Ajay S/O. Dinkar More And Others vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9303 Bom

                                    (1)                   901-Cri.WP 1292 of 2017



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1292 OF 2017
                                 WITH
                 CRIMINAL APPLICATION NO.6332 OF 2017

.     Sunil s/o Sitaram Dond
      Age: 40 years, Occu.: Agril. & 
      Business, R/o.Matapur, 
      Tq.Shrirampur, Dist.Ahmednagar.              ..Petitioner
               VERSUS
1)    The State of Maharashtra
      Shrirampur City Police Station,
      Tq.Shrirampur, Dist.Ahmednagar,

2)    Ajay s/o.Dinkar More
      Age: 22 years, Occu.: Nil,
      R/o.Prakash Nagar, Near Thatte
      Ground, Ward No.7, Shrirampur,
      Dist.Ahmednagar.

3)    Parag s/o. Machhindra Pathare
      Age: 20 years, Occu.: Nil,
      R/o.Near Borawake College,
      Ward No.1, Shrirampur,
      Dist.Ahmednagar.

4)    Dhiraj s/o.Shankar Shinde
      Age: 23 years, Occu.: Nil,
      R/o.Sanjay Nagar, Near New Water
      Tank, Shrirampur, Ahmednagar.                ..Respondents

                           ...
Advocate for the Petitioner : Mr.R.R.Karpe
Advocate for the Respondent No.1 : Mr.A.A.Jagatkar
Advocate for the Respondent Nos.2 to 4 : Mr.G.R.Sayyed



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                                      (2)                      901-Cri.WP 1292 of 2017



                                    ...

                                    CORAM :  PRAKASH D.NAIK, J.

DATE : 5.12.2017

ORAL JUDGMENT:-

1) The petitioner has challenged the order dated

6.9.2017 passed by the Sessions Court Shrirampur below

Exh.142 in Sessions Case No.40 of 2015.

2) The petitioner is the first informant in Crime No.I-

72 of 2015 registered with Shrirampur Police Station.

The offences were registered under Sections 363, 385,

387, 302, 201, 120B, 364 and 366 read with Section 34 of

the Indian Penal Code. Charge-sheet was filed and the

case is pending before the Court of Additional Sessions

Judge, Shrirampur, which is numbered as Sessions Case

No.40 of 2015. The case relates to the murder of the

deceased Ganesh Chandgude. The petitioner is the

maternal uncle of the deceased.

3)    The   charge-sheet   has   been   filed   and   the   trial   had




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already   proceeded.     About   25   witnesses   are   already

examined by the prosecution in support of its case. The

respondent Nos.2 to 4 are impleaded as accused in the

case arising out of the said complaint registered as

Session Case No.40 of 2015.

4) The petitioner's contention is that the case is

heavily oriented around the electronic evidence,

particularly, the conversation recorded and gathered from

the Cell Phones, which were allegedly used while

commission of the crime along with CCTV footage. It is

contended that the charge-sheet indicates that relevance

of conversation in the mobile Cell Phones along with CCTV

footage, which has been culminated into the Compact Disc

(CD), which includes the conversations of the accused

since kidnapping of the deceased till commission of

murder on the count of non-compliance of demand of

extortion amount.

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5)    It   is   submitted   that,   the   prosecution   preferred   an

application vide Exh.138 wherein permission was sought

from the Court of Additional Sessions Judge for placing

the CDS on record, which were received from Forensic

Science Laboratory, Mumbai, after due inspection. It was

requested that, these two CD's be permitted to be placed

on record in the Sessions Case. Vide order dated

19.8.2017 the Sessions Court granted the permission and

thereafter these CDS are taken on record and these CDs

are part of the Sessions Court proceeding.

6) The petitioner further contends that taking into

consideration vital importance of the CDs received from

Forensic Science Laboratory, Mumbai, after its

verification and scrutiny, the prosecution filed

application vide Exh.142 on 1.9.2017. In the said

application, it was stated that the recovered mobile cell

phone and CCTV footage were sent to Forensic Science

Laboratory, Mumbai, and after due verification and

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scrutiny of the electronic device, the said Forensic

Science Laboratory, Mumbai, has prepared two CDs. It was

further stated that the Court had permitted the CDs to be

placed on record so as to read in evidence. In the

application it was further stated that the evidence with

regards to the CDs is relevant to the prosecution's case.

It was also stated that it is necessary to issue

certificate under Section 65-B of the Evidence Act. It

was also stated that it is necessary to ascertain whether

the certificate is enclosed in the sealed packet and in

the event the certificate is not available, requisite

evidence will have to be adduced. It was therefore,

prayed that the envelopes of CDs may be permitted to be

opened in the presence of the Advocates to ascertain the

existence of the certificate and in the event such

certificate is not found in the envelopes, the

prosecution may be permitted to issue summons to the

witnesses.

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7)    The   learned   Additional   Session   Judge   on   1.9.2017

ordered that the envelopes be opened in the presence of

the Advocates. The Court observed that it would be just

and proper to open two envelopes, which contains CDs at

this stage and the application was allowed to that

extent. The said order was passed on the application

preferred by the prosecution vide Exh.142. Thereafter,

the envelopes were opened in the presence of both the

Advocates. The envelopes were marked as Exh.146 and

Exh.147. The Court thereafter, recorded in the Order

dated 1.9.2017 that in the envelop Exh.146, there is one

CD and in the envelop Exh.147 there are four photographs.

The CD and photographs were kept in respective envelopes

and they were sealed in the presence of the Advocates for

both the parties. The order further states that learned

APP sought time to make submission on the point of

certificate under Section 65-B of the Evidence Act,

hence, time was granted to the prosecution.

                                     (7)                     901-Cri.WP 1292 of 2017



8)    In   pursuant   to   that   the   Trial   Court   heard   the

parties on the application preferred by the prosecution

vide Exh.142. The Trial Court vide order dated 6.9.2017

rejected the said application.

9) While passing the order dated 6.9.2017, it was

observed that the application has been filed at the stage

when the case is fixed for final argument after evidence

of 25 prosecution's witnesses has been recorded. While

deciding merit of the application, the opposite party has

raised objection for issuance of summons on the ground

that the prosecution is prolonging the case. The Trial

court however, observed that merely filing application at

the belated stage, cannot be a reason to reject the

application. Further, the Trial Court has observed that

the prosecution has contended that there are two CDs, but

after opening envelopes, only one CD is found in one of

the envelopes and in other envelop there were positive

photographs. While considering the merit of the CD,

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report was produced regarding its production with a

prayer that CD may be allowed to be produced on record,

which was received by the City Police Station, Shirpur,

containing mobile and CCTV footage sent for Forensic

Science Laboratory, Mumbai, for observations. The Court

thereafter observed that on perusal of report dated

15.3.2016, it appears that permission to produce DNA

report, mobile examination, and VDR examination report on

record which is in the paper form. Thus, it appears that

by way of such report Exh.138, it is produced in the form

of CD. The Court also recorded the fact that the

accused/respondents had filed a written say and submitted

that the Forensic Science Laboratory, Mumbai, has filed

its report in writing and same is exhibited document.

The finding of Forensic Science Laboratory, Mumbai, is

narrated on paper regarding mobile details. The accused

also contended that the CCTV footage claimed by the

prosecution is not an evidence. The purport of legal

provision in this regard cannot be claimed at later stage

(9) 901-Cri.WP 1292 of 2017

nor it is ground for examining witness. The application

is vague on the point of issuing the summons. The Trial

Court thereafter, concluded that without discussing

merits of CD or the report as the matter is at the fag

end of final argument, there is no just and legal grounds

for examination of witness. It was further observed

that, the decisions cited by the prosecution were not

applicable in the case. Considering the contents of the

application, the prayer for issuance of witness summons

was rejected.

10) The petitioner, who is the first informant has

therefore approached this Court challenging the order

dated 6.9.2017. Although the application vide Exh.142

was preferred by the prosecution, the said order is not

challenged at the instance of the prosecution. The

learned counsel for the petitioner submits that the

accused committed serious crime of brutal murder of a

child aged about 17 years. It is submitted that the

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victim was kidnapped and thereafter there was a demand of

ransom and for not fulfilling the same, the victim was

murdered. It is submitted that although the prosecution

did not choose to challenge the order dated 6.9.2017

before this Court, in the interest of justice, the order

of the Trial Court is required to be set aside. The

petitioner is the first informant and was closely related

to the victim and therefore, he has locus to prefer the

present application. It is further submitted that

prosecution's case is based on electronic evidence i.e.

data collected from the mobile phone wherein messages

have been exchanged by the accused from the mobile phone

of the deceased by using another SIM card for demanding

the extortion amount. The case is also based on the

evidence of CCTV footage collected from the concerned

hotel. It is submitted that the data collected from Cell

Phones and CCTV footage is culminated into CDs by

Forensic Science Laboratory, Mumbai. It is submitted

that in the interest of justice, the prosecution may be

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permitted to examine the witness to prove the electronic

evidence.

11) The learned counsel for the petitioner placed

reliance on the Judgment of this Court in the case of

Somnath Gangadhar Karale and ors. Vs. State of

Maharashtra, reported in 2016(5) Bom.C.R., 185.

12) The learned counsel for the respondents strenuously

opposed prayer sought in this petition. It is contended

that the petitioner has no locus to challenge the

impugned order. The prosecution has not filed any

application challenging the order passed by the Trial

Court. The prosecution has examined 25 witnesses and at

the fag end of the trial when case was posted for

argument, the application was preferred by the

prosecution. It is submitted that the electronic

evidence, which is sought to be relied upon by the

prosecution has no sanctity of law as it is not in

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consonance with the provisions of Section 65-B of the

Evidence Act. It is submitted that the accused are in

custody for a long period of time and the prosecution may

not be allowed to be protracted on the basis of such

frivolous application. It is submitted that the

application preferred by the petitioner was vague and

therefore the Trial Court has rightly rejected the

application. The reasons assigned by the Trial Court are

sound and does not require any interference of this

Court.

13) The learned counsel for the respondent has relied on

the following decision:-

a) K.Ramajayam alias Appu V. Inspector of Police,

Chennai, reported in 2016 Cri.L.J., 1542.

b) Anvar P.V. Vs. P.K.Basheer and ors., reported in AIR

2015, Supreme Court, 180.

14) Learned APP supported the petition. It is submitted

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that the prosecution had preferred an application vide

Exh.142 before the Trial Court. In the interest of

justice and more particularly, taking into consideration

nature of crime committed by the accused and considering

the fact that the prosecution's case revolves around the

electronic evidence, the prayers made by the prosecution

before the Trial Court ought to have been allowed. It is

therefore, submitted that the reliefs sought by the

petitioner may be granted.

15) On perusal of the documents on record, it is

apparent that the case involves the murder of a young boy

for ransom and the prosecution is relying upon the

electronic evidence. The CD's were produced before the

Court. The said articles were however in the sealed

envelop, which were opened on 1.9.2017. The application

was apparently preferred after the receipt of the said

articles and on the report of the Forensic Science

Laboratory, Mumbai. The envelopes were opened in the

( 14 ) 901-Cri.WP 1292 of 2017

presence of Advocates for both the sides. The application

vide Exh.142 was however preferred on 1.9.2017 before

opening of the envelopes, which were containing the CDs

and photographs. Only after the envelopes were opened, it

could be ascertained that it does not contain the

certificate as envisaged under Section 65-B of the

Evidence Act. The application dated 1.9.2017 preferred

vide Exh.142 was preemptive and apparently it appears to

be vague as the prosecution was not sure whether the

envelopes contain the certificate or not. The

prosecution has not made it clear as to which witness

summons are required to be issued. The Trial Court

while rejecting the application has observed that the

application is vague on the point of issuance of summons.

It is pertinent to note that the Trial Court has

proceeded with the observation that merely on the ground

that the application was preferred belatedly, the same

cannot be rejected. However, in the concluding

paragraph, it appears that the Trial Court is influenced

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by the fact that the application is preferred at the fag

end of trial and there appears no reason to allow summons

to witnesses. In the circumstances, the application was

rejected.

16) It is true that the accused are in custody for a

long period of time and the prosecution had examined

about 25 witnesses and the application was made in

pursuant to order dated 19.8.2017 and thereafter on

1.9.2017, the envelopes were opened and the contents of

the said envelopes were revealed to both the parties.

Considering the fact that the case of the prosecution is

primarily based on electronic evidence, the prosecution

must be given an opportunity to prove its case.

17) The learned counsel for respondents had relied upon

several decisions with regards to the evidentiary value

of the CDs and it was also argued before the Trial Court

that such evidence is not admissible in law.

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18) I do not wish to make any observation about the

admissibility of said evidence. However, it appears that

the application preferred by the prosecution vide Exh.142

was vague obviously in the circumstances in which the

application was preferred and the Trial Court has

observed that there is no ground for examination of

witnesses. The application Exh.142 does not specify as

to which witnesses the prosecution intends to examine in

support of evidence of CD in the event the CD is not

accompanied by a certificate. In the circumstances, the

impugned order is required to be set aside.

19) The learned counsel for the respondent No.2 to 4

submits that he do not wish to press Criminal Application

No.6332 of 2017, however, liberty may be granted to the

respondent to prefer application for bail before the

appropriate Court.

( 17 ) 901-Cri.WP 1292 of 2017

20) In the circumstances, without expressing any opinion

on the merits or evidentiary value of the CD, it would be

appropriate to pass the following order:-

ORDER

(I) Criminal Writ Petition No.1292 of 2017 is partly allowed.

(II) The impugned order dated 6.9.2017 passed by the Additional Sessions Judge, Shrirampur, District Ahmednagar, below Exh.142 in Session Case No.40 of 2015 is set aside.

(III) The prosecution is permitted to prefer a fresh application before the Trial Court giving requisite details about the witnesses prosecution wishes to examine and for what reason. Such an application be preferred within a period of two weeks from today.

(IV) The Trial Court shall decide the application, if preferred by the prosecution for issuance of summons to the witnesses etc., in accordance with law and without being influenced by this order or its earlier order dated 29.9.2017.

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(V) Considering the fact that accused are in custody, the application preferred by the prosecution, if any, may be decided within two weeks from the date of filing of the application.

(VI) Petition stands disposed of .

(VII) Criminal Application No.6332 of 2017 is allowed to be withdrawn with liberty to the respondents to prefer an application for bail before the appropriate Court.

[PRAKASH D.NAIK, J.]

SPT/901-Cri.WP 1292 of 2017