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Judgments of Supreme Court of India and High Courts

Unknown vs State Of West Bengal on 18 February, 2019

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18.02.19

Sl. No.13
AkdPA
[ALLOWED]
C. R. M. 650 of 2019

In Re: An application for anticipatory bail under Section 438 of the Code of Criminal
Procedure filed on 14.01.2019 in connection with Krishnagar Women Police Station Police
Station Case No. 115 of 2018 dated 02.09.2018 under Sections
498A/323/313/506/354/406/34 of the Indian Penal Code and Sections 66E/67A of the
Information Technology Act.

And

Subhendu Nath
… … Petitioner

Versus

State of West Bengal
… … Opposite Party

Mr. Prabir Majumder .. Advocate
Mr. Snehansu Majumder .. Advocate
… … for the petitioner

Mr. Atis Kumar Biswas .. Advocate
Mr. Soumyajit Bhatta .. Advocate
… … for the de-facto complainant

Mr. Aditi Shankar Chakraborty .. Advocate
Ms. Sutapa Banerjee .. Advocate
… … for the State

Leave is granted to the learned advocate-on-record for the petitioner to correct

the cause title by incorporating the offences added to the FIR.

Heard the learned advocate appearing for the respective parties.

Pursuant to our earlier direction, Superintendent of Police, Nadia as well as the

Investigating Officer of the present case are personally present before this court. Their

presence is noted and dispensed with at present.

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The gist of the allegations in the FIR relate to a matrimonial dispute between the petitioner and

his wife. It has been alleged in the FIR owing to such discord and with the object of defaming and

denigrating her, the petitioner had posted objectionable pictures of his wife on a social network platform and

had widely circulated such materials. Although FIR was registered inter alia on such accusations, offences

under Sections 66E 67A of the Information Technology Act were not added to the FIR and the

investigation was conducted by an Assistant Sub-Inspector of Police in violation of the provisions of Section

78 of the Information Technology Act.

Explanation has been filed on behalf of the Superintendent of Police, Nadia wherein it is stated

that offences under Sections 66E 67A of the Information Technology Act have been added and

investigation is presently being conducted by the Inspector-in-charge of the concerned police station.

Inspector-in-charge of the concerned police station has also been directed to rectify her mistake in omitting

to add offences under the Information Technology Act to the FIR and entrust investigation to an officer not

below the rank of Inspector. Such explanation is accepted and kept with the record.

It also appears from the report although screen shots of the account of the victim containing chat

messages and/or whatsapp messages by the petitioner have been handed over to the Investigating Agency,

the de-facto complainant has not responded to the notice issued by the police officers and did not cooperate

with the investigation relating to circulation of objectionable pictures on the social media platform without her

knowledge and consent.

Learned advocate for the de-facto complainant submits that his client had cooperated with the

investigation and duly responded to the notices issued upon her.

In view of the lack of materials on record that objectionable pictures had been circulated without

the consent and knowledge of the de-facto complainant and keeping in mind the pre-existing enmity

between the parties, we are of the opinion that custodial interrogation of the accused/petitioner may not be

necessary in the facts of the present case and he may be granted anticipatory bail.

Accordingly, we direct that in the event of arrest, the accused/petitioner, namely Subhendu

Nath, be released on bail upon furnishing a bond of Rs.10,000/- (Rupees Ten thousand only), with two

sureties of like amount each, to the satisfaction of the arresting officer and also be subject to the conditions
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as laid down under Section 438(2) of the Code of Criminal Procedure, 1973 and on further condition that he

shall meet the Investigating Officer once in a week until further orders.

Before parting we feel the necessity to emphasize the importance of conducting

investigation involving offences under Information Technology Act and/or offences

involving electronic evidence in a sensitive and proper manner.

In present times, cyber crimes are on the rise. Evidence with regard to such crime are in the

form of electronic records stored in various devices which need to be collected, preserved, analysed and

produced in court in accordance with the procedure prescribed under law. There is gross lack of awareness

as well as preparedness in the police force to deal with such crimes. It is also not out of place to mention

that evidence with regard to ordinary crimes come in the form of electronic records namely, CCTV footage,

electronic messages, whatsapp and chat messages on social networking platform etc. Hence, there is a

crying need to train and familiarise members of the police force in the matter of collection, reception,

storage, analysis and production of electronic evidence.

It is also relevant to note that electronic evidence by its very nature is susceptible to tampering

and/or alteration and requires sensitive handling. A breach in the chain of custody or improper preservation

of such evidence render it vitiated and such evidence cannot be relied in judicial proceedings. Necessary

certification under Section 65D of the Information Technology Act is also a pre-requisite for admissibility of

such evidence. Even if such certification is present, reliability of electronic evidence depends on proper

collection, preservation and production in court. Any lacuna in that regard would render such evidence

vulnerable with regard to its probative value. These factors have come to our notice not only in the present

case but also in a number of cases argued before us in recent times.

Under such circumstances, we are inclined to issue certain directions to ensure that the

investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner

and such evidence are collected, preserved and produced in Court in an efficient manner and the pursuit of

truth and prosecution of offenders are not affected due to the lack of expertise and knowledge of the police

force in that regard.

Accordingly, we direct:-

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(a) Director General of Police, West Bengal shall ensure proper training of members of
police force in reception, preservation and analysis of electronic evidence in the police
training schools on a regular basis. At least one officer in the rank of Inspector from
each police station shall attend such training course and shall be certified by the police
training college as an officer who is specialised in the matter of dealing in electronic
evidence;

(b) Investigation of crimes involving offences under Information Technology Act and
offences where electronic evidence plays a pre-dominant part shall be conducted by
the officer/officers who has/have received specialised training in reception,
preservation, analysis and protection of electronic evidence, as aforesaid, in
consultation with specialised agencies;

(c) Every district shall have a special cyber cell comprising of officers who have specialised
knowledge in the matter of dealing with electronic evidence and such special cells shall
render necessary assistance to the local police stations whenever such assistance is
sought for in the matter of investigation of cyber offences and/or offences involving
electronic evidence;

(d) Director General of Police, West Bengal in consultation with experts shall submit a
standard operating procedure with regard to the preservation, collection, analysis and
producing of electronic evidence in criminal cases before this court on the next date of
hearing. He shall also submit report with regard to steps taken with regard to
implementation of directions nos. (a), (b) (c) of this order.

(e) Forensic analysis of electronic evidence and/or devices are of utmost importance in
order to ensure the authenticity and reliability of such evidence. Apprehension with
regard to the authenticity of electronic evidence creates a hurdle in relying on such
evidence when produced before law courts. It is therefore, necessary that specialised
forensic units be set up in the State so as to facilitate examination and/or analysis of
electronic evidence.

We are informed that the Ministry of Home Affairs, Government of India under the
Cyber Crime Prevention Against Women and Children (CCPWC) had approved and
sanctioned an amount of Rs.3.94 crores for setting up ‘Cyber Forensic Lab cum
Training Centre’ for the State of West Bengal.

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Secretary, Home Department, Government of West Bengal is directed to
look into the matter and submit report with regard to upgradation of
facilities relating to examination and analysis of electronic evidence
including implementation of the aforesaid project on the next date of
hearing.

Registrar General is directed to communicate the copy of this order to the Secretary, Home

Department, Government of West Bengal and the Director General of Police, West Bengal for necessary

compliance.

Let this matter appear for further hearing on 11th March, 2019.

Let photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be

handed over to the learned advocate for the parties on usual undertaking.

(Manojit Mandal, J.) (Joymalya Bagchi, J.)

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