P.GOPALAKRISHNAN ALIAS DILEEP Vs. STATE OF KERALA

JUDGEMENT

(1.) I had by order dtd. 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: -

(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 and 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 Sec. 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 and Another, AIR 1965 SC 1251 and the decisions of this Court in Gopalakrishnan Nayanar and Another v. Sasidharan Nambiar and Another (1996) 1 KLT 83 and Kurian v. Joseph and Others, 2021 (2) KHC 124 that the notice under Sec. 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 de-facto 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 relationto 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.