Kerala High Court
N. Asifkhan vs Central Bureau Of Investigation on 23 July, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.2506/25
1
2025:KER:57215
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
CRL.MC NO. 2506 OF 2025
CRIME NO.RC/0502024S0002/2024 OF ,
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.1650 OF
2024 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT /
I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL
APPELLATE AUTHORITY, ERNAKULAM
PETITIONERS:
N. ASIFKHAN,
AGED 23 YEARS
S/O NOUSHAR KHAN, ASIF MANZIL, KIZHAKKEPURAM
P.O., AYIROOR, VARKALA, THIRUVANANTHAPURAM, PIN -
695310
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SHRI.VISHNU CHANDRAN
SHRI. RALPH RETI JOHN
SMT.GEETHU T.A.
SHRI.GIRIDHAR KRISHNA KUMAR
SMT.MARY GREESHMA
SMT.LIZ JOHNY
SMT.KRISHNAPRIYA SREEKUMAR
Crl.M.C.No.2506/25
2
2025:KER:57215
RESPONDENTS:
CENTRAL BUREAU OF INVESTIGATION,
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, CENTRAL
BUREAU OF INVESTIGATION, PIN - 682031
OTHER PRESENT:
SRI. SREELAL. N. WARRIER FOR SPL. PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
18.07.2025, THE COURT ON 23.07.2025 PASSED THE FOLLOWING:
Crl.M.C.No.2506/25
3
2025:KER:57215
V.G.ARUN, J
= = = = = = = = = = = = = = = = =
Crl.M.C.No.2506 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 23rd day of July, 2025
ORDER
The petitioner is the 6th accused in S.C No.1650 of 2024 of the Special Judge's Court (SPE/CBI)-I, Ernakulam, wherein he is facing prosecution for the offences punishable under Sections 120B, 323, 324, 341, 342, 355, 306 and 506 of IPC and Sections 3 and 4 of the Kerala Prohibition of Ragging Act, 1998.
2. The prosecution allegation is that the accused hatched a conspiracy and physically assaulted Sidharthan J.S, their co- student AT the Veterinary and Animal Sciences College, Pookode, on the intervening night of 16.02.2024 and 17.02.2024 and abetted him to commit suicide. The crime was initially registered at the Vythiri Police Station and later Crl.M.C.No.2506/25 4 2025:KER:57215 entrusted with the Central Bureau of Investigation. During the course of investigation, three mobile phones belonging to the petitioner were seized from his possession. The petitioner later moved an application seeking interim custody of the phones, which the Special Judge dismissed by Annexure 1 order. Hence, this Crl.M.C.
3. Heard Adv. Krishnapriya Sreekumar for the petitioner and Senior Adv. K.P. Satheesan for the CBI.
4. Learned Counsel for the petitioner submitted that her client's contact numbers and other relevant materials are all stored in his mobile phones and the petitioner is finding it extremely difficult to pull on his life without those essential details. It is further submitted the mobile phones are worth around Rs.1,40,000/- and, being a student, it is not possible for the petitioner to purchase a new phone. According to the counsel, the requisite data has been retrieved from the phones. Hence, no purpose is being served by retaining them. Relying on the decision in Sunderbhai Ambalal Desai v. State of Crl.M.C.No.2506/25 5 2025:KER:57215 Gujarat [(2002) 10 SCC 283], it is contended that the power under Section 451 Cr.P.C ought to be exercised judiciously and balance of convenience is in releasing the seized article to its rightful owner. The counsel then argued that the finding in the impugned order that the extracted data can only be secondary evidence is legally incorrect and made without taking note of the provisions in the Bharatiya Sakshya Adhiniyam, 2023, (BSA for short) particularly, Sections 57 and 61 therein. According to the counsel, the apprehension of the prosecution regarding possibility of the phones being tampered with and the petitioner raising objection regarding acceptability of the retrieved data are misplaced, and the petitioner is willing to give an undertaking that the genuineness and acceptance of the retrieved data as primary evidence will not be questioned. Support for such procedure is drawn from the decision of the High Court of Delhi in Rakesh Kumar Gupta v. Directorate of Revenue Intelligence [2025 SCC OnLine Del 1843] wherein, a similar objection was raised and interim custody Crl.M.C.No.2506/25 6 2025:KER:57215 granted after directing the petitioners therein to appear before the respondent and verify the genuineness of the retrieved data, if they chose to do so.
5. Learned Senior Counsel contended that, in the nature of the allegations and the mobile phones being vital piece of evidence, the well considered order of the Special Judge warrants no interference. It is pointed out that, before the Special Court, the primary reason stated was that the petitioner's study materials are stored in the mobile phones and memory cards. The said grievance stands allayed by the direction in the impugned order to provide copies of those documents from the extracted data to the petitioner. According to the Senior Counsel, the mobile phones contain proof regarding the conspiracy in the form of messages and chats between the accused. Moreover, there is every possibility of the other accused raising objection against acceptance of the electronic data retrieved from the petitioner's phones as primary evidence. Relying on the decision of this Court in Dilip Crl.M.C.No.2506/25 7 2025:KER:57215 v. State of Kerala and Another [2013 (4) KHC 199], it is contended that interim custody cannot be given on the mere asking and whether the seized article is absolutely necessary or not are matters to be decided, depending upon the facts and circumstances of each case.
6. The application for interim custody is rejected on the premise that, while the mobile phones are primary evidence, the data retrieved from them can only be secondary evidence. As rightly contended by the counsel for the petitioner, the retrieved electronic data can be accepted as primary evidence in view of the changes brought about by the BSA, 2023. Being contextually relevant Sections 57 and 61 of BSA are extracted below for easy reference;
"57. Primary Evidence.--Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.--Where a document is executed in several parts, each part is primary evidence of the document.
Explanation 2.--Where a document is executed in counterpart, each Crl.M.C.No.2506/25 8 2025:KER:57215 counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 3.--Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Explanation 4.--Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
Explanation 5.--Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
Explanation 6.--Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.
Explanation 7.--Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence."
"61. Electronic or digital record -Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and Crl.M.C.No.2506/25 9 2025:KER:57215 such record shall, subject to Section 63, have the same legal effect, validity and enforceability as other document."
7. As the retrieved electronic data can be accepted as primary evidence and being prepared to undertake that he will not object to the acceptance of the electronic data retrieved from his mobile phones, rejection of the prayer for interim custody is unjustified. As held by the Apex Court in Basavva Kom Dyamangouda Patil v. State of Mysore and Another [(1977) 4 SCC 358], the object and scheme of the various provisions of the Code of Criminal Procedure appear to be that, where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. The legal position as reiterated in Sunderbhai Ambalal Desai (supra) reads as under;
"7. In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely:
1. owner of the article would not suffer because of its remaining Crl.M.C.No.2506/25 10 2025:KER:57215 unused or by its misappropriation;
2. court or the police would not be required to keep the article in safe custody;
3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."
In the result, the Crl.M.C is disposed of as under; Annexure 1 order is quashed. The court below shall release petitioner's mobile phones on interim custody, by imposing such conditions which the learned Special Judge deems appropriate.
sd/-
V.G.ARUN, JUDGE sj Crl.M.C.No.2506/25 11 2025:KER:57215 APPENDIX OF CRL.MC 2506/2025 PETITIONER ANNEXURES Annexure 1 CERTIFIED COPY OF THE ORDER DISMISSING THE PETITION IN CMP 409/2025 IN SC 1650/2024 ON THE FILES OF III ADDL.SESSIONS JUDGE/ SPECIAL JUDGE (SPE/CBI)- I, ERNAKULAM.