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Can the sms contents be retrieved through service provider?

Page no : 2

gaury..fight to win (Education)     22 September 2011

Thanks.


(Guest)

informative thread

thanks to all.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     22 September 2011

In criminal cases, state bears the cost.

 

In civil cases, whosoever wants to prove, bears the cost

Manav Kalia (Arguing my own cases..)     22 September 2011

Hmmm... So that means that I should push for forensics in dv case and use the results in divorce case free of cost.... Really good advice.. Thanks ... Btw great to talk to you on the phone .. You are like a guardian angel for me ... Thanks a lot buddy... :-)

Adv. Chandrasekhar (Advocate)     22 September 2011

Sorry, if I say any thing wrong as I am novice and not quite capable to comprehend the latest technology and its sweep in our day to day life.  In this post, I am thinking loudly, which may be erroneous, and I am ready to stand corrected.

In the above responses, I see there is confusion among respondents about primary evidence and secondary evidence and just exhibiting the primary eviedence is not enough,  but the necessity of proving the contents of even the primary evidence is requisite to succeed in the case.

Suppose A through his mobile XXX sent an offensive SMS message to his wife B on her mobile YYY.  Let us also suppose If B succeeds to prove the existence of this message before the court in accordance with law, this message amounts to mental cruelty under Section 498-A or abuse in D.V. Case or cruelty in divorce case, which may entitle her to get divorce.

Now, for proving this message what steps B has to take:

1.  As someone suggested, she can transfer this message on C.D. through compute and file it in the court along with other documents and also transcribe the same in her petition / or as a separate document.

2.  Keep SMS message in tact in her mobile.

By taking above two steps, she has brought only primary evidence on record and which can be allowed to be marked as exhibit.  Only these two steps cannot prove the contents of the document.  To prove the contents of the document, further steps have to be taken.

3.  At the time of evidence, summon the MSP to prove on such and such date and time, the message has been sent to her mobile from the mobile numberof XXX.  It has already been said MSP does not have the contents of SMS and has the record of time and mobile number of sender and receiver.

4.  If A deleted the message from his mobile No. XXX, his mobile has to be taken innto custody and sent for forensic test.  If forensic report gives positive result, then it can be said that charge is proved.

BUT I HAVE GOT MY OWN DOUBTS ABOUT THIS METHODOLOGY TO BE ADOPTED BY "B" TO PROVE THIS FACT.

Now, A refuses very specifically in his pleadings that such message has been sent by "HIM" through his mobile.  He also refuses that he owns mobile No.xxx.

The whole burden lies on B to prove the following facts:

1.  A has got a mobile phone and its No. is XXX.  (Is it not difficult and most time consuming to prove that XXX number belongs to A before the court?  For that she has to find out that who is  the vendor who sold SIM to A and summon him  along with the SIM purchasing application and identity documents.  If these documents are lying with the MSP, he has to be summoned for this purpose).

2.  That on that particular date and time, the mobile has been in the physical custody of A only and no one surrounding has misused it).

If B succeeds, then also A  can file the papers relating to software technologies available freely or for peanuts in the market which show that without having the physical possession of mobile bearing No.xxx, an offensive message can be sent by anyone (including B herself) purportedly from phone xxxx to B's mobile bearinng No. YYY.  A simply and emphatically denies that he sent the message.  Taking note that such software technology is available, the court cannot give any adverse inference against A and as long as such software exists, even these facts cannot be proved even on the touch stone of "preponderance of probability", forget about "beyond reasonable doubt".

If A admits that he has a mobile number and its number is XXX and on that date and time that particular mobile is in his physical custody and he has, in fact, sent a SMS message,but that is not what B showing but only a sarcastic message.  Then things will be seen in different light.

Now, about forensic reports.

If the matter is referred to Govt. lab, years (in the most henious crimes such as murder, rape etc. they are taking several years to file reports)will be taken to get report from the lab and their expert also can be thoroughly examined by opposite counsel and can elicit the reply that such above said software technologies available in the market. If private forensic labs will be engaged for this purpose, A also will go his preferred lab and get the report in his favour.  Expert reports of petitioner and respondent contradict each other diametrically and court will ignore both the expert opinions.

 

 

    

1 Like

Manav Kalia (Arguing my own cases..)     22 September 2011

Interesting responses guys. Two quick questions: will the calls that are dialled from the phone but do not go thru due to network error or phone busy or phone not reachable get logged in the MSP records? Can a sarcastic SMS be deemed cruel? Thanks....

gaury..fight to win (Education)     22 September 2011

Thanks chandu sir.

I have 164 statement of his girlfriend where she has told that she was unaware of his marriage and told that he blackmailed her to keep relation with him(husband).Along with that statement can those sms will be helpful as eveidence.If husband challenge those sms more other sms will be retrived i know.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     22 September 2011

Adv Chnadu,

 

You have explained the process and pitfalls very well. However, the question is not about time or whatever, the question is whether they can be proved or not? The answer is YES.

 

Mirage,

 

a) Missed calls/ calls that didnot go through are not recorded.

b) Open to interpretation. Sarcasm is an art, cruelity is a matter of fact and degree.

 

Gauri,

 

164 statements are also retracted routinely. But all the best.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

 

1 Like

Manav Kalia (Arguing my own cases..)     23 September 2011

Thanks shonee. Stating someone is a funny cartoon as according to social norms that person is an aberration, for the betterment of the person so that person changes behaviour and people stop making fun of that person is doing a kindness on that person not cruelty. And sarcasm is used to drive the point home to the person better to increase the effect of act of kindness. He he.. What do you think, can it be shown as cruelty??. He he.. What do you think, can it be shown as cruelty??

(Guest)

The issue at hand as it appears from your post is that your wife ( or her legal counsel )  appears to to have either lied or mis-quoted the SMS messages sent by you. 

Since you are the sender of the SMS, you would have the SMS records yourself on your SIM card if your phone is configured to store SMS on the SIM, else the carrier ( Service provider ) will have your text messages.

Data retention policies vary by country and in India I am not sure if there is a mandatory period that the Service Provider should retain the SMS data. 

If you want all your SMS messages retrieved from your SIM card, then send me a PM and I will retrieve it for for presenting to the court. I will do this for a nominal fee - anything you can afford - I just cannot do it for free.

You dont need CDR. Your cell phone bill is in itself CDR for practical purposes and if the other party has quoted dates and times that the SMS was received but the corrosponding entries are missing on your cell phone bill, then that is enough evidence to  quash the other parties claims.

I am not for increasing conflict and I am not here to give you or anyone illegal guidance but technically it is possible for you to frame the other party by generating SMS messages appearing to originate from her cell phone to yours with any content you want. In other words, it is possible for you to have a SMS message on your phone ( appearing to have ) sourced from the other partys cell phone.If you want more information on this, then please PM me. 

 

Manav Kalia (Arguing my own cases..)     23 September 2011

Thanks Adam. My wife has alleged that I have been threatening her by calling her and thru SMS. Whereas she was the one who called and threatened and sent threats thru SMS, in response to which I sent sarcastic SMS making fun of her threats. So I think CDR are needed to establish that for sure. And btw I don't store SMS in SIM. But I have my SMS stored in my phone. So will that help? Thanks.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     23 September 2011

Adam,

 

In pre-paid phones there are no list sent to the subscriber,

 

And SMS contents are not stored by MSP in India.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

1 Like

gaury..fight to win (Education)     23 September 2011

But if gone through police official or court prepaid no's call details can be obtained.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     23 September 2011

Yes Gauri it can be,

 

The answer was to Adam's statement

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Adv. Chandrasekhar (Advocate)     23 September 2011

 

 

Quote from Mr. Adam's response:

"technically it is possible for you to frame the other party by generating SMS messages appearing to originate from her cell phone to yours with any content you want. In other words, it is possible for you to have a SMS message on your phone ( appearing to have ) sourced from the other partys cell phone.If you want more information on this, then please PM me. "

That is why I say that SMS messages are not reliable and if the party, which will adversely affect due to such SMS message, show the availability of above said technology, the court will stop to rely on such SMS messages for delivering the verdicts.

 


 
 


 


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