Bombay High Court Directs DCP To Obtain Call Records, WhatsApp Calls/Messages To Probe Alleged Demand Of Bribe By Police Using Accused's Phone

The Bombay High Court recently directed the Deputy Commissioner of Police, Zone 2, Mumbai, to procure the Call Detail Records (CDR) and WhatsApp messages/calls from the mobile phone of an accused in a cheating case who alleged that the investigating officer demanded bribe from his family using his phone.

A division bench of Justice Revati Mohite Dere and Justice Manjusha Deshpande granted interim bail for six weeks to a resident of Ahmedabad noting that prima facie, there are serious allegations against police officers which need to be investigated.

“Prima facie, it appears that the police have not complied with the provisions of law and as such there is substance in the allegations made by the petitioner in the aforesaid petiton. Custodial torture is also alleged. The allegations as against the police officers are serious and the same need to be responded to by them”, the court observed.

The court also sought the prosecution's response to a writ petition filed by the accused challenging his arrest by the Maharashtra Police and the subsequent remand to judicial custody by the next date, May 3, 2024.

Saraswat in his petition claimed that his arrest was illegal as the police did not comply with Section 41A of the CrPC, which mandates serving a notice before making an arrest in cases where the offence is punishable with less than seven years of imprisonment. The petitioner was not named in the FIR registered on March 11, 2024, for an offence under Section 420 read with Section 34 of the IPC.

According to the petitioner, on March 19, 2024, two to three persons, who were later identified to be plainclothes police officers, picked him up from his shop in Ahmedabad and brought him to Mumbai without seeking any transit remand as required under Section 57 CrPC. The petitioner claimed that they did not have any identification on them to disclose that they were police officers.

Advocate Mudit Jain for the petitioner submitted that Section 41A notice was subsequently prepared by the police after the petitioner was brought to Mumbai and his signature/ thumb impression on the notice was taken forcibly. He relied on CCTV footage of the shop to show that Section 41A notice was not served on the petitioner, as the police officers were not carrying any papers with them when they picked up the petitioner.

Further, no arrest memo was provided to the petitioner, and the grounds of arrest also were not informed to him or his family members, either orally or in writing, when he was arrested, Jain submitted.

Jain also submitted that the petitioner's phone was used by the Investigating Officer for almost 10 days and the officer would talk on the petitioner's phone to the petitioner's father and brother. He relied on the screenshots of the calls received and audio recordings of the conversation between the officer and the petitioner's father and others. Jain submitted that the IO demanded money from the petitioner's father to settle the matter.

Public Prosecutor Hiten Venegavkar submitted that Section 41A notice was served on the petitioner on March 19, 2024, on the day when the police went to Ahmedabad.

However, the court doubted the police's claim of serving the Section 41A notice. The court noted that the petitioner was picked up without any notice and that there were serious allegations against the police.

Considering the prima facie violation of legal provisions, the court granted interim bail to Saraswat on a cash bail of Rs. 25, 000 for six weeks, during which he is to furnish a personal recognizance bond with sureties.

The court also ordered the Deputy Commissioner of Police, Zone 2, Mumbai, to procure the Call Detail Records (CDR) and WhatsApp messages/calls from Saraswat's and the original accused's mobile phone to investigate the allegations further.

Advocate Mudit Jain, Aman Kacheria, Rahul Agarwal, Jasmin Purani and Sajid Sayed represented the petitioner.

Public Prosecutor HS Venegavkar and APP PP Shinde represented the State.

Case no. – Criminal Writ Petition (Stamp) No. 7551 of 2024

Case Title – Bhairaram Saraswat v. State of Maharashtra and Ors.

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