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Rajasthan High Court · body

2020 DIGILAW 731 (RAJ)

Bhagwati Lal v. State

2020-12-14

PUSHPENDRA SINGH BHATI

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ORDER 1. In wake of onslaught of COVID-19, lawyers have been advised to refrain from coming to the Courts. 2. This Court perused the material available on record. 3. The petitioners have been arrested in FIR No.53/2019 of Police Station Hathuniya (Pratapgarh) for the offences punishable under Sections 8/15, 8/25 & 8/29 of NDPS Act. They have preferred these bail applications under Section 439 Cr.P.C. 4. Mr. Shambhoo Singh Rathore and Mr. Ravindra Kumar Charan, learned counsels for the petitioners, through video-call, submit that the present petitioners have been arrayed as accused under Section 29 of the NDPS Act on the basis of the statement of the co-accused. 5. Learned counsels for the petitioners further submit that the main accused in this case is one Ganpat Lal, from whom recovery of the contraband had taken place. 6. Learned counsels for the petitioners also submit that except for the statement of the co-accused, there is no other corroborative evidence on record, which could warrant continuance of custody of the petitioners in this case at this stage. Learned counsels for the petitioners further submit that the charge-sheet in this case has already been filed. 7. Learned Public Prosecutor alongwith the concerned investigating officer present in the Court though have opposed the bail application and tried to explain the involvement of the present petitioners, but could not show anything substantial, which could corroborate the involvement of the present petitioners alongwith the co-accused, on whose statement, they have been arrayed as accused. 8. At this stage, this Court asked the investigating officer as to why the present petitioners' tower locations and mobile details, including the call details and inter-calling, were not investigated. Upon this, the investigating officer candidly informed this Court that these kinds of accused persons are using WhatsApp calls, and thus, the evidence on the basis of tower location and the mobile calling, become difficult to gather. 9. In these circumstances and more particularly the fact that the charge-sheet in this case has already been filed, this Court is left with no other option, but to grant bail to the present petitioners. 10. 9. In these circumstances and more particularly the fact that the charge-sheet in this case has already been filed, this Court is left with no other option, but to grant bail to the present petitioners. 10. Thus, having regard to the totality of the facts and circumstances of the case as also the fact that conclusion of the proceedings is likely to take some time, but without expressing any opinion on the merits of the case, this Court deems it just and proper to grant bail to the accused petitioners under Section 439 Cr.P.C. 11. Accordingly, these bail applications filed under Section 439 Cr.P.C. are allowed and it is directed that petitioners (1) Bhagwati Lal S/o Shri Laxmi Narayan Prajapat, (2) Rahul S/o Ashok Patidar and (3) Ashok S/o Shri Babu Lal shall be released on bail in connection with FIR No.53/2019 of Police Station Hathuniya (Pratapgarh) provided each of them execute a personal bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/- each to the satisfaction of learned trial court for their appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial. 12. This Court takes note of the fact that upon being asked, the investigating officer has candidly submitted that the establishment of crime and corroboration of evidence on the basis mobile phones' locations, call records and other evidence are difficult to collect, because the accused persons are utilizing the platform of WhatsApp. 13. This Court, not only in this case, but in number of cases, has got the observation from the concerned investigating officers present in the Court, in which the concerned investigating officers have shown their inability to investigate, on the basis of technological evidence emanating out of the telephonic usage/mobile usage of the accused persons, as they were frequently using the WhatsApp platform, which is end to end an encrypted technology. Though the benefit of such inability of the prosecution/investigation has to be given to the accused, but this Court feels constrained to observe that in heinous crimes, like the crimes punishable under the NDPS Act, the crucial evidence is lost because of the use of WhatsApp platform or any other similar platform by the accused persons. 14. Though the benefit of such inability of the prosecution/investigation has to be given to the accused, but this Court feels constrained to observe that in heinous crimes, like the crimes punishable under the NDPS Act, the crucial evidence is lost because of the use of WhatsApp platform or any other similar platform by the accused persons. 14. The investigating officer present in Court today, when posed with these questions, fairly admitted that such technology is not being used in the investigation, as they have no clue as to how the encrypted technology could be handled, for the purpose of investigation. 15. In the opinion of this Court, the exchange of data could be easily taken from the mobile service provider or the Wi-Fi service provider, whichever are being used to exchange the data, even if the exact transcripts or the content of the talks, still is not available. The exchange of data alongwith the tower location would be a fairly considerable evidence before the Court to get some kind of corroborative evidence connecting the accused persons with the crime. 16. Since this Court is taking note of the issue, wherein prosecution case against a number of accused persons becomes weak, as they are able to escape by using the WhatsApp technology, therefore, this Court deems it appropriate to direct the Director General of Police, Rajasthan to file an affidavit before this Court specifically stating therein as to what instructions have been given to the investigating officers in the State regarding investigating the details in relation to WhatsApp calls being used by the accused persons. 17. The Director General of Police shall also be required to submit in the said affidavit as to the constraints and restraints in investigating such technology, with the help of experts in the Police Department of the State. 18. The Director General of Police shall also take note of the observation made by this Court in this order that the details of any exchange of data on any platform can be taken, and such data is also likely to establish the tower location, mobile location and the data exchange between the two mobile phones, even if not the content. 19. This Court also wants to know the exact nature of the training and protocol being maintained regarding these cases to strengthen the investigation and prosecution in the State of Rajasthan. 20. 19. This Court also wants to know the exact nature of the training and protocol being maintained regarding these cases to strengthen the investigation and prosecution in the State of Rajasthan. 20. In the present times, when the technology is a boon to the society, it creates certain hazards, which have to be matched by the law enforcement agencies to maintain the strength of the arm of rule of law. 21. In the opinion of this Court, the investigating techniques need to be updated and upgraded, so that the persons using social media and data calls could be investigated, and even if the contents of such exchange are unknown, then also the other details of location and magnitude of data exchanged can, in the opinion of this Court, always be explored. 22. Such detailed affidavit shall be filed by the Director General of Police taking all the aforementioned aspects into consideration, while dealing with the data-based telephony. 23. The details of the requisite training of the investigating officers of the State for upgrading them and other steps envisaged as a comprehensive policy of the State Police shall also be mentioned in the affidavit. Such detailed affidavit shall be filed before this Court, in a sealed envelope, by an appropriately designated officer-in-charge having know-how to explain the same, on the next date. 24. List on 01.02.2021. 25. The Registry is directed to bring to the notice of the Director General of Police, Rajasthan, a certified copy of this order.