Chattisgarh High Court
Lavkush Sharma vs State Of Chhattisgarh on 21 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CR.R. No. 586 of 2022
• Lavkush Sharma, aged 20 years, son of Shri Rajendra Sharma,
R/o. Mahamaya Gate, (behind Indrawatika Bhawan), PS
Ambikapur, Chhattisgarh
---- Applicant
Versus
• The State of Chhattisgarh through the Station House Officer, PS
Ambikapur, Distt. Surguja (CG)
----Non-applicant
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For applicant : Mr. Neeraj Mehta, Adv.
For respondent : Mr. Ishwar Jaiswal, Panel Lawyer.
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Hon'ble Shri Justice N.K. Chandravanshi
Order on Board
21-6-2022
1. This criminal revision has been preferred by the applicant
against order dated 30-3-2022 passed by the learned Special
Judge (Atrocities) Sarguja Ambikapur in Special Sessions Case
No. 16/2021 (State of CG -v- Lavkush Sharma and another) by
which the application filed by the applicant under Section 451 of
the Criminal Procedure Code, 1973 (in short 'Cr.P.C.') for handing
over the mobile in question on supurdnama has been dismissed.
2. Learned counsel for the applicant would submit that Special
Sessions case No. 16/2021 is pending before the Special Judge
(Atrocities), Ambikapur, Distt. Sarguja for the offence punishable
under Section 306/34, 201/34, 509 of the IPC and Section 67, 67A
and 66E of Information Technology Act, 2000 and Section 3/4/6 of
the Indecent Representation of Women (Prohibition) Act, 1986,
which is in the stage of examination of prosecution evidence. He
further submits that one Android mobile phone of Realme
company bearing IMEI No. 862672047999332 with two Sim cards
has been seized from the applicant, which has been examined
also by the Cyber Forensic Lab, Police Headquarter, Raipur and
report in this regard has also been filed with the charge sheet.
The applicant used to deal all his business activities through the
mobile in question, and he is in very much need of the same,
which is lying idle in the custody of police. It is submitted that he
is the owner of the mobile and if the mobile is not given to him in
temporary custody, then being an electronic device, it would
become worthless, but learned trial Court without considering
aforesaid facts has dismissed the application for supurdnama of
mobile, holding that it could be required at the time of evidence,
which is not as per law and is clearly against the judgment of
Hon'ble Supreme Court in Sunderbhai Ambalal Desai -v- State
of Gujrat, [2002 (10) SCC 283].
3. On the other hand, learned State counsel submits that
disputed contents have been found in the mobile seized from the
possession of the applicant. Although he has been mentioned as
owner of the mobile in the impugned order, but material witnesses
have not been examined and the mobile in question is an
important piece of evidence. Hence, the order impugned passed
by the Court below is appropriate.
4. I have heard learned counsel for the parties and perused
the material available on record and the impugned order.
5. Perusal of the impugned order would show that the alleged
mobile has been seized from the possession of the applicant and
necessary investigation like testing from Cyber Forensic Lab,
Police Headquarter, Raipur has been done and report has also
been filed with the charge sheet. If the disputed content of mobile
is still remaining in it, such content could be downloaded in the CD
or other device and panchnama may be prepared, which can be
used at the time of evidence, photograph of alleged disputed
content can also be taken, but only for the reason that the
disputed contents are there in the mobile, denial of interim
custody of said mobile to the applicant does not seem to be
appropriate.
6. The Supreme Court in Sunderbhai Ambalal Desai (supra),
has laid down the guiding principles for releasing the articles
seized by the police. For ready reference paragraph 7 of the said
judgment is reproduced below :-
"7. In our view, the powers under Section 451 Cr.P.C.
should be exercised expeditiously and judiciously. It would
serve various purposes, namely:
1. owner of the article would not suffer because of
its remaining 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."
7. The alleged article for which interim custody is sought, is a
mobile phone, which is an electronic device, if it is kept in
stationed condition for long, then being electronic device, it may
get damaged and the mobile phone would become useless. It has
also been mentioned in the impugned order that the applicant has
filed photocopy of the receipt of mobile phone which shows that
he is owner of the same. Hence, considering the aforesaid facts
and particularly in the light of the guidelines issued by Hon'ble
Apex Court in Sunderbhai Ambalal Desai(supra), I feel inclined
to allow this criminal revision and set aside the impugned order.
8. Accordingly, the impugned order dated 30-3-2022 passed
by learned Special Judge (Atrocities), Ambikapur, Distt. Sarguja
(CG) in Special Sessions Case No. 16/2021 is set aside. The
Revision petition is allowed and it is directed that mobile phone in
question be given in interim custody of the applicant on the
following conditions:-
(i) The applicant shall execute a bond in a sum of 50,000/-
(Rs. fifty thousand) to the satisfaction of the trial Court concerned;
(ii) The applicant shall neither dispose of the mobile in question
nor he shall temper nor delete the contents relevant for this case,
from the mobile phone, till disposal of the trial.
(iii) Before giving custody of the mobile phone in question to
the applicant, contents of the mobile relevant for concerned
Sessions case be downloaded and saved in any other device like
CD or pen drive, and a panchnama in this regard be prepared,
photograph of mobile phone be also taken and the same be
deposited before the trial Court, if the same has not already been
done. The expenses for the same shall be borne by the applicant.
(iv) The applicant shall produce mobile in question either before
trial Court or before such authorities as may be directed, on his
own expenses, as and when directed.
Sd/-
N.K. Chandravanshi
Judge
Pathak/-
