Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4784 of 2018 Applicant :- Vikas Sahni Opposite Party :- State Of U.P.
Counsel for Applicant :- Durgesh Kumar Singh,Anil Kumar Rai Counsel for Opposite Party :- G.A.,Brijesh
Hon'ble J.J. Munir,J.
Sri Narendra Kumar, Scientific Officer from the Forensic Science Laboratory, Lucknow has appeared before the Court in compliance with the order dated 15.03.2018. He has assisted the Court in understanding of the limitations in opening what is called a 'Digitally Patterned Lock Device' relating to the mobile phone in question. He has done so to the satisfaction of the Court . He need not appear in the matter any further and his appearance is exempted.
This is an application for bail on behalf of Vikas Sahni in connection with Case Crime No.0629 of 2017 under Sections 354-C, 354-D, 328, 306 IPC and Section 7/8 POCSO Act, P.S.
Sahjanwan, District Gorakhpur.
Heard Sri Durgesh Kumar Singh, learned counsel for the applicant, Sri Brijesh, learned counsel for the complainant and Sri Indrajeet Singh Yadav, learned AGA on behalf of the State.
The submission of learned counsel for the applicant is that the thrust of the prosecution case against him that he captured the deceased while she was bathing on his mobile camera making video clips that have been circulated in the village leading to such embarrassment that she was driven to commit suicide, is all without the slightest of basis or evidence; that it is submitted that this Court by an order dated 08.02.2018 required the allegedly seized mobile handset with the specified IMEI numbers whereon the applicant is said to have captured/shot the objectionable video to be sealed, secured and forwarded to be nearest State Forensic Science Laboratory by the SSP, Gorakhpur in order to ensure that the fact of the offending video clip on the mobile device is verified with the report being submitted to the Court also verifying whether the video clip is in fact one that is primary data on the mobile device or is transferred to it from another device/handset; that in compliance of the said order Sri Narendra Kumar, Scientific Officer from the Forensic Science Laboratory, Lucknow who appeared in Court today submitted that the mobile device in question though has its data transferred to a CD but the same cannot be accessed or viewed to verify the existence of the offending video as it is locked by what is called a 'Digitally Patterned Lock Device' which the Forensic Science Laboratory does not have the requisite scientific means to open; that he further points out that it was clarified by the Scientific Officer from the Forensic Science Laboratory, Lucknow who appeared in Court that the data from the mobile device (Sim Card, Marked S1 and S2) to the CD (Marked A) as mentioned in the report dated 13.03.2018 annexed to the counter affidavit by the State as CA1 cannot likewise lead to view the contents of the video clip as secondary evidence for the same reason that the original that has been transferred to the CD is guarded by the 'Digitally Patterned Lock Device'; that in the submission of learned counsel for the applicant in such state of evidence for the present, there is no tangible evidence available of the fact that the alleged video clip over which the deceased committed suicide was ever shot or recorded by the applicant on his mobile camera/mobile phone; that he submits that the entire prosecution story about the applicant capturing the deceased while she was bathing is false, may be a cruel joke played by someone in the village through rumour mongering but the same has no involvement of the applicant who has been falsely reported to the police by the distressed family of the deceased on the basis of suspicion and conjecture; that the police also as the state of evidence would show have not been able to collect any material in support of the allegations in question in view of which the continued detention of the applicant as an under trial is not at all warranted.
Learned AGA has opposed the prayer for bail with the submission that the applicant has committed a heinous crime driving a young girl of 13 years to commit suicide by capturing on his mobile camera while she was bathing, invading her privacy and later on circulating the video clip to natives of the village, causing the deceased to be fatally embarrassed. The learned AGA has further submitted that the applicant cannot be allowed to make capital of the technical limitation that the FSL, Lucknow have in accessing the data on the seized mobile device due to the 'Digitally Patterned Lock Device'. He submits that it is a matter which requires to be determined at the trial after other scientific avenues of accessing the data on the mobile device are applied and the basic fact of the offending video clip being captured is determined. It is not a case where the applicant can be restored to his liberty pending trial where he would further block the possibility of accessing the digital data in question and may destroy evidence.
Considering the overall facts and circumstances of the case, the nature of the allegation, the gravity of the offence, the fact that a young girl of 13 years and a little more has been driven to commit suicide by the alleged act attributed to the applicant, the fact that a girl would not do so unless there were some firm basis for her to be embarrassed in the manner alleged in the village community, the fact that the applicant has caused data on the two mobile sets seized from him to blocked from access by placing a 'Digitally Patterned Lock Device' which the Forensic Science Laboratory are finding impossible to access, but without expressing any opinion on merits, this Court does not find the applicant to be entitled to bail at this stage.
It is made clear that anything said in this order will not influence the trial court in arriving at its conclusions based on evidence led at the trial.
Accordingly, the application for bail stands rejected at this stage.
Liberty is given to the applicant as an when the primary data restored on the mobile device seized by the police from the applicant becomes accessible through any means either by assistance offered by the applicant or by some better equipped Forensic Science Laboratory to renew his plea for bail if so advise based on the accessed contents of the video clip stored on his mobile device or Sim Cards in the mobile phone in question.
The trial court is directed to expedite proceedings and conclude the trial preferably within six months next from the receipt of a certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar vs. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence.
Let a copy of the order be certified to the court concerned for necessary compliance.
Order Date :- 29.3.2018 Deepak