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2019 Supreme(Cal) 945
IN THE HIGH COURT OF CALCUTTA
Manojit Mandal, Joymalya Bagchi, JJ.
Subhendu Nath – Appellant
Versus
State of West Bengal – Respondent
C.R.M. 650 of 2019
Decided On : 18-02-2019
For the Appellant :Prabir Majumder and Snehansu Majumder, Advocates
For the Respondent:Atis Kumar Biswas, Soumyajit Bhatta, Aditi Shankar Chakraborty and Sutapa Banerjee, Advocates
The main legal point established in the judgment is the importance of conducting sensitive and proper investigations involving electronic evidence, and the court's emphasis on the training of the police force in dealing with electronic evidence and the establishment of special cyber cells.
Headnote:
Information Technology Act - Matrimonial Dispute - Sections 66E & 67A - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Sections 66E & 67A of the Information Technology Act in relation to a matrimonial dispute involving the circulation of objectionable pictures on a social network platform. The court emphasized the importance of conducting sensitive and proper investigations involving electronic evidence and issued directions to ensure proper training of police force in dealing with electronic evidence, establishment of special cyber cells, submission of standard operating procedures, and setting up of specialised forensic units.
Fact of the Case:
The case involved a matrimonial dispute where the petitioner was accused of posting objectionable pictures of his wife on a social network platform and widely circulating such materials. The FIR did not initially include offences under Sections 66E & 67A of the Information Technology Act, and the investigation was conducted by an Assistant Sub-Inspector of Police in violation of the provisions of Section 78 of the Information Technology Act.
Finding of the Court:
The court found that custodial interrogation of the petitioner may not be necessary in the present case and granted him anticipatory bail. The court also emphasized the importance of conducting investigations involving electronic evidence in a sensitive and proper manner.
Issues: The issues involved the inclusion of offences under the Information Technology Act in the FIR, the cooperation of the de-facto complainant in the investigation, and the necessity of custodial interrogation of the petitioner.
Ratio Decidendi: The court decided that custodial interrogation of the petitioner may not be necessary in the present case and granted him anticipatory bail. The court also issued directions to ensure proper training of the police force in dealing with electronic evidence and the establishment of special cyber cells.
Final Decision: The court directed that the accused/petitioner be released on bail upon furnishing a bond and sureties, subject to certain conditions, and emphasized the importance of conducting investigations involving electronic evidence in a sensitive and proper manner.
Based on the provided legal document, the key points are as follows:
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The judgment emphasizes the critical importance of conducting sensitive and proper investigations involving electronic evidence, especially in cyber-related crimes (!) (!) (!) .
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There is a recognized need for the police force to be adequately trained in the collection, preservation, analysis, and presentation of electronic evidence to ensure its reliability and admissibility in court (!) (!) .
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The establishment of specialized cyber cells within police departments is mandated to handle electronic evidence efficiently and to assist in cybercrime investigations (!) .
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The court underscores the necessity for standard operating procedures (SOPs) for the preservation, collection, analysis, and production of electronic evidence, with a directive for authorities to develop and submit such SOPs (!) .
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Forensic analysis of electronic devices and evidence is vital for establishing authenticity and reliability, prompting the need for dedicated forensic units (!) .
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The judgment highlights the importance of certification under relevant legal provisions (such as Section 65D of the Information Technology Act) to ensure the admissibility of electronic evidence (!) .
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The court directs the government to ensure proper training of police officers and the creation of specialized units to improve the handling of electronic evidence, including the upgradation of forensic facilities (!) (!) (!) (!) .
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Specific steps are mandated for the authorities, including the submission of reports on the implementation of these directions and the establishment of forensic labs, with a scheduled further hearing (!) (!) .
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The case also illustrates that investigations involving electronic evidence must be conducted with utmost sensitivity, caution, and adherence to legal procedures to prevent tampering or improper handling that could compromise the evidence's integrity (!) (!) .
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The legal process recognizes that electronic evidence is inherently susceptible to tampering and requires meticulous handling to maintain its probative value in judicial proceedings (!) .
These points collectively underscore the importance of specialized training, procedural safeguards, and institutional support to effectively investigate and prosecute cyber crimes involving electronic evidence.
JUDGMENT :
1. Leave is granted to the learned advocate-on-record for the petitioner to correct the cause title by incorporating the offences added to the FIR.
2. Heard the learned advocate appearing for the respective parties.
3. Pursuant to our earlier direction, Superintendent of Police, Nadia as well as the Investigating Officer of the present case are personally present before this court. Their presence is noted and dispensed with at present.
4. The gist of the allegations in the FIR relate to a matrimonial dispute between the petitioner and his wife. It has been alleged in the FIR owing to such discord and with the object of defaming and denigrating her, the petitioner had posted objectionable pictures of his wife on a social network platform and had widely circulated such materials. Although FIR was registered inter alia on such accusations, offences under Sections 66E & 67A of the Information Technology Act were not added to the FIR and the investigation was conducted by an Assistant Sub-Inspector of Police in violation of the provisions of Section 78 of the Information Technology Act.
5. Explanation has been filed on behalf of the Superintendent of Police, Nadia wherein it is stated that offences under Sections 66E & 67A of the Information Technology Act have been added and investigation is presently being conducted by the Inspector-in-charge of the concerned police station. Inspector-in-charge of the concerned police station has also been directed to rectify her mistake in omitting to add offences under the Information Technology Act to the FIR and entrust investigation to an officer not below the rank of Inspector. Such explanation is accepted and kept with the record.
6. It also appears from the report although screen shots of the account of the victim containing chat messages and/or whatsapp messages by the petitioner have been handed over to the Investigating Agency, the de-facto complainant has not responded to the notice issued by the police officers and did not cooperate with the investigation relating to circulation of objectionable pictures on the social media platform without her knowledge and consent.
7. Learned advocate for the de-facto complainant submits that his client had cooperated with the investigation and duly responded to the notices issued upon her.
8. In view of the lack of materials on record that objectionable pictures had been circulated without the consent and knowledge of the de-facto complainant and keeping in mind the pre-existing enmity between the parties, we are of the opinion that custodial interrogation of the accused/petitioner may not be necessary in the facts of the present case and he may be granted anticipatory bail.
9. Accordingly, we direct that in the event of arrest, the accused/petitioner, namely Subhendu Nath, be released on bail upon furnishing a bond of Rs. 10,000/- (Rupees Ten thousand only), with two sureties of like amount each, to the satisfaction of the arresting officer and also be subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure, 1973 and on further condition that he shall meet the Investigating Officer once in a week until further orders.
10. Before parting we feel the necessity to emphasize the importance of conducting investigation involving offences under Information Technology Act and/or offences involving electronic evidence in a sensitive and proper manner.
11. In present times, cyber crimes are on the rise. Evidence with regard to such crime are in the form of electronic records stored in various devices which need to be collected, preserved, analysed and produced in court in accordance with the procedure prescribed under law. There is gross lack of awareness as well as preparedness in the police force to deal with such crimes. It is also not out of place to mention that evidence with regard to ordinary crimes come in the form of electronic records namely, CCTV footage, electronic messages, whatsapp and chat messages on so
