The main legal point established in the judgment is that electronic records contained in a seized mobile phone can be used as evidence in a criminal case, and the court may reject an application for release of the mobile phone if it is deemed necessary for further investigation and trial.

JUDGMENT :

M.M. Das, J. - Heard learned Counsel for the Petitioner and the learned Counsel for the State.

2. This is an application u/s 482 Code of Criminal Procedure where the Petitioner has impugned the order dated 29.2.2008 passed by the learned S.D.J.M., Bhubaneswar in Misc. Case No. 128 of 2008 arising out of G.R. Case No. 2073 of 2007. The said G.R. Case has been registered against M/s. Anu Nuts and Fruits for commission of alleged offences under Sections 418/420/468/471/273/472/34 IPC and the Criminal Case is being investigated by the C.I.D, C.B., Orissa, Cuttack in C.B.P.S. Case No. 13 of 2007.

3. During the course of investigation, the Investigating Agency seized one Samsung Mobile Phone allegedly belonging to the Petitioner. Charge sheet has been filed, but investigation has been kept open u/s 173(8) Code of Criminal Procedure.

4. The Petitioner filed Misc. Case No. 128 of 2008 in the aforesaid G.R. Case u/s 457 Code of Criminal Procedure jointly along with one Abhisek Kar for release of one mobile phone and two Laptops in favour of Abhisek Kar and the Samsung mobile phone in favour of the present Petitioner.

5. After hearing the learned Counsel for the parties, the learned S.D.J.M., Bhubaneswar, by the impugned order held as follows:

...Perused the case record including the report of the I.O. After hearing both the learned Counsel for both the parties and considering the report that the seized mobile is required for further investigation I reject the petitions filed u/s 457 Code of Criminal Procedure separately.

6. Mr. R.K. Nayak, learned Counsel for the Petitioner vehemently argues that the learned S.D.J.M. has committed an error in disallowing the application for release of the mobile phone of the Petitioner even though preliminary charge sheet has already been filed and the mobile hand set can, in no way, be required for further investigation.

7. It is an admitted position that from a mobile hand set, which is an electronic gazette, datas with regard to calls made and recorded, even to the extent of datas with regard to contents of such calls, can be retrieved. Further, Section 39 of the Indian Evidence Act, 1872 has been amended prescribing the evidence to be given when a statement forms part of a conversation and contains an electronic record. For convenience, Section 39 of the Indian Evidence Act is quoted hereunder:

39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers - When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

And again, new Sections 65A and 65B have been introduced in the Indian Evidence Act. Section 65A prescribes that the contents of the electronic records may be proved in accordance with the provisions of Section 65B of the Evidence Act and Section 65B prescribes that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record, which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions prescribed in the said section are satisfied.

8. In the present case, considering the nature of allegations made, it cannot be ruled out that the mobile handset and the Laptops seized during the investigation may contain electronic records, which can be capable of being proved during the course of the trial of the case. No error, therefore, can be f