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
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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
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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:
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V.G.ARUN, J
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Crl.M.C.No.2506 of 2025
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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
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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
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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
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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
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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
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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
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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
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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
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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.
