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Judgment
O R D E R
This petition has been filed by the 1st accused in Crime No. 1722 of 2025 of Kottiyam Police Station, Kollam City, registered for offences punishable under Sections 74, 75(2), 126(2), 115(2), 296(b), and 132 read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS), challenging the order dated 27.11.2025 passed by the Judicial First Class Magistrate-II, Kollam, in CMP No. 3726 of 2025.
The allegation in the said case registered against the petitioner is as follows:
On 13.10.2025 at about 3.00 p.m., while the de facto complainant, who is working as the Deputy Manager of the State Bank of India, along with her collegue approached the petitioner in his house, to discuss about the arrears of loan availed by him from the said bank, the petitioner and his friend used filthy language against the de facto complainant and physically assaulted her and thereby obstructed her from discharging her official duty. Moreover, it is alleged that when the de facto complainant entered an autorickshaw, the petitioner intercepted the said vehicle, fisted her , assaulted her and thereby outraged her modesty.
I have heard the learned counsel for the petitioner as well as the learned Senior Public Prosecutor.
According to the learned counsel for the petitioner, the allegations levelled against the petitioner are absolutely baseless and it was the de facto complainant and her colleague who misbehaved towards him. It is contended that the crime against the petitioner has been registered suppressing the real matters that transpired. According to the learned counsel, during the course of the investigation, the mobile phone used by the petitioner at the relevant time was seized by the investigating officer. Aggrieved thereby, the petitioner filed an application under Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking interim custody of the said mobile phone. The learned Magistrate allowed the application, however, while granting interim custody, certain conditions were imposed which, according to the counsel, are onerous and are likely to prejudice the defence proposed to be raised by the petitioner during the trial. Moreover, the learned counsel invited the attention of this Court to the impugned order, wherein it is recorded as follows by the learned jurisdictional Magistrate:
“ I am prima facie satisfied that the petitioner is real owner of the mobile phone and is entitled to get the interim possession of mobile phone which were seized by Kottiyam police station in Cr. No.1722/2025. No one has come up seeking the custody of the said article so far. If it remains unused it will be destroyed and petitioner will be put in great hardship. Considering the apprehension of the SHO that the mobile contains message relating to a women and if it spreads in social media it will cause mental agony to the defacto complainant hence the mobile phone is released on condition of that to delete any such images in the mobile phone in the presence of investigating officer and with the assistance of Cyber experts without the scope of retrieving it. Moreover the SHO also reported that the images were already copied by them to pendrive. The petitioner shall intimate the investigating officer prior to the release for taking steps.
1.The mobile phones are released to the interim custody of the petitioner on executing a bond for Rs.20,000/-(Rupees twenty thousand only) with two solvent surety for the like sum.
2.Petitioner shall undertake to produce the said mobile phone as and when directed by the court for investigation or trial purpose in the same condition as it is now.
3.The petitioner shall produce three photographs of the mobile phone and a CD containing the same taken in such a manner that its make, name, colour are clear and duly attested by the petitioner and the counsel for the petitioner along with a certificate w/s. 63(4) of BNSS.
4.If the petitioner intends to sell or exchange the mobile phone, a permission from the court must be obtained.
5.The property section clerk shall prepare a panchanama of the article.
6.The mobile phone shall not be used for committing any offences under law.”
According to the learned counsel for the petitioner, if the video recordings are deleted in terms of the directions contained in the impugned order, without preserving the unedited version as part of the records of the Court, he would be deprived of the opportunity to rely upon and produce the original video during the defence stage of the trial. The learned counsel for the petitioner, therefore, seeks modification of the condition imposed in the impugned order passed by the learned Magistrate directing deletion of the contents of the mobile phone.
It is not in dispute that the mobile phone belonging to the petitioner/accused no. 1 was seized by the police in connection with Crime No. 1722 of 2025 of Kottiyam Police Station. It is evident from the impugned order itself that the learned Magistrate was satisfied that the petitioner is the owner of the mobile phone and is entitled to its interim custody. The grievance of the petitioner is confined to the direction contained in the impugned order requiring the Station House Officer concerned to delete the messages and other contents stored in the mobile phone before releasing it to the petitioner. According to the petitioner, the entire incident which culminated in the registration of the crime was recorded in the said mobile phone and, if the video recordings are deleted pursuant to the direction issued by the learned Magistrate, the petitioner would be seriously prejudiced in effectively defending the criminal case registered against him. It is also contended that the said video recordings constitute material evidence in support of the defence proposed to be raised by the petitioner and that their deletion would deprive him of an opportunity to establish his innocence.
I find considerable force in the apprehension expressed by the petitioner. If the direction issued by the learned Magistrate to delete the video recordings from the mobile phone stands to be sustained, the same will seriously prejudice the defence of the accused by depriving him of material evidence which he proposes to rely upon during the trial. At the same time, this Court is conscious of the privacy rights of the alleged victim, who is a woman. Such privacy concerns, however, can be adequately safeguarded by imposing appropriate conditions upon the petitioner while granting interim custody of the mobile phone.
In the above circumstances, I am of the view that, to obviate the prejudice likely to be caused to the petitioner, it is necessary to set aside the direction contained in the impugned order requiring deletion of the video recordings, messages, and other contents from the mobile phone before its release.
Accordingly, this Criminal Miscellaneous Case is allowed, and the above-said direction contained in the impugned order is set aside. However, it is made clear that the petitioner shall not publish, circulate, transmit, or otherwise disseminate any of the messages, video recordings, or other contents stored in the mobile phone in any manner whatsoever.
The learned counsel for the petitioner has further submitted, on the basis of the additional documents placed on record, that the petitioner has already filed an application before the learned Magistrate seeking a direction to forward the mobile phone to C-DAC, Thiruvananthapuram, for preservation of the video recordings contained therein. Having regard to the nature of the relief sought, it is desirable that the said application be considered expeditiously. Accordingly, the learned Magistrate is directed to consider and dispose of the said application, on its own merits and in accordance with law, as expeditiously as possible, and in any event within a period of one week from the date of receipt of a copy of this order.
APPENDIX OF CRL.MC NO. 126 OF 2026
PETITIONER ANNEXURES
Annexure A1 THE COPY OF FIR IN CRIME NO.1722/2025 OF KOTTIYAM POLICE STATION DT.13.10.2025
Annexure A2 THE COPY OF ORDER DT. 27.11.2025 IN CRL.MP NO.3726/2025 ON THE FILE OF JFMC-II, KOLLAM
Annexure A3 THE COPY OF PETITION IN CRL.M.P NO.1/2026 IN CRIME NO.1722/2025 DATED 16.2.2026 ON THE FILE OF JFMC-II, KOLLAM