State of Uttar Pradesh

Hon'ble Judges/Coram:

L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ.

Author: B.R. Gavai, J.

Citation: MANU/SC/1259/2021,( 2021 ) 13 SCC 716.

Read full judgment here: Click here.

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Whether accused can pray to the court for the preservation of the CDR of the raiding party’s mobile phone to prove his innocence?

 The counsel for the petitioner argued that the petitioner was falsely implicated in the present case by the investigating agency and was not arrested in the manner as alleged in the FIR. The entire prosecution case is planted and concocted. The contents mentioned in the Final Report under section 173 Cr.P.C. regarding the recovery of contraband and manner of arrest are completely false and far away from truth. The investigating agency may destroy the evidence which is required to prove the innocence of the petitioner during the trial of the case. The petitioner along with the co-accused was apprehended/hijacked by the raiding party at toll plaza, National Highway at Pilakhua, Hapur, U.P. in dramatic manner. The petitioner has a right to natural justice and fair investigation and for this it is required to preserve the location chart of the members of the raiding party as mentioned in the FIR along with the location chart and the contact no. of the accused including the petitioner. {Para 4}

7. In the present case, the members of raiding party belong to a specialized investigating agency which carries investigation in the matter of national interest, terrorism, armed dealing, drug paddling and organized criminal activities and for said purpose the members of the raiding party have to remain in touch with the secret informers. It would not be in the interest of the functioning of the investigating agency to preserve CDR of mobile phone of the raiding party as it may cause prejudice to the personal safety/security of the police officials as well as may expose identity of the secret informers. The investigation is already completed.

8. After considering all facts, the relief as prayed for cannot be granted and the petition is dismissed.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(CRL) 1236/2022

 KRISHAN PAWDIA Vs THE STATE, NCT OF DELHI 

 CORAM: HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN 

Decided on: June 03, 2022.

Citation: 2022 SCC OnLine Del 1758. 

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Whether court can direct accused to surrender his mobile phone to investigating officer for forensic examination?

 Bound, as I am, by the law laid down on Oghad (supra) and being in respectful agreement with the view taken by Suraj Govindraj.J in Virendra Khanna (supra) and also having regard to the provisions of Section 45-A of the Evidence Act and Section 79A of the Information Technology Act (for short, “the IT Act”), I hold that

the prosecution has every right to seek that the accused hand over the mobile phones in question for the purpose of forensic examination by an agency identified by the Central Government as ‘Examiner of Electronic Evidence’ under Section 79-A of theInformation Technology Act, 2000. { Para 8}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

BAIL APPL. NO. 248 OF 2022

 P.GOPALAKRISHNAN ALIAS DILEEP Vs  STATE OF KERALA 

PRESENT

 MR. JUSTICE GOPINATH P.

Dated: 29th day of January 2022

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Precaution to be taken by court before releasing Mobile or Laptop on Supratnama

 The aforesaid fiasco had come into being due to the ineptness of the investigating agency as well as the presiding officer in the court in failing to ascertain the IMEI number of the mobile phone before handing over custody of the said article which is alleged to be stolen property to the defacto complainant. Their conduct exposes serious deficiency in knowledge and experience in handling cases involving electronic gadgets. It must be borne in mind when electronic gadgets like mobile phone, tablet, laptop, etc. are subject-matters of theft and are required to be produced during trial as material exhibits of the case, necessary precautions must be taken to ascertain the IMEI number or other unique identification numbers of such equipments including its brand/product name, manufacturing date and other particulars prior to handing over interim custody of such electronic devices to a third party pending enquiry or trial. Handing over a mobile phone or any other electronic devices to a third party by way of interim custody pending investigation, enquiry or trial without ascertaining its IMEI or any other unique identification number is virtually equivalent to handing over interim custody of a motor vehicle to a third party without ascertaining its registration mark and other particulars. Courts dealing with such cases, therefore, must be most careful at the time of handing over interim custody of electronic devices and must bear in mind the following facts while dealing with applications for return of such articles:—

In the event electronic devices like mobile phone, laptop, tablet, etc. are seized as stolen property and are required to be produced and identified during trial, any prayer for return interim custody of such devices pending investigation, enquiry or trial shall not be granted till the IMEI number or other unique identification number, as applicable to the concerned device including its brand/product number and manufacturing details are ascertained and noted in the case records for identification of such device during trial. Till such ascertainment is made the concerned devices shall be retained in safe custody of the Court in accordance with law. {Para 9}

In the High Court of Calcutta

(Before Joymalya Bagchi, J.)

Om Prakash Verma  v. State of West Bengal 

C.R.R. No. 1076 of 2017

With

CRAN No. 3600 of 2017

Decided on September 1, 2017

Citation: 

2017 SCC OnLine Cal 13205 : 2018 Cri LJ 640 : (2018) 1 CHN 100 : (2017) 3 E Cr N 775 : (2017) 4 E Cr N 924 : (2018) 2 Cal LJ 189

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Whether court should deny anticipatory bail to accused if mobile phone by which offence was committed was registered in his name?

Once the mobile phone, which has been used in the commission

of the offence, is registered in the name of the petitioner and the said

number has been issued after the bio-metric verification of KYC of the

petitioner, it is the petitioner, who has to explain as to how the said number

was used for the commission of the offence. Learned counsel for the

petitioner has not denied during the hearing that said mobile number is

being used by the petitioner. Moreover, the said phone is yet to be

recovered. Keeping in view these facts, it is not a case where petitioner

can claim that he is not related to the incident.

Once the recovery of the phone is to be effected, the custodial

interrogation of the petitioner is necessary so as to find out as to whether

petitioner is also involved in any other cases of the similar nature or not.

No ground is made out to allow the petitioner the benefit of pre-arrest bail,

hence the prayer is declined and the petition is dismissed.

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

(202) CRM No. M-6558 of 2020

Date of Decision : 03.06.2020

Shubham Singh Vs  State of Punjab

CORAM :  MR. JUSTICE HARSIMRAN SINGH SETHI

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Precaution to be taken by investigating officer for preserving electronic evidence if mobile phone was used for commission of crime

 In a case in which a mobile phone is used for the commission of the crime, the first and foremost thing the officer should have done was to secure the phone to prevent the destruction/manipulation of data. He should have first recorded the status of the device after taking a photograph and record any on-screen information. If the device was switched on, it should have been switched off and the batteries should have been removed. Turning off the phone would preserve the various information, metadata and call logs and it would also prevent any attempt to wipe off the contents of the phone remotely. The officer also was bound to seize all cables, chargers, packaging, manuals etc. if possible to assist the enquiry and minimise the delays in any examination by the digital evidence specialist. The password/pin of the device, if any, also had to be obtained from the owner of the phone. The phone had to be packed and sealed in antistatic packaging such as plastic bag, envelope or cardboard box and the secured device along with the collected data had to be sent to the digital evidence specialist. Only the said specialist can obtain and copy the digital evidence and also provide an analysis of the evidence. None of these procedures were adopted by the investigating officer. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 7022 of 2018

Decided On: 02.11.2018

 Vijesh  Vs. The State of Kerala and Ors.

Hon'ble Judges/Coram:

Raja Vijayaraghavan V., J.

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Whether marriage can be proved on basis of mobile phone call details?

The appellant has merely relied upon the copy of the
notice issued by him to the respondent to resume cohabitation.
To the said notice the respondent replied that no marriage had
ever taken place and hence there is no question of her resuming
the company of the petitioner. Thereafter, reliance was placed by
the appellant upon an application under the Right to Information
Act asking for mobile phone call details about calls allegedly
made by the respondent and the appellant to each other. Even if
call details show that they had made calls to each other, these call
details would not show that any marriage ever took place
between the parties. It is true that details of marriage ceremonies
is matter of evidence but at the same time petition should prima
facie disclose that some form of marriage took place between the
parties and there should be some prima facie evidence of
marriage in the form of marriage like marriage invitation card,

photographs of marriage, certificate of marriage or details as to
which persons were present in the marriage or details in relation
to marriage ceremonies. Annexing such documents to the petition
was necessary in this case because the respondent had in reply to
the notice of the appellant to resume his company specifically
denied that any marriage had ever taken place. As observed
12)
filed by the appellant.
earlier, all these details are conspicuously lacking in the petition
In view of the above discussion, we find no merit in
this appeal.
APPELLATE  SIDE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

FAMILY  COURT APPEAL No. 37  of  2014.
Mr Raj Amarsingh Gulale (Singhania)
Versus

Mrs Mansi Raj Gulale(Singhania)

CORAM :- SMT. V.K. TAHILRAMANI AND
A.R. JOSHI, JJ.
DATED :- 29th September, 2014.
Citation; 2015(3) ALLMR365

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Whether CDRS of mobile phones are admissible in evidence without certificate as per S 65B of Evidence Act?

That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83, it was held that:

“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof.” In RVE Venkatachala Gounder, this Court held as follows:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior  Court.” [Emphasis supplied] It would be relevant to refer to another case decided by this Court in PC Purshothama Reddiar v. S Perumal, (1972) 1 SCC 9. The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate stage by holding that:

“Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”

27. It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could  have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed inSection 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.

                                                                                 REPORTABLE

Supreme Court of India

Sonu @ Amar vs State Of Haryana on 18 July, 2017

Author: L N Rao

Citation:AIR 2017 SC 3441

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Whether offence under SC and ST Atrocities Act is made out if abuses are given on mobile phone?

 From the above facts it is clear that   the applicant is
alleged   to   have   given   abuses     on   the   mobile   phone     of   Smt.

Sonawane, Health Assistant,   who   is said to have   recorded the
same  in her mobile. On the next day, at 4.30p.m. Smt. Sonawane
played the recording for hearing by the complainant.    Perusal of
the above  proviso   shows that hearing of the  voice/abuses  in  a
recorded mobile  phone  from  the Arogya Sevika,   allegedly  given
by Dr. Kapgate,  the applicant, would not fall in the ingredients of
Section 3(1)(x)  and would not fall within “within public  view”.
At any rate,  the insult   or intimidation  seems to have not been
hurled directly to the   complainant;   but is said to have been
recorded by the  Arogya Sevika   in her mobile phone.   Thus,   the
above provision being penal  provision,  its interpretation admits of
no dilution  and has to be  strictly  interpreted.    It is not possible
for this court  to put something in the provision which is not there.
In the result, I find that prima facie, no offence u/s 3(1)(x) of the
Act of 1989 is disclosed. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR
CRIMINAL  APPLICATION  (ABA) NO.  524/2015
Dr. Gulab  s/o   Ganpat  Kapgate

v 
The State of  Maharashtra

 CORAM :     A.B.CHAUDHARI, J.
DATED :     17th December,  2015.
Citation; 2016 ALLMR(CRI)347

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How to prove identity of mobile telephone instrument in criminal case?

Question is, whether the identity of the said mobile telephone
instrument, as the same one, that had been robbed, has been
satisfactorily established.  It may be recalled that the IMEI number
of   the   mobile   telephone   instrument   has   not   been   brought   on
record.  It was easily possible for the investigating agency to have
collected such information, so as to fix the identity of the mobile
telephone instrument, as the same that was being used by the first
informant Ashok.   Even assuming that Ashok did not know the
IMEI number, it was easily possible to ascertain the same from the
connectivity number i.e. the mobile telephone number itself.  The
same, however, has not been done.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1291 of 2012

ARUN MARUTI WAGHCHAURE V/s. THE STATE OF MAHARASHTRA 

CORAM : ABHAY M. THIPSAY, J.
DATE : 19th MARCH 2015.
Citation; 2015 ALLMR(CRI)4339 Bom

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