New Delhi: The Andhra Pradesh High Court has held that the failure of any accused to submit their mobile phones while in custody cannot be termed as non-cooperation. However, the “investigation agency may not feel deterred in securing further electronic evidence simply because it could not take hold of the mobile phones from the accused”.
With that said, a single-judge bench of Justice V.R.K. Krupa Sagar, earlier this month, granted bail to former MP N. Suresh Babu and businessman Avuthu Srinivas Reddy, arrested by the AP Police this year in a 2021 case of an attack on an office of the Telugu Desam Party (TDP). The state had opposed their bail with the argument that the two had not produced their mobile phones for the police investigation.
In cases brought by the Enforcement Directorate (ED) too, the ruling that the failure of any accused to submit their mobile phones does not amount to non-cooperation and can’t be grounds for keeping them in custody has implications for curtailing the agency’s powers.
Of late, ED cases have increasingly been coming under the scanner of the courts. For instance, on 3 October 2023, a bench of Justices A.S. Bopanna and P.V. Sanjay Kumar, in an ED case against M3M Director Pankaj Bansal under the Prevention of Money Laundering Act (PMLA), ruled, “Mere non-cooperation of a witness in response to the summons issued under Section 50 of the Act of 2002 would not be enough to render him/her liable to be arrested under Section 19.”
Section 50 of the PMLA relates to the powers of summons, production of documents, and giving evidence by authorities, whereas Section 19 entails the power to arrest.
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What the case was
The ruling by the Andhra Pradesh HC came on 4 October when it was hearing the bail pleas of MP N. Suresh Babu and businessman Avuthu Srinivas Reddy in a 2021 case.
The two were charged with different offences under the Indian Penal Code, including rioting, house trespass, mischief, voluntarily causing hurt, criminal intimidation, causing grievous hurt to a person using dangerous weapons, attempt to murder, and theft, along with abetment, criminal conspiracy, and vicarious liability of members of an unlawful assembly in connection with a 19 October 2021 incident.
On that day, the members of Yuvajana Sramika Rythu Congress Party (YSRCP), which was in power then, allegedly approached the TDP’s office in Andhra Pradesh’s Guntur district in vehicles, armed with iron rods, hammers, and hockey sticks. The mob allegedly pushed aside the security guard, forcibly entered the office and demolished the furniture. Then, it, allegedly, attacked several TDP supporters and employees, leaving five injured. Later, based on the statement of one of the injured persons, an FIR was registered.
Pointing out that the crime was registered in 2021, but they were arrested in the case in 2024, Reddy and Suresh Babu argued in court that since they were YSRCP supporters, the present TDP establishment falsely implicated them with purpose.
On the other hand, the state government argued that statements of several persons made to the police confirmed Suresh Babu’s presence during the offence. Several other accused are either absconding or hiding themselves and are yet to be arrested, it said.
Arguing that the accused’s mobile phones are crucial for further investigation, the state government said an investigation agency can recover chats and timelines of the crime or incident from the phones, but Suresh Babu failed to produce or hand over his mobile. The state government claimed that on the one hand, he said he lost the phone, and on the other, he said he gave it to his brother.
What the laws say
Though originating from Roman laws, the right against self-incrimination finds a place in American and English jurisprudence too.
For instance, the US Constitution states, “No person shall be compelled in any criminal case to be a witness against himself…without due process of law.” This principle is called the Fifth Amendment.
Similarly, in England and Wales, this privilege against self-incrimination shields a person from being forced to give documents or information that could incriminate them.
Moreover, one of the fundamental rights enshrined in our Constitution under Article 20(3) is the right against self-incrimination. “No person accused of any offence shall be compelled to be a witness against himself,” it states.
On the factor of mobile phones, Suresh Babu and Reddy relied on the Delhi High Court’s ruling in Sanket Bhadresh Modi vs. Central Bureau of Investigation (2023) and the Supreme Court’s ruling in Selvi vs. the State of Karnataka (2010) — where the courts dealt with the right against self-incrimination as provided under Article 20(3) of the Constitution.
Referring to the single-judge bench’s ruling in the Sanket Bhadresh Modi case, the Andhra Pradesh HC said that the 2023 case dealt with a situation where the bail was opposed on the grounds that the accused was not cooperating with the investigation agency. He failed to provide passwords to retrieve information from the mobile devices seized from him.
The Delhi HC, in that case, ruled that an investigation agency “cannot expect an accused to sing in a tune which is music to their ears especially when the accused is truly protected under Article 20(3)”, citing the 2010 Selvi case. The Supreme Court, through its 2010 judgment, established a legal precedent for protecting personal liberties by ruling that polygraph tests can not be conducted without the accused’s consent.
In 2023, the Delhi HC said, “The trial is ongoing, the applicant cannot be coerced to reveal/disclose the password(s) or, any other like details in view of the aforesaid protection guaranteed to him under the Constitution of India.”
What the court has ruled now
Relying on the well-settled principles of law stated above, Justice V.R.K. Krupa Sagar said the failure of an accused to submit mobile phones when in custody “cannot be termed as non-cooperation from the accused”.
The court also said that simply, because it couldn’t get hold of the accused’s phone, the investigating agency should not feel deterred from securing further electronic evidence.
The material produced, the court said, indicated “some sort of presence” of the petitioners outside the TDP office and showed that they had some role to play in the offence allegedly committed.
“However, their continued detention must be justified by the prosecution, failing which, the court has to necessarily consider the prayer for bail positively. Earlier, the anticipatory bail petitions of these accused were rejected by this court. Their arrest took place after that,” the court said.
While the state government alleged that other accused were still at large and that there was a larger conspiracy, the court said Suresh Babu and Reddy were arrested in September this year and remanded to judicial custody. “Even according to the prosecution, nearly 45 witnesses were examined in this crime. Material objects and electronic evidence were collected, and scores of (the) accused were arrested. Nearly 34 accused were released on bail either by this court or by the court below,” the court said.
Finally, the court said that the petitioners’ occupations and availability through these years indicated they were not likely to avoid the process of the law.
The court also said that given the facts of the case and the nature of the crime committed, it did not find continued detention of the accused persons necessary. It granted them bail, subject to conditions such as furnishing a bail bond, not indulging in similar acts of crime, and making themselves available for investigation when required.
(Edited by Madhurita Goswami)