Nikhil Vinayak Narule vs The State Of Maharashtra Thr. Ps, Umred, ...
2025 Latest Caselaw 2938 Bom

Bombay High Court

Nikhil Vinayak Narule vs The State Of Maharashtra Thr. Ps, Umred, ... on 3 March, 2025

2025:BHC-NAG:2179




              Judgment

                                                             367 revn102.24

                                          1

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

                   CRIMINAL REVISION APPLICATION NO.102 OF 2024

              1. Nikhil Vinayak Narule,
              aged 25 years, occupation - student,
              r/o Ranbodi Punvarsan, Kuhi,
              Nagpur.

              2. Saurabh Uttam Rithe,
              aged 22 years, occupation - labour,
              r/o Ranbodi Punvarsan, Kuhi,
              Nagpur (Both are in jail).        ..... Applicants.
                                   :: V E R S U S ::
              State of Maharashtra,
              through Police Station Umred,
              Nagpur.                    ..... Non-applicant.

              Shri Atul Rawlani, Counsel for Applicants.
              Shri M.J.Khan, Additional Public Prosecutor for the Non-
              applicant/State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 14/02/2025
              PRONOUNCED ON : 03/03/2025

              JUDGMENT

1. Heard learned counsel Shri Atul Rawlani for

applicants and learned Additional Public Prosecutor Shri

M.J.Khan for the State.

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367 revn102.24

2. By this revision, the challenge has been raised to

order dated 27.6.2024 passed below Exh.113 by learned

Extra Joint District Judge and Additional Sessions Judge

(Special Judge, POCSO Court), Nagpur in Special

Criminal (Child) Case No.482/2022 whereby the

application moved by the applicants (the accused) for

supplying a clone copy of the data available in Pen-Drive

submitted by the Investigating Officer having statement of

the victim.

3. Learned counsel for the accused submitted the

clone copy (transcript of the statement recorded by the

Investigating Officer in the nature of Audio/Video

Recording) of statement be provided to the accused to

allow them by giving a fair opportunity to confront the

said statement to the witness in view of Section 145 of

the Indian Evidence Act. It is contended that though the

prosecution supplied him copy of the statement in a Pen-

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367 revn102.24

Drive, the Audio/Video Recording itself shows that the

police officer who recorded the said statement has also

reduced it into the writing and the accused has right to

have a copy of the same in the interests of a fair trial. The

fair trial is the fundamental right of the accused. It is

further submitted that the reasoning given by the trial

court is not reasonable and is affecting the right of a fair

trial of the present accused. A full transcript of the Audio

has to be provided to the accused and if it is not provided,

it would seriously affect impartiality and fairness of the

trial proceedings.

4. Learned Additional Public Prosecutor for the State

strongly opposed the said application on the ground that

the accused Nos.1, 4, and 5 moved an application before

learned Judge below vide Exh.113 to supply the transcript

copy/typed copy of videography statement filed by the

prosecution in Pen-Drive. The copy of the statement

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367 revn102.24

which is recorded in the nature Audio/Video is already

copied in the Pen-Driver and supplied to the accused and,

therefore, the accused are having a document in the

nature of Pen-Drive to contradict the witness and,

therefore, the application is rightly rejected and no

interference is called for.

5. The question raised is, whether the accused

persons are entitled to have a transcript of Audio/Video

Recorded Statement of the victim and Audio/Video

Recorded Statement is a statement made by a person

wherein both their voice (audio) and visual appearance

(video) are captured simultaneously essentially treating

that including both the spoken words and the body

language of the speaker often used in legal proceeding to

document, witness testimonies or confession with greater

accuracy and transparency.

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367 revn102.24

6. Having regard to the submissions made by both the

parties and having perused the record, it would be

relevant to refer Sections 173(5) and (6) and Section 207

of the Indian Penal Code, which are reproduced as under:

"173(5). When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report -

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

173(6). If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to

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367 revn102.24

the accused and stating his reasons for making such request.

207. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following;

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under Sub- Section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-Section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-Section (5) of section 173;

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367 revn102.24

Provided that the Magistrate may, after perusing any such pan of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused;

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

=

7. Thus, by way of producing the Pen-Drive, the

statement is produced by the prosecution in the electronic

form. Whether the document Pen-drive is document, is

already dealt with by the Hon'ble Apex Court.

8. In P.Gopalkrishnan alias Dileep vs. State of Kerala

and anr, reported in (2020)9 SCC 161, the Hon'ble Apex

Court observed that, "in conclusion, we hold that the

contents of the memory card/pen drive being electronic

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367 revn102.24

record must be regarded as a document. If the

prosecution is relying on the same, ordinarily, the accused

must be given a cloned copy thereof to enable him/her to

present an effective defence during the trial. However, in

cases involving issues such as of privacy of the

complainant/witness or his/her identity, the Court may be

justified in providing only inspection thereof to the

accused and his/her lawyer or expert for presenting

effective defence during the trial. The court may issue

suitable directions to balance the interests of both sides.:

9. Thus, by way of the principle above, it has been

recognized that material evidence available in pen-drive

in the nature of electronic form is a document.

10. In Shamsher Singh Verma vs. State of Haryana,

reported in (2016)15 SCC 485 it was recognized compact

disc is also a document. Then, being material referable to

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367 revn102.24

Section 173(5) Cr.P.C. and not Section 173(6) Cr.P.C., it

may be supplied to the accused person as a clone copy of

the original. Also, under Section 207 Cr.P.C., the right of

the accused to be supplied "any other document or

relevant extract thereof forwarded to the Magistrate with

the police report under Sub-Section (5) of Section 173

Cr.P.C." may ordinarily be curtailed only if it is

voluminous.

11. The Hon'ble Apex Court in V.K.Sasikala vs. State,

represented by Superintendent, reported in (2012)9 SCC

771 it is held that without dilating on the said aspect of

the matter what has to be taken note of now are the

provisions of the Code that deal with a situation/stage

after completion of the investigation of a case. In this

regard the provisions of Section 173 (5) may be

specifically noted. The said provision makes it

incumbent on the Investigating agency to

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367 revn102.24

forward/transmit to the concerned court all documents/

statements etc. on which the prosecution proposes to

rely in the course of the trial. Section 173(5), however,

is subject to the provisions of Section 173(6) which

confers a power on the investigating officer to request the

concerned court to exclude any part of the statement or

documents forwarded under Section 173(5) from the

copies to be granted to the accused.

12. The court having jurisdiction to deal with the

matter, on receipt of the report and the accompanying

documents under Section 173, is next required to decide

as to whether cognizance of the offence alleged is to be

taken in which event summons for the appearance of

the accused before the court is to be issued. On such

appearance, under Sectoin 207 Cr.P.C., the concerned

court is required to furnish to the accused copies of the

following documents: i) The police report; ii) The first

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367 revn102.24

information report recorded under section 154; iii) The

statements recorded under sub-section (3) of section 161

of all persons whom the prosecution proposes to

examine as its witnesses, excluding therefrom any part

in regard to which a request for such exclusion has

been made by the police officer under sub-section (6) of

section 173; iv) The confessions and statements, if any,

recorded under section 164; v) Any other document or

relevant extract thereof forwarded to the Magistrate with

the police report under sub-section (5) of Section 173.

13. The first proviso to Section 207 empowers the

court to exclude from the copies to be furnished to the

accused such portions as may be covered by Section

173(6), the second proviso to Section 207 empowers

the court to provide to the accused an inspection of the

documents instead of copies thereof, if, in the opinion of

the court it is not practicable to furnish to the

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367 revn102.24

accused the copies of the documents because of the

voluminous content thereof.

14. Thus, only by way of exception to the general rule,

it may be recognized that the Court may be justified to

allow for a simple inspection of the documents being

relied upon by the prosecution. Statutorily, those

exception may arise under Section 207(iii) read with

Section 173(6) Cr.P.C. and Section 207(v) read with

Section 173(5) Cr.P.C. At the same time, by virtue of the

first proviso to Section 207, the Magistrate retains

discretion to allow any part or portion of the statement to

be furnished to the accused, in such event. Also, by virtue

of the second proviso to Section 207, the Magistrate may

only allow inspection of any document (covered by

Section 176(5) of the Cr.P.C.), if it is voluminous.

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367 revn102.24

15. In view of the decision of the Hon'ble Apex Court

in the case of P.Gopalkrishnan alias Dileep supra, issues

such as of privacy of the complainant/witness or his/her

identity, the Court may be justified in providing only

inspection thereof to the accused and his/her lawyer or

expert for presenting effective defence during the trial.

The court may issue suitable directions to balance the

interests of both sides. The Magistrate may only allow

for an inspection of a document in place of its whole copy

being supplied. Thus, denial of complete copy of a

document is an exception to the general rule namely, the

accused has a right to be made available the material. To

carve an exception to the rule, their must exist just and

proper grounds. When the police officer has formed an

opinion that disclosure of any statement is either not

relevant or its disclosure in the interests of justice or is

expedient in the public interest, by virtue of Section 207

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367 revn102.24

of the Code, the opinion and the reasons (giving rise to it)

would remain subservient to the better wisdom of the

learned Magistrate. If the document not covered under

Section 173(5) Cr.P.C. is voluminous, for that reason the

learned Magistrate may allow for its extract to be made

over to the accused.

16. In the light of the above provisions and the

exception carved out by the Hon'ble Apex Court in the

case of in the case of P.Gopalkrishnan alias Dileep supra,

is referable to the proviso to Section 207of the Code being

not in the interests of justice or expedient in public

interest. However, that decision to be made by the

Magistrate being discretionary, would have to be

exercised on a judicious application of mind to the

particular/peculiar facts giving rise to serious concerns

about violation of privacy etc.. When the Court seeks to

deny an accused person material gathered during

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367 revn102.24

investigation and proposes to only allow him an

opportunity to peruse the same from the Court record, the

Court is taking a decision that may, potentially have a

material being on the fairness and completeness of the

trial as also its final outcome. Therefore, before the Court

may do that, it must itself examine the material to be sure

that the interest to protect the privacy of a complainant or

witness etc. outweighs the requirement to make available

to the accused person, the material being relied against

him. In that, it may also speak to the concerned

witness/complainant and ascertain his views. If necessary,

it may entertain formal objections and reply thereto and

pass such order as may balance the rights and interests of

both sides, without risk of impairing the fairness of trial of

proceedings.

17. In the present case, learned Additional Public

Prosecutor for the State has strongly opposed the

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367 revn102.24

application and submitted that positive steps have to be

adopted to create a barrier free environment. The

barriers are not only those which exist within the physical

space of conventional court but those which operate on

the minds and personality of the voluntariness and

submitted that providing a transcript will affect the

privacy of the victim. He further invited my attention

towards the guidelines and submitted that to ensure the

privacy and physical and mental state of a child witness

and to prevent undue distress the application is rightly

rejected by the trial court.

18. In support of his contentions, learned Additional

Public Prosecutor for the State placed reliance on 1.

P.Gopalkrishnan alias Dileep vs. State of Kerala and anr,

reported in (2020)9 SCC 161; 2. Sharadchandra @ Sarat

Chandra vs. State of Rajasthan, reported in 2015(4) CriLR

(Raj) 2135 and 3. Special Leave Petition (Cri)

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367 revn102.24

NO.6548/2022 (State of Karnataka vs. T.Naseer @ Nasir

@ Thandiantavida Naseer @ Umarhazi @ Hazi and ors)

decided by the Hon'ble Apex Court on6.11.2023 where

the Hon'ble Apex Court considered that fair trial in a

criminal case does not mean that it should be fair to one

of the parties. Rather, the object is that no guilty should

go scot-free and no innocent should be punished. The

Hon'ble Apex Court has referred its earlier judgment in

the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao

Gorantyal, reported in (2020)7 SCC 1.

19. In the present case, the Audio/Video Recorded

Statement is already provided to the accused by copying

the same in the Pen-drive and, therefore, the contention

of learned Additional Public Prosecutor for the State as to

the privacy of the victim is not sustainable. As far as the

observations of the Hon'ble Apex Court in the case of

State of Karnataka vs. T.naseer @ Nasir @

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367 revn102.24

Thandiantavida Naseer @ Umarhazi @ Hazi and ors

supra are concerned, it is specifically in the said decision

observed that fair trial in a criminal case does not mean

that it should be fair to one of the parties. Rather, the

object is that no guilty should go scot-free and no

innocent should be punished.

20. Thus, the accused should have been granted full

opportunity to rebut the evidence led by the prosecution.

The object of the Code is to arrive at truth considering the

fact that the transcript of the said statement is required to

cross examine the witness as to the previous statement in

writing in view of Section 145 of the Indian Evidence Act.

Section 145 of the said Act gives right to the the accused

to cross examine the witnesses as to previous statements

made by him in writing or reduce into writing, and

relevant to matters in question, without such writing

being shown to him, or being proved; but, if it is intended

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367 revn102.24

to contradict him by the writing, his attention must,

before the writing can be proved, be called to those parts

of it which are to be used for the purpose of contradicting

him.

21. Perusal of the Audio/Video Recorded Statement

which is produced before the court shows that while

recording the said statement, the investigating officer has

also reduced into writing the said statement which is

visible from the video and, therefore, the transcript of the

said statement which is previous statement made by the

victim in writing and reduced into writing which is

relevant to matters in question. The right of the accused

to show such writing to the witness would be affected if

such writing is not provided to the accused. The

contention raised by the prosecution is only considered by

the court while passing on order. If the court had itself

examined the material, the court ought to have

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367 revn102.24

considered that the aspect of privacy would not arise as

the Audio/Video Recorded Statement is already supplied

to the accused and therefore, while passing order, the

learned Judge of the trial court ought to have considered

that prejudice would be caused to the accused if they

were not provided with the transcript of the conversation

which is not only recorded by the investigating officer but

also it is reduced into writing and supplying the same to

the accused would not cause any prejudice to the

prosecution.

22. In view of the above observations and in the light

of the decision of the Hon'ble Apex Court in the case of

P.Gopalkrishnan alias Dileep vs. State of Kerala and anr, if

the prosecution is relying on the same, the same must be

given a clone copy thereof to enable him/her to present

and effective defence during the trial. As such, the

application of the present accused seeking transcript of

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367 revn102.24

the Audio/Video Recorded Statement deserves to be

allowed. Hence, following order is passed:

ORDER

(1) The Criminal Revision Application is allowed.

(2) The order dated 27.6.2024 passed below Exh.113 by

learned Extra Joint District Judge and Additional Sessions

Judge (Special Judge, POCSO Court), Nagpur in Special

Criminal (Child) Case No.482/2022 is hereby quashed.

(3) The prosecution shall produce on record the transcript

of the Audio/Video Recorded Statement of the victim and

also supply the copy of the same to the applicants.

Revision stands disposed of.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 05/03/2025 11:15:13