The Bombay High Court dismissed a writ petition challenging the order of the Learned Sessions Judge, vide which the Learned Judge had rejected the application filed by the petitioner raising objection as to the admissibility of a Compact Disk (CD). The Court observed that looking at the material or the documents, for the purpose of ascertaining directions under section 156(3) of the Cr.P.C., is necessary and cannot be said to be taking cognizance.
Brief Facts:
One person from Respondent No.2’s community met with an accident and was admitted to ICU. Respondent No.2 went to see that patient. The said patient died in the hospital. On knowing this, a mob gathered in the hospital. The management of the hospital looking at the mob, called the police force. The present petitioners, therefore, went to the hospital. Petitioner No.1 on reaching the hospital started abusing the persons from the Gavali community. Since respondent No.2 happens to be a person from the Gavali community, he did not like the same and started recording the incident.
One of the police constables snatched the mobile and told about the video recording to petitioner No.1, who then assaulted the complainant. The complainant and other persons were taken to the police station. On the next day, Petitioner No.1 again abused the complainant in the name of caste. The complainant tried to lodge a complaint with the police but no cognizance was taken. The complainant went to SP for lodging the complaint but was pressurized by the authorities to not file any complaint. On this, the complainant/respondent No.2 filed an application under section 156(3) of the Cr.PC. in the Court of learned JMFC.
The learned JMFC by his order dated 27.07.2021 rejected the prayer. This order came to be challenged by respondent No.2 by filing a Revision in the Court of the Learned Sessions Judge. The petitioners filed an application objecting to the viewing of the video recorded on the CD having the recording of the incident. The main objection was that the said CD is not accompanied by a certificate under section 65-B of the Indian Evidence Act. The learned Sessions Court held that since the documents are filed before the learned Trial Court, there is no bar in looking into the said documents. This order is under challenge in this petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that in view of section 65-B of the Indian Evidence Act, unless a CD is accompanied by a certificate, it cannot be viewed. He further submits that viewing the document itself amounts to taking cognizance. If the evidence is admissible then only it can be seen at any stage. The Revisional Court’s power is limited to correct the legal mistake committed by the Trial Court and for that purpose, it is not necessary to view the CD.
Contentions of the Respondent:
The Learned Counsel for the Respondent argued that the CD is a part of the record and proceedings and therefore same can certainly be viewed by the Court. Viewing the CD itself does not amount to looking at the evidence or admitting the CD into evidence. At this stage, there is no occasion to come to any conclusion about the locus of the complainant. Viewing of the CD will not cause any prejudice to any of the parties.
Observations of the Court:
The Court noted that as the CD is forming part of the record, the learned Sessions Judge has every power to view the recording on the CD. The accused does not have a locus standi to file an application raising an objection to the viewing of a particular material by the Court.
Further, the Court observed that issuing an order/direction under section 156(3) of the Cr.P.C. is a pre-cognizance stage and it cannot be said to be taking of cognizance. Looking at the documents and the material is only for the purpose of coming to a conclusion as to whether the case is made out from the allegations and the material on record to direct the police to investigate the offence. Thus, looking at the material or the documents, for the purpose of ascertaining directions under section 156(3) of the Cr.P.C., is necessary and cannot be said to be taking cognizance.
The decision of the Court:
The Bombay High Court, dismissing the petition, held that the order passed by the learned Sessions Judge does not require any interference.
Case Title: Sudhir & Ors. vs The State of Maharashtra & Anr.
Coram: Hon’ble Justice Kishore C. Sant
Case no.: CRIMINAL WRIT PETITION NO. 76 OF 2023
Advocate for the Petitioner: Mr. Aditya N. Sikchi
Advocate for the Respondents: Mr. Y.G. Gujarati, and Mr. S.B. Deshpande
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