XXXXX v. State of NCT of Delhi & Anr.

1. The petitioner, by way of this revision petition, seeks setting aside of the order dated 25.09.2024 [hereafter „impugned order‟] passed by the learned Additional Sessions Judge (FTSC)(POCSO) - 02, Dwarka Courts, Delhi [hereafter „Trial Court‟] in case arising out of FIR No. 299/2013, registered on 21.11.2013 at Police Station Baba Haridass Nagar, Delhi for commission of offence punishable under Sections 328/342/363/366/368/376 of the Indian Penal Code, 1860 [hereafter „IPC‟] and Sections 6/12 of the Protection of Children from Sexual Offences Act, 2012 [hereafter „POCSO Act‟].

2. Briefly stated, the case of the petitioner-prosecutrix is that on her complaint, the present FIR was registered against the accused/respondent for offences involving sexual assault, abduction, and other serious charges. Upon completion of investigation, a chargesheet was filed and the trial commenced. On 23.02.2024, more than eight months after the closure of prosecution evidence, the accused moved an application before the learned Trial Court seeking to send his mobile phone to the Forensic Science Laboratory (FSL) for examination, purportedly to verify the authenticity of certain messages allegedly sent by the prosecutrix to him during the relevant period.

3. The learned Trial Court, vide order dated 23.02.2024, dismissed the said application on the ground that the trial had already been pending for an inordinate length of time and that the application appeared to be a deliberate attempt to delay proceedings. Aggrieved thereby, the accused approached this Court by way of Criminal Revision Petition No. 452/2024. The Coordinate Bench, vide order dated 08.08.2024, permitted the accused to lead defence evidence and made certain observations in relation to the request for sending the mobile phone to the FSL. The order of the learned Trial Court, in simply dismissing the application, was found erroneous, and the matter was disposed of by granting liberty to the accused to lead defence evidence.

4. Subsequently, the learned Trial Court passed the impugned order dated 25.09.2024, directing the SHO to seize and seal the mobile phone of the accused and send it to the FSL for examination, holding that such a course was mandated by the order of this Court. In compliance, the accused‟s mobile phone was seized and deposited at FSL Rohini on 04.10.2024. The FSL report is still awaited.

5. The learned counsel appearing for the petitioner-prosecutrix submits that the learned Trial Court has misinterpreted the order of this Court dated 08.08.2024 in Criminal Revision Petition NO. 452/2024. It is urged that paragraphs 6 and 8 of the said order clearly reflect that this Court had declined to direct the sending of the mobile phone for FSL examination, and therefore the impugned order is contrary to the directions actually issued. It is further argued that the case has been pending since 2014; the prosecution concluded its evidence in 2023; and at no point during the preceding 11 years did the accused express any intent to send his mobile phone to the FSL or make it part of the chargesheet during investigation. It is contended that the accused, being a terminated police official, is well-versed with procedural loopholes and is attempting to protract the trial.

6. Per contra, the learned counsel appearing for the respondent no. 2-accused submits that the intention of this Court in its order dated 08.08.2024 was to allow the accused to lead evidence in his defence concerning the electronic record, i.e. the messages allegedly exchanged between him and the prosecutrix, and that the genuineness of such messages can only be established through forensic examination of the mobile phone. It is further urged that no prejudice would be caused to the petitioner if the FSL result is placed before the learned Trial Court. It is also contended that the present petition has become infructuous, since the mobile phone was seized by the Investigating Officer on 25.09.2024 and sent to FSL on 04.10.2024, with the report awaited; hence, nothing survives for adjudication and the petition deserves dismissal on this ground alone.

7. This Court has heard arguments addressed on behalf of both the parties and has perused the material available on record.

8. The issue in question is short – that is whether the impugned order dated 25.09.2024 proceeds on a correct or an incorrect understanding of the judgment dated 08.08.2024 passed by the Coordinate Bench of this Court in Crl.Rev.P. No. 452/2024.

9. To appreciate the same, this Court has gone through the judgment dated 08.08.2024, wherein the Court in paragraph 6 of the judgment observed as under:

10. The Coordinate Bench then referred to the decision of Hon‟ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal: (2020) 7 SCC l, and extracted the relevant observations in the said judgment pertaining to Section 136 of Indian Evidence Act (discretion of judge to decide as to admissibility of evidence), and Sections 65A and 65B of Indian Evidence Act (admissibility of electronic records). The said decision was referred to by the Coordinate Bench for discussing the law pertaining to proving of electronic evidence.

11. Further, in paragraph 8 of the judgment, the Coordinate Bench held that:

12. Thus, it is evident from the reading of entire order that the Coordinate Bench was of the view that it was not necessary to forward the mobile phone of the accused for FSL examination, and the learned Trial Court could have decided the accused‟s application for leading defence evidence, by taking into consideration the decision of the Hon‟ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (supra) and then deciding as to whether the electronic evidence sought to be produced by the accused was relevant or not, and if found relevant by the Trial Court, whether such electronic evidence could be admitted in accordance with Sections 65A and 65B of the Indian Evidence Act.

13. Clearly, the Coordinate Bench had nowhere directed that the accused‟s mobile phone is to be seized and sent to FSL. Rather, it only, in essence, remanded back the matter to the learned Trial Court for providing an opportunity to the accused to lead defence evidence in accordance with law – the law which was discussed in paragraph 5 to 7 of the judgment dated 08.08.2024.