Calcutta High Court (Appellete Side)
Indranil Mukherjee vs The State Of West Bengal & Ors on 28 November, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee C.R.R. No. 2289 of 2016 Indranil Mukherjee
-vs-
The State of West Bengal & Ors.
For the Appellant : Mr. Debasish Roy,
Mr. Ayan Bhttacharjee,
Mr. Sharequl Haque.
For the Opposite Party No.2 : Mr. Uday Sankar Bhattacharyya,
Mr. Anupam Kumar Bhattacharyya,
Mr. Rameshwar Sinha
For the State : Mr. Ayan Basu
Heard on : 03-10-2016 & 28-11-2016
Judgment on : 28-11-2016
Indrajit Chatterjee, J:- This is an application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 wherein the accused-petitioner of G.R. Case No. 610 of 2015 (Bidhannagar South Police Station Case No. 102 of 2015) has assailed the order dated 23rd June, 2016 under Sections 498A/406/384/325 read with Section 34 of the Indian Penal Code.
Mr. A. Bhattacharjee, learned Advocate, led by Mr. Roy, learned Advocate, appearing on behalf of the petitioner, submitted by taking me to the impugned order to convince this Court that if this order passed by the learned Trial Court is to be affirmed, then this petitioner/husband will be debarred from making his suitable defence before the learned Trial Court and it is the claim of the present petitioner/husband that the call records of mobile connection Nos. 9830086158 of Vodafone Mobile Service Ltd., 7044083167 of Bharti Airtel Ltd. and 8902443619 of the Bharat Sanchar Nigam Ltd. He submitted that this is a case under Section 498A etc. of the Indian Penal Code and as such, to establish his defence, the defence has every right to get the opportunity to use before the learned Trial Court at the time of entering into the defence those relevant call records.
Heard Mr. U. S. Bhattacharyya, learned Advocate appearing on behalf of the opposite party no.2/wife, who by taking me to the impugned order submitted that the learned Trial Court duly rejected the said application vide the impugned order as it was not possible for the learned Trial Court to assess at that point of time, what purposes will be served for keeping those call records. Mr. Bhattacharyya further argued that when the order was passed, the learned Trial Court had no power to pass such an order to preserve those call records as it is not a civil litigation and no complaint case has been filed by the husband against the opposite party/wife.
Mr. Basu, learned Advocate appearing on behalf of the State, submitted that the Court will consider as to whether the learned Trial Court had such power to preserve the said call records as the case has already ended in charge sheet and it is at the stage of consideration of charge.
This is the battle between the husband and wife. They are facing litigation under Sections 498A/406 etc. of the I.P.C. This Court in this revisional application is exercising its jurisdiction not only under Sections 397/401 of the Code of Criminal Procedure, 1973 but it is also exercising the inherent power granted to this Court under Section 482 of the said Code. Section 482 gives power to the superior court to undo anything which may cause abuse of process of any court or otherwise secure the ends of justice.
Thus, this Court can very much exercise the power granted to it under that section of the Code. If this Court is satisfied that there will be abuse of process of any court or otherwise, this court by exercising inherent power can secure the ends of justice.
This Court is not unmindful of the fact that the learned Trial Court rejected the prayer of the petitioner/husband mainly on the ground that the accused/petitioner did not file any complaint case against his wife praying for preservation of those call lists etc. It is true that in the instant case before this Court, the Investigating Officer did not take into consideration what would be there in those mobile sets. I am told by Mr. U. S. Bhattacharyya, learned Advocate representing the opposite party, that the accused did not take up the matter with the Investigating Agency.
This Court is not unmindful of the fact that one complaint case (at running page no. 64) is there wherefrom it appears that this husband/petitioner has taken up this matter with the District Consumer Dispute Redressal Forum, Kolkata, Unit-II (Central) through Complaint Case No. C.C. No. 310 of 2016. This Court is not sitting on revision in the civil side to assess whether such an application is maintainable or not. I am leaving the matter to be decided by the said court taking into consideration the order which this Court is being passed today.
This Court is not also unmindful of the fact that the husband/petitioner did not file any complaint case against his wife to get an order for furnishing or preserving of call records of the mobile connection stated above to prove that this opposite party/wife was maintaining illicit relationship with one Dr. Ramkrishna Ghosh.
This Court is more anxious to see that if the vital records are deleted from the server of those mobile providers then the defence will be highly prejudice and there will be nothing left for the petitioner/husband to retrieve of those conversations. If all those go out of the server of those mobile providers, then this accused/petitioner will have no way to defend the case before the learned Trial Court.
The situation before the learned Trial Court may not bind this Court in exercising jurisdiction under Section 482 of the Code of Procedure, 1973. The findings of the learned Trial Court that as because the husband did not file any complaint case, he cannot get such protection from the same criminal court, is not convincing to this court.
It is true that the learned Trial Court had no inherent power to do this and as such, its hands were tied but banking on Section 482 of the Code of Criminal Procedure, 1973, this Court is of the opinion that interest of justice demands that necessary direction be issued to those service providers to preserve the data available in those mobile numbers as this Court can take judicial notice that after two years such conversation will go out of the server system unless it is protected earlier.
Thus, the impugned order passed by the learned Trial Court is set aside on the circumstances stated above by exercising power of this Court under Section 482 of the Cr.P.C.
I direct the learned Trial Court to take up the matter with the Vodafone, Bharti Airtel and BSNL to preserve the call records of the mobile numbers since October, 2013, till the date of filing of the FIR.
Thus, the revisional application is allowed of on contest. The order impugned, so far as it is contrary to the views expressed by this Court, is hereby set aside.
The learned Trial Court will, however, exercise its discretion at the time of trial as to whether the call records so preserved as per order of this court will be relevant before the trial court to dispose of the litigation. The learned trial court will follow the general rule of evidence while admitting such call records or conversations.
Office is directed to communicate this order to the learned Trial Court at once.
(Indrajit Chatterjee, J.) Later:-
After the above judgment was passed, it is submitted by Mr. Bhattacharyya, learned Advocate appearing on behalf of the opposite party/wife, to stay the operation of the impugned order. This Court is not inclined to say in the same tone with him. The prayer for stay is rejected.
Regarding Article 134A of the Constitution of India as to whether there is substantial question of law involved in the matter, this Court is of the opinion that this Court has already answered the point as noted in the order passed today.
The oral prayer made by Mr. U .S. Bhattacharya under Article 134A of the Constitution of India stands rejected.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Indrajit Chatterjee, J.)