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Judgment
Heard Mr. S. Chakraborty, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned PP appearing for the State.
On the basis of a complaint filed by a rape-victim [the name is withheld for purpose of protecting her identity] the petitioner has been implicated in Agartala Women PS Case No.52 of 2016 under Section 341/376(1)/506 of the IPC.
In the course of investigation, the petitioner was arrested on 12.07.2016 and produced in the court on 13.07.2016. Mr. Chakraborty, learned counsel for the petitioner has submitted that from that very date, the accused-petitioner was urging the Investigating Officer to seize the mobile phone of the rape-victim and the accused-petitioner for retrieving the text messages which were allegedly exchanged between the rapevictim and the accused-petitioner. Even a formal prayer was made to the Elaka Magistrate but such prayer was rejected. Mr. Chakraborty, learned counsel has further submitted that those materials would reveal the truth contrary to the allegations made against the petitioner.
The Charge-sheet was filed on 11.08.2016. On 03.11.2016, on instruction of the accused the defence counsel communicated a letter to the investigating officer for the same purpose. But nothing positive had taken place. To reiterate the same prayer, this petition under Article 226 of the Constitution of India read with Section 482 of the Cr.P.C. has been filed before this court where it has been urged, inter alia, as under:
"c. Pass an order by directing the investigating agency for further investigation to retrieve the text messages which were communicated between the accused person (present petitioner) and the victim, 1 (One) year prior to the date of alleged incident till the date of alleged incident among the following phone numbers:
i. 9436189783
ii. 7085640240
(Phone numbers given above in i & ii has been used by accused person i.e. the present petitioner)
iii. 9436740279
iv. 8794612115
v. 943653118
(Phone numbers given above in iii, iv & v has been used by the victim and her husband)"
Having been directed by us, the Investigating Officer, Ms. Olivia Debbarma has appeared in person. She has made the statement in the open court that the mobile phone of the victim was seized but no text message could be retrieved from the said mobile phone. But the CDR [Call Details Report] has been collected from the service provider following the due procedure. So far the question of seizing the other mobile phone belonging to the accused person is concerned, the said mobile is in the custody of the accused-petitioner.
In view of the statement made by the Investigating Officer in the open court today that the mobile phone used by the rape-victim has been seized and forensically examined and the statement of the accused-petitioner that his mobile phone is in his custody, this court does not find any reasonable basis of anxiety as demonstrated by the accused-petitioner. The accused-petitioner is permitted by law to adduce any evidentiary material including those for which he has anxiously approached this court.
That apart, the court cannot direct investigating agency to focus on a particular fact in the course of investigation unless, it is clearly demonstrated that the power of investigation has been exercised by a police officer mala fide. Here there is no such allegation against the investigating officer. In the State of Bihar vs. J. A. C. Saldana and others reported in 1980(1) SCC 554 the apex court has observed as under:
"In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordship think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court."
Having observed thus, this petition stands dismissed.
No order as to costs.