Harpreet Singh S/O Gurmeet Singh ... vs State Of Mah. Thr. Pso Crime Branch ...
2022 Latest Caselaw 12047 Bom

                                    1                                29 CRIWP572.22 (J).odt


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              : NAGPUR BENCH : NAGPUR.


            CRIMINAL WRIT PETITION NO. 572 OF 2022


PETITIONERS                : 1] Harpreet Singh S/o Gurmeet Singh Alag,
                                Aged 43 years, Occu. Business,
                                R/o Plot No.90, Raj Regency,
                                Gurucharansingh Alag Marg,
                                Gurunankpura, Nagpur.

                              2] Manpreet Singh S/o Gurmeet Singh Alag,
                                 Aged 40 years, Occu. Business,
                                 R/o Flat No. F-2, First Floor,
                                 Gurukrupa Apartments, Kashmiri Galli,
                                 Nagpur.

                                           VERSUS

RESPONDENT                  : State of Maharashtra,
                              Through Police Station Officer,
                              Crime Branch (Eco), Nagpur City,
                              Nagpur.

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          Mr. R. J. Shukla, Advocate for the petitioners.
          Mr. H. D. Dubey, A.P.P. for the respondent/State
----------------------------------------------------------------------------------------------

                        CORAM : G. A. SANAP, J.

DATE : NOVEMBER 23, 2022.

ORAL JUDGMENT

1. Heard Mr. R. J. Shukla, learned advocate for the petitioner and

Mr. H. D. Dubey, learned Additional Public Prosecutor for the State.

2 29 CRIWP572.22 (J).odt

2. RULE. Rule made returnable forthwith. Taken up for final

disposal by consent of the parties.

3. The petitioners are the accused in Special MPID Case No. 277

of 2020 pending on the file of learned District Judge and Additional

Sessions Judge, Nagpur. The petitioners are aggrieved by the order passed

by the learned Additional Sessions Judge dated 03.08.2022, whereby the

learned Judge by granting application (Exh.21) allowed production of the

documents by the witness at the stage of his evidence.

4. The main ground of challenge to the impugned order is that

such procedure is unknown to the criminal law and as usual the order is not

according to law. The documents were not provided to the

petitioners/accused either before or at the time of framing of Charge against

them. It is submitted that the impugned order is not according to law and

therefore, required to be set aside.

5. The petition has been opposed by the prosecution by filing

reply. It is contended that the evidence in the trial has began. The

documents produced on record are the screenshots of WhatsApp chats from 3 29 CRIWP572.22 (J).odt

the mobile of the informant. It is contended that during the course of

investigation, the seized mobile phones of the accused persons have been

forwarded to the Forensic Science Laboratory with a specific request to

retrieve the WhatsApp chats and submit report. The screenshots of

WhatsApp chats are nothing but the communication between the informant

and accused persons. It is further contended that the report has not yet been

received. On receipt of the report, the same would be placed on record and

that would take care of the entire controversy.

6. Learned advocate for the petitioners submitted that similar

issue has been dealt with by this Court (Coram : Manish Pitale, J.) in the

case of Bhagyashree Prashant Wasankar .vs. State of Maharashtra in Criminal

Writ Petition No. 688/2020, decided on 15.07.2021. Relying on this

judgment, the learned advocate pointed out that similar issue was involved

in the said writ petition and this Court has held that the proper procedure

for production of documents by the witness in the Court is not by simple

production of the documents, but by taking recourse of Section 173(8) of

the Code of Criminal Procedure.

7. It is seen on a perusal of the record that the mobile phones 4 29 CRIWP572.22 (J).odt

have been forwarded to the C.A. by the Investigating Officer for analysis and

examination. However, no steps were taken by the prosecution to expedite

the analysis by the C.A. Without making any attempt in that direction,

evidence in the matter has commenced. It is needless to state that when a

forceful attempt has been made to introduce the documents on record, it is a

clear indication that those documents are relevant to prove a particular fact.

In my view, in the backdrop of this position, before allowing the witness to

step into the witness box, the prosecution was supposed to obtain order from

the learned Sessions Judge seeking direction to the C.A. to expedite analysis

of the mobile phones. Instead of taking recourse to the legal remedy, this

short-cut route has been chosen by the prosecution, which if examined in

the teeth of the law, can not stand the scrutiny. The law laid down in the

case of Bhagyashree Wasankar (supra), would be squarely applicable to the

facts of this case. In view of this, the petition deserves to be allowed.

8. Before parting with the judgment, it is necessary to state that

even today also the Investigating Officer can collect the evidence as provided

under Section 173(8) of the Cr.P.C. and produce the same before the Court

by following the procedure. The procedure contemplated by taking recourse

of Section 173(8) is filing of supplementary charge-sheet. It is necessary to 5 29 CRIWP572.22 (J).odt

mention at this stage that even after the order allowing this writ petition is

passed, this exercise can be undertaken by the Investigating Officer and he

can collect the evidence by conducting further investigation as contemplated

under Section 173(8) of the Cr.P.C. If the Investigating Officer undertakes

this exercise, it is made clear that this order shall not stand in his way.

9. The criminal Writ Petition is allowed.

The order dated 03.08.2022 passed below Exh.21 by the

learned District Judge and Additional Session Judge, Nagpur in Special

MPID Case No. 277/2020, is set aside.

Rule is made absolute accordingly. The petition stands

disposed of.

( G. A. SANAP, J. )

Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:23.11.2022 18:14