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Nidhin Raj vs State Of Kerala

High Court Of Kerala · Decided on 31 May 2023 · Citation: (2023) 05 KL CK 0259

HON’BLE JUDGES
K. Babu, J
ACTS & SECTIONS REFERRED
Code of Criminal Procedure, 1973 — Section 451 · Indian Penal Code, 1860 — Section 376
RESULT
Disposed Of
CASE NUMBER
Criminal Miscellaneous Petition No. 4164 Of 2023
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Judgment

13 paragraphs · 385 words

K. Babu, J

1.

The reliefs prayed for in the Crl.M.C. are as follows:-

(a) Release the phone and permit the petitioner to use the phone; and

(b) Permit the Petitioner’s counsel to access the phone during cross examination; or

(c) In the alternative the Prosecution may be directed to retrieve the chats and communication from the phone between the parties and the same may be given to the Petitioner and Petitioner’s counsel.

2.

Heard.

3.

The petitioner is the sole accused in S.C.No.523 of 2021 on the file of the Court of the Fast Track Special Judge, Chengannur. The petitioner faces charges under Section 376 of IPC and allied offences. The mobile phone used by the petitioner was seized at the time of his arrest and the same has been produced before the Court as a material object.

4.

The petitioner filed CMP No.255 of 2023 under Section 451 Cr.P.C. seeking interim release of the mobile phone which the court below dismissed.

5.

The learned Counsel for the petitioner submitted that in order to establish the defence the communications/chats in the mobile phone are essential.

6.

The prosecution opposed the application under Section 451 Cr.P.C. on the ground that the nude photographs of the victim are there in the phone and if the same is given to petitioner’s custody, there is possibility for misuse. The learned Public Prosecutor submitted that the mobile phone is also involved in Crime No.712 of 2021, wherein investigation is going on.

7.

The prayer of the petitioner is only to permit his counsel to access the phone during cross-examination. The learned Public Prosecutor submitted that the access of the phone shall not be at the risk of misuse. The learned counsel for the petitioner Shri. John Sebastian Ralph made an undertaking that the contents of the mobile phone will not be misused in anyway or disseminated. The submission is recorded.

8.

The right of the petitioner/accused to access the phone for the purpose of cross-examination cannot be denied. Therefore, the trial Court shall permit the petitioner’s Counsel to access the phone recovered from the possession of the petitioner/accused and produced as MO during the cross examination. The trial Court shall see that the contents in the mobile phone are not in anyway misused.

The Crl.M.C. is disposed of accordingly.