DILIP Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the third accused in Crime No. 1533 of 2012 of Pala Police Station registered alleging commission of offences punishable under Sections 120(B), 115, 118, 307 and 388 read with Section 34 of the Indian Penal Code. Even as per paragraph 2 of this petition the gist of the allegation is that the second accused entered into a criminal conspiracy with the first accused to commit murder of one Sreenivasan as the said Sreenivasan was on inimical terms with the second accused. According to the prosecution, it was in furtherance of their common intention to commit murder of Sreenivasan that the second accused hired a car and handed it over to the first accused. The first accused allegedly conspired with the 3rd and 4th accused thereafter and extorted a sum of Rs.3,00,000/- from the second accused by threatening him that they would inform the act of attempt to commit murder of Sreenivasan to police. Evidently, as part of the investigation in that crime the mobile phone belonging to the petitioner was seized under a seizure mahazar and the same was produced before the Court of Judicial First Class Magistrate-I, Pala as thondi article No. T396/2012 in Crime No. 1533 of 2012 of Pala Police Station. Subsequently, the petitioner herein filed CMP No. 9497 of 2012 viz., Annexure-A1 before that Court and by Annexure-A2 the said petition was dismissed. It is challenging Annexure-A2 that this petition has been filed.

(2.) I have heard the learned counsel for the petitioner as also the learned Public Prosecutor.

(3.) The contention of the petitioner is that Annexure-A1 application which is filed under Section 451 CrPC was not properly considered by the learned Magistrate and as such Annexure-A2 order whereby Annexure-A1 was dismissed is liable to be interfered with. It is further contended that the petitioner is entitled to get the interim custody of the mobile phone which is thondi article No. T396/2012 in Crime No. 1533 of 2012 of Pala Police Station. The learned Public Prosecutor submitted that it is believed that certain informations which may be very relevant and crucial for the purpose of Crime No. 1533 of 2012 relating conspiracy to commit murder of Sreenivasan got encoded in the mobile phone viz., thondi article No. T396/2012 and the question as to whether the phone in question was used for the purpose of extracting money from the second accused by threatening him to convey the information regarding the aforesaid act to others and if so, in what manner and to what extent, are matters which might obtain from decoding the informations in it. In the said circumstances, the learned Public Prosecutor contended that it cannot be said that the granting of interim custody of the said mobile phone would not cause prejudice to the prosecution. Annexure-A2 impugned order would reveal that after considering certain aspects the learned Magistrate arrived at the conclusion that the mobile phone recovered from the petitioner herein is also a property which is involved in the crime and therefore it cannot be released to the custody of the petitioner.