The prosecution has the right to seek the accused to hand over the mobile phones for forensic examination by an agency identified as 'Examiner of Electronic Evidence' under Section 79-A of the Information Technology Act, 2000.

ORDER :

I had by order dated 22.1.2022 in the above bail applications granted an interim order, protecting the petitioners from arrest on a specific condition (among others) that the petitioners shall fully co-operate with the investigation. On 28.1.2022, an application numbered as Crl.M.A. No.2 of 2022 was filed in BA No. 248 of 2022, alleging that the petitioners were not cooperating with the investigation. Primarily, it is pointed out that despite demand, certain mobile phones which were being used by the petitioners were not handed over to the investigation team. The prayer in Crl.M.A. No.2 of 2022 is for a direction to the petitioners in these bail applications to forthwith produce the following mobile phones: -

(1) Mobile Phone bearing IMEI No.356723080949446 of Apple Company;

(2) Mobile Phone bearing IMEI No.356728111838724 of Apple Company;

(3) Mobile Phone bearing IMEI No.868409043310506 of VIVO Company;

(4) Mobile Phone bearing IMEI No.352544473256346;

(5) Mobile Phone bearing IMEI No.864644032210833 of Huawei-Honor;

(6) Mobile Phone bearing IMEI No. 868384058791806 of Redmi Company; and

(7) Mobile Phone bearing IMEI No.863607031095365 of Huawei Company.

When Crl.M.A. No.2 of 2022 was taken up for consideration yesterday, the learned counsel appearing for the petitioners sought time to place an objection and also for time to argue this matter. In view of the urgency pointed out by the learned Director General of Prosecutions, this matter was directed to be listed today.

2. I have heard Sri.T.A.Shaji, Senior Advocate and Director General of Prosecutions, assisted by Sri.P.Narayanan, Senior Public Prosecutor for the State and Sri.B. Raman Pillai, Senior Advocate appearing for the petitioners in BA Nos. 248/2022, 288/2022 & 300/2022, assisted by Sri.Philip T. Varghese.

3. The learned Senior Counsel for the petitioners would point out that a notice had been issued to the petitioners under Section 91 of the Code of Criminal Procedure (for short, “Cr.P.C.”), calling upon them to produce the aforesaid mobile phones. It was submitted with reference to the decision of the Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi & Another; AIR 1965 SC 1251 and the decisions of this Court in Gopalakrishnan Nayanar & Another v. Sasidharan Nambiar & Another (1996) 1 KLT 83 and Kurian v. Joseph & Others, 2021 (2) KHC 124 that the notice under Section 91 of Cr.P.C. was illegal and unsustainable. It is also suggested that any direction to produce the mobile phones would amount to the violation of the right against self-incrimination guaranteed under Article 20(3) of the Constitution of India. It is submitted that some among the phones have been sent to a forensic expert by the petitioners themselves for analysis and data retrieval. It is submitted that the data so retrieved can be handed over for the purpose of investigation. It is also submitted that the petitioners are facing a mighty Police force in a case where the defacto complainant is himself a part of the very agency which is investigating the alleged offence and that the petitioners have no faith in handing over the phones to the investigating agency. It is submitted that personal information (having no relation to the case on hand) and privileged communications may also be revealed if the phones are directed to be handed over. It is submitted that the phones had been sent for data retrieval, in order to show the falsity of the allegations now raised against the petitioners and that the phones had been sent for data retrieval even before the present case was registered.

4. The learned Director General of Prosecutions vehemently submits that there is no question of violation of Article 20(3) of the Constitution of India as the direction to produce a document or a thing does not amount to self-incrimination. It is submitted that the investigating agency has every power to ask for the production of the mobile phones in question as the data contained in the same has to be verified fo