Citation : 2026 Latest Caselaw 3382 Bom
Judgement Date : 2 April, 2026
2026:BHC-NAG:5274
1 REVN.209-2025.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO. 209 OF 2025
1. Dhiraj Vikas Hiwarkar,
Aged 22 years, Occ.- Student,
R/o. Ward No. 9, Lambatpura,
Savner, Nagpur.
2. Gokul Ramesh Likhar,
Aged 31 years, Occ.- Labour,
R/o. Bazar Chowk Supare Mohalla,
Khapa, Tah. Savner, Nagpur.
3. Liladhar Dharmendra Chauragade,
Aged 21 years, Occ.- Student,
R/o. Ward No. 2, Khairi Panjabrao,
Tah.- Savner, Nagpur.
4. Snehal Mukesh Surkar,
Aged 22 years, Occ.- Student,
R/o. Killapura Darga Road, Juni Vasti,
Khapa, Tah. Savner, Nagpur. APPLICANTS
Versus
State of Maharashtra,
Thr. P.S. Khapa, Nagpur. NON-APPLICANT
-----------------------------------------------
Mr. A.R. Rawlani, Advocate for the Applicants.
Mr. A.M. Joshi, APP for the Non-applicant/State.
-----------------------------------------------
2 REVN.209-2025.JUDGMENT.odt
CORAM : URMILA JOSHI PHALKE, J.
RESERVED ON : 26th MARCH, 2026.
PRONOUNCED ON : 02nd APRIL, 2026.
ORAL JUDGMENT :-
1. By preferring this Revision, the Applicants have
challenged the order passed below Exh. 166 in Special Case
No.628/2023 by which the Application of the original accused
Nos.1, 2, 4, 5 and 7 to 12 for obtaining the copy of CD/DVD
(Article-E, I, M, U and V) deposited in the Court, is partly
allowed.
2. Brief facts which are necessary for the disposal of
the present Revision are as under:
2(i). The mother of the victim lodged a report on
26.09.2023 at Police Station Khapa, Tahsil Saoner, District
Nagpur, on the basis of which Crime No.413/2023 was
registered against accused Nos.1 to 12 for the offences
punishable under Sections 354-A, 354-D, 376(2)(n), 376(D),
376(DA), 506 of the Indian Penal Code and Sections 4, 6, 11
and 12 of the Protection of Children from Sexual Offence Act
3 REVN.209-2025.JUDGMENT.odt
2012 (for short "POCSO Act") and also under Sections 67, 67-A,
67-B of the Information and Technology Act.
2(ii). As per the allegations the incident has occurred on
04.03.2023 and thereafter in the month of April 2023 in the
house of accused No.5 namely Gokul @ Golu Ramesh Likhar at
Khapa, Tahsil Saoner. On 02.03.2023, accused No.1 at 02.30
p.m threatened the victim and obtained her nude photographs.
Thereafter on 04.03.2023 also accused Nos.1, 4, 5 and 7 have
called her and taken her nude photographs forcibly in the house
of accused No.5 and subjected her for forceful sexual assault.
Again in the month of April 2023 accused Nos.5, 6, 8, 9 have
subjected her for the forceful sexual assault and also threatened
her that if she disclose the incident to anybody the photographs
would be made viral. She was also threatened by accused Nos.2,
3, 10, 11 and 12 that they will make her photographs viral and
tortured her. On the basis of the said report Police have
registered the crime against the present Applicants.
2(iii). During investigation the mobile phones of accused
as well as the victim and the father of the victim were seized
and the same were forwarded to the analysis to the Regional 4 REVN.209-2025.JUDGMENT.odt
Forensic Science Laboratory, Nagpur (for short "RFSL"). The
RFSL, Nagpur analyzed the said mobile phones and prepared
the DVD/CDs and forwarded it to the Court alongwith the
report. The prosecution has recorded the evidence of
PW-1/Prajakta Subhash Pate Scientific Officer in RFSL, Nagpur.
2(iv). Her evidence shows that, on 13.10.2023 she
received 3 sealed packets with two reference documents as per
requisition vide outward No.4222/22 and also received 4
reference photographs. As per the said requisition, the mobile
phone of victim and her father was received by her. On
13.10.2023 her department has received another requisition
vide Outward No.4223/2023 alongwith three sealed packets, by
which the mobile phones of accused No.3 Vikas Hedao, accused
No.9 Gaurav Khubalkar and accused No.5 Gokul Likhar was
received by her. On the same day, she also received the another
requisition vide Outward No.4224/2023 by which three sealed
packets containing three mobile phones of accused No.2 Luky @
Burnnt Dharmik, accused No.8 Sushil Krishna Dharmik and
accused No.6 Nikhil Dhande was received by her. On the same
day vide requisition Outward No.4225/2023 by which three 5 REVN.209-2025.JUDGMENT.odt
sealed packets containing three mobile phones of accused No.12
Pranay Sunil Dekate, accused No.10 Vikky Likhar and accused
No.4 Ved @ Vedu Aawate was received by her. On the same day,
another requisition vide Outward No.4226/2023 she has also
received three sealed packets containing three mobile phones of
accused No.1 Dhiraj @ Bhoraj Hiwarkar, accused No.7
Leeladhar Chouragade and accused No.11 Snehal Surkar.
2(v). Her evidence further shows that, she has started
analysis of above mobile phones on 03.02.2025. As far as
requisition O.W.No.4222/2023 is concerned, the first mobile
phone was of victim, wherein she found one SIM which was of
Jio company. The another packet was having a mobile of OPPO
company. The Police have given the envelope No. Exh-2. In third
packet 4 reference photographs of victim were found with
different angles. On analysis of the said mobile phones she
found obscene photographs in Exh.1 and Exh.3. The reference
documents which were given to her was related to photographs,
which were found in Exh.3. She has given its data in her report
and Annexure in DVD, which is prepared by her. The said report
is at Exh.161. She has mentioned all chats and social media 6 REVN.209-2025.JUDGMENT.odt
data found in Exh.1 in given Annexure DVD. She has also found
videos in the mobile phones of victim Article-A. The
photographs related to obscene data of victim is identified by
her. There was details in user Account in two names. Victim was
operating her mobile and chats on the name of Kavita Nimje
and later on Diya. Vide requisition O.W.No.4223/2023 three
mobile phones alongwith SIM cards were received by her office.
The first mobile phone was of accused No.3 Vikas Hedao, which
was having sim of Jio company and Vodafone. The second
mobile phone was of accused No.9 Gaurav Khubalkar, which
was Real me company, wherein the sim card was of a Jio
company. The third mobile phone was of accused No.5 Gokul
Likhar of Red me company. She has found SIMs of Jio company.
She also found Facebook and snap chat in the mobile of accused
No.3 Vikas Hedao. She found snap chat, whats app chat and call
recording relating to the name which was mentioned as Kavita
Nimje. She has prepared her report in CD which bears her
signature.
2(vi). Her evidence shows that, some of the conversation
was found to be deleted and some were intact. Vide requisition 7 REVN.209-2025.JUDGMENT.odt
O.W.No.4224/2023 she received three mobile phones. The said
mobile phones are also analyzed by her which are of accused
No.2 Luky Dharmik of Red me company, accused No.8 Sushil
Dharmik of Y-53H company and accused No.6 Nikhil Dhande,
which was Samsung J-6 company. She found snap chat
conversation in the mobile phone of accused Sushil Dharmik.
She has also found snap chat conversation in Annexure CD
which is a part of her report. Similarly, she analyzed the mobile
phones which she received vide requisition O.W.No.4225/2023.
The first mobile phone of accused no.12 Pranay Dekate was not
in working condition. No data was Found. In the mobile phone
of accused No.4 Ved Aawate Instagram and Facebook chat was
found. In the mobile phone photographs are found but it were
not obscene. She has given the data in CD. Vide requisition
O.W.No.4226/2023 also she has received three mobile phones of
accused. The same are also analyzed by her.
2(vii). Her evidence shows that, she has found obscene
images and videos of a person in reference photographs and
documents in mobile phone of accused no.1 and mobile phone
of accused No.7 Liladhar. She has also found snap chat, whats 8 REVN.209-2025.JUDGMENT.odt
app chat, call recording and conversation. She has prepared the
data in the CD and DVD.
2(viii). Her evidence shows that, chatting and audios are
visible. In reference No. 4223/2023 of Exh.6 found chats of
accused No.5 with accused No.4 relating to the photographs.
Accused No.4 has sent the photographs of victim to accused
No.5.
2(ix). All these CDs/DVDs were produced before the Court
alongwith Forensic Analysis Report. Thereafter the application
came to be filed by the accused on the ground that during
evidence the Forensic Expert deposed regarding many messages
as deleted, so also at that time prosecution did not open all the
folders of those five DVDs/CDs. The defence wants to examine
this witness and thereafter the victim after going through all
those folders of five DVDs/CDs, as the same may be helpful to
the defence. It is further stated that, the evidence shows that
one or two photographs/videos were found to be obscene but
there are so many folders, and therefore, it is very difficult for
the defence to verify those folders in the Court, and therefore, 9 REVN.209-2025.JUDGMENT.odt
the copies of the same be given to them alongwith the RFL
examination report.
2(x). The said application was strongly opposed by the
State on the ground that, the accused persons are facing the
charges of subjecting the minor victim girl for forceful sexual
assault which is a gang-rape alongwith viral photographs of
victim. As per the provisions of the Indian Penal Code and
POCSO Act the copies of electronic evidence could not be given
to the accused or their Advocates as the issue of privacy and
dignity of the victim is involved, and therefore, the application
was partly allowed. The reports of Regional Forensic Science
Laboratory were directed to be given to the present Applicants.
2(xi). Being aggrieved and dissatisfied with the same, the
present Revision Application is filed on the ground that in the
interest of justice and for the fair trial the application deserves
to be allowed, as there was nothing incriminating in DVDs and
CDs. It is an absolute right of the accused to get copies of those
4 DVDs and CDs. The partly nude photographs and videos is
alleged to be found only in one DVD and CD which is marked as
Article-U. For the defence of the accused, it is necessary to put 10 REVN.209-2025.JUDGMENT.odt
the relevant questions, and therefore, the copies of said DVDs
and CDs are required, and therefore, directions be given to the
Sessions Judge for furnishing the copy of said DVDs and CDs
Articles-E, I, M, U and V.
3. Heard learned Counsel for the Applicants, who
submitted that, in view of Article 21 of the Constitution of India
the accused has right to have a fair trial and for the fair trial
these documents are required. The entire defence of the accused
is relied upon the said documents and if the said documents are
not handed over to the accused it would cause prejudice to the
accused, and therefore, in the interest of justice and for the fair
trial, the said documents be handed over to the
Applicants/accused.
4. After going through the submissions and especially
the evidence of the Expert and the report which is forwarded by
the Expert, after verification of the mobile phones of victim as
well as the accused persons it reveals that vide reference
No.4222/2023 she received mobile phones of the victim and her
father. The results of analyses shows that, on thorough cyber
forensic analysis of mobile phones of victim and her father 11 REVN.209-2025.JUDGMENT.odt
obscene images similar to the person present in reference
photographs provided Exh.6 to Exh.9 was found in Exh.1 and
this data is given in enclosed DVD. Exh.162 is the another
analyses report with reference No.4223/2023, by which the
mobile phone of accused No.3 Vikas Hedao, accused No.9
Gaurav Khubalkar and accused No. 5 Gokul Likhar were
analyzed. The analysis of the said report shows that, the
obscene images and videos similar to a person in reference
photographs and snap chat, whats app chat, contacts, call
recordings and other data was found. She converted the said
data in a CD. Vide reference No.4224/2023 the mobile phones
of accused No.2 Lucky @ Bunnt Dharmik, accused No.8 Sushil
Krishna Dharmik and accused No.6 Nikhil Dhande were
analyzed by her and on the analyses she found snap chat
conversion, obscene images and videos similar to a person in
reference photographs and social media data related to obscene
images and videos similar to a person in reference photographs.
The said data was given by her in a CD. Vide reference
No.4225/23 she has received the mobile phones of accused
No.12 Pranay Sunil Dekate, accused No.10 Vikky Likhar and
accused No.4 Ved @ Vedu Aawate which are also analyzed by 12 REVN.209-2025.JUDGMENT.odt
her, wherein also she has found Facebook, Instagram chats and
contacts related to mobile number and social media data related
to obscene images and videos similar to a person in reference
photographs are also found. Vide reference No.4226/2023 she
received the mobile phones of accused No.1 Dhiraj @ Bhoraj
Hiwarkar, accused No.7 Leeladhar Chouragade and accused
No.11 Snehal Surkar, which are also verified by her and on
analysis she found obscene images and videos to the person
present in reference photographs and snap chat, whats app
chat, call recordings, snap chat conversions. Thus, she has
converted the said data in a CD. Thus, all CDs and DVDs are
forwarded to the Court after the analyses.
5. The issue involved is about whether the Applicants
in view of Section 207 of the Code of Criminal Procedure
(Cr.P.C. for short) entitled to receive the said documents or the
CDs.
6. As far as the definition of the document is
concerned, Section 2(1)(t) of the Information Technology Act
defines the "electronic record" means data, record or data
generated, image or sound stored, received or sent in an 13 REVN.209-2025.JUDGMENT.odt
electronic form or micro film or computer generated micro
fiche.
7. Section 3 of the Evidence Act, also defines
"Document" means any matter expressed or described upon
any substance by means of letters, figures or marks, or by more
than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
8. Section 2(d) of the Bharatiya Sakshya Adhiniyam,
2023 the definition of "document" means any matter expressed
or described or otherwise recorded upon any substance by
means of letters, figures or marks or any other means or by
more than one of those means, intended to be used, or which
may be used, for the purpose of recording that matter and
includes electronic and digital records.
9. Now, as per the new definition of "Document" in
view of Section 2(e) of the Bharatiya Sakshya Adhiniyam, 2023
"evidence" means and includes- (i) all statements including
statements given electronically which the Court permits or
requires to be made before it by witnesses in relation to matters 14 REVN.209-2025.JUDGMENT.odt
of fact under inquiry and such statements are called oral
evidence; (ii) all documents including electronic or digital
records produced for the inspection of the Court and such
documents are called documentary evidence. Thus, the said
DVD and CD are covered under the definition of the document.
10. Section 207 of Cr.P.C. deals with the supply to the
accused of copy of police report and other documents. The first
proviso enables the Magistrate to withhold any part thereof
referred to in clause (iii), from the accused on being satisfied
with the note and the reasons specified by the investigating
officer as predicated in sub-Section (6) of Section 173. However,
when it comes to furnishing of documents submitted by the
investigating officer alongwith police report, the Magistrate can
withhold only such document referred to in clause (v), which in
his opinion, is "voluminous". In that case, the accused can be
permitted to take inspection of the concerned document either
personally or through his pleader in Court. In other words,
Section 207 of the 1973 Code does not empower the Magistrate
to withhold any "document" submitted by the investigating
officer alongwith the police report except when it is voluminous.
15 REVN.209-2025.JUDGMENT.odt
Thus, the Magistrate is under obligation under Section 207 to
furnish to the accused, free of cost, copies of the documents
mentioned therein, without any delay. Section 207 puts an
obligation on the prosecution to furnish to the accused, free of
cost, copies of the documents mentioned therein, without any
delay. It includes, documents or the relevant extracts thereof
which are forwarded by the police to the Magistrate with its
report under Section 173(5) of the Code. Such a compliance has
to be made on the first date when the accused appears or is
brought before the Magistrate at the commencement of the trial
inasmuch as Section 238 of the Code warrants the Magistrate to
satisfy himself that provisions of Section 207 have been
complied with. Proviso to Section 207 states that if documents
are voluminous, instead of furnishing the accused with the copy
thereof, the Magistrate can allow the accused to inspect it either
personally or through pleader in the Court.
11. Thus, the right of the accused with regard to
disclosure of documents is a limited right but is codified and is
the very foundation of a fair investigation and trial.
16 REVN.209-2025.JUDGMENT.odt
12. During the submissions, learned Counsel for the
Applicants has placed reliance on P. Gopalkrishnan Alias Dileep
Vs. State of Kerala & Anr., (2020) 9 SCC 161 . The fundamental
rights of the accused under Article 21 of the Constitution of
India regarding a fair trial and the right to privacy of the victim
both under Articles 14 as well as Article 21 of the Constitution
of India was considered by the Hon'ble Apex Court in the said
judgment.
13. In para 50, it is observed by the Hon'ble Apex Court
as under:
"50. In conclusion, we hold that the contents of the memory card/pen drive being electronic 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."
14. It has been further observed by the Hon'ble Apex
Court in para 49 which reads as under:
"49. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-
17 REVN.209-2025.JUDGMENT.odt
drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen-drive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution."
15. Thus, considering the right of the accused as to the
fair trial which is enshrined under the Constitution of India and
which cannot be taken away by any means. So the right of the
accused to defend a case and to prove his innocence is the
Constitutional right and for which he should get all the
prosecution records before trial to point out the flaw in the
prosecution case and also to establish his innocence. With this
intent Section 207 of Cr.P.C. empowers the Magistrate to furnish
the copies of Police report and other documents while dealing
with the same and Sessions Courts are empowered to do the
said exercise under Section 208 of Cr.P.C. At the same time
Section 228A of IPC which came into effect by way of 18 REVN.209-2025.JUDGMENT.odt
amendment from 25.12.1983 and subsequently amended with
effect from 03.02.2013 and 21.04.2018 prohibits printing or
publishing the name or any matter which make known the
identity of any person against whom an offence under Sections
376, 376A, 376AB, 376B, 376C, 376D, 376DA and 376DB or
Section 376E is alleged or found to have been committed.
Similarly, under Section 23(1) of POCSO Act penalizes making
any report or presenting comments on any child or any form of
media or studio or photographic facilities without having
complete and authentic information which may have the effect
of lowering the reputation or infringing upon the privacy of a
POCSO victim by any person. Thus, in view of Section 228A of
IPC and under Section 23(1) of POCSO Act, disclosing the
identity by way of reporting, commenting, or by printing or
publishing the same are offences covered by Section 23 (1) of
POCSO Act and under Section 228A of IPC. Therefore, the
contravention of the above provisions would make the person
an offender under the said provisions.
16. While reading Sections 207 and 208 of Cr.P.C. and
the right of the accused to get all documents which form part of 19 REVN.209-2025.JUDGMENT.odt
the prosecution records to defend his case requires a
consideration. At the same time, Section 33(7) of POCSO Act
imposes restrictions so as to ensure that the identity of the child
is not disclosed. So the Courts should consider a balance
between the privacy of the victims of rape and POCSO offences
with that of the right of the accused to defend his case and also
gives effect to all the above provisions, without making any of
the provisions as redundant or superfluous. Therefore, when
prosecution records are given to the accused in compliance with
Sections 207 and 208 of Cr.P.C, it is not fair to hold that the
accused is not entitled to get prosecution records without being
masked to defend the case. At the same time, on getting copies
of the documents the accused and the Counsel appearing for the
accused are duty-bound to ensure the privacy of the victim
without being disclosed by printing, publishing, reporting and
commenting which would have the effect of infringing upon the
privacy of the victims in any manner. Thus, subject to the above
restrictions to ensure fair trial some restrictions requires to be
imposed.
17. While maintaining the balance of this situation, the
observation of the Hon'ble Apex Court in the case of P. 20 REVN.209-2025.JUDGMENT.odt
Gopalkrishnan Alias Dileep (supra) is relevant, wherein it is
observed by the Hon'ble Apex Court as under:
"61. Be it stated, circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra- conflict between the same fundamental right ... Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances... Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes "Rule of Law".
It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger public interest and serve the majesty of rule of law."
18. Thus, it is observed by the Hon'ble Apex Court that,
the right to fair trial is not singularly absolute, as is perceived,
from the perspective of the accused. It takes in its ambit and
sweep the right of the victim(s) and the society at large. These 21 REVN.209-2025.JUDGMENT.odt
factors would collectively allude and constitute the Rule of Law
i.e. free and fair trial.
19. It is further observed by the Hon'ble Apex Court
that, the fair trial which is constitutionally protected as a
substantial right under Article 21 and also the statutory
protection, does invite for consideration a sense of conflict with
the interest of the victim(s) or the collective/interest of the
society. When there is an intra-conflict in respect of the same
fundamental right from the true perceptions, it is the obligation
of the constitutional courts to weigh the balance in certain
circumstances, the interest of the society as a whole, when it
would promote and instil Rule of Law. A fair trial is not what the
accused wants in the name of fair trial. Fair trial must soothe
the ultimate justice which is sought individually, but is
subservient and would not prevail when fair trial requires
transfer of the criminal proceedings.
20. In view of the above observations of the Hon'ble
Apex Court, it would be appropriate and in the interest of
justice to allow the prayer of the present Applicants with a
restriction as the CDs and DVDs as per the evidence of PW-1 22 REVN.209-2025.JUDGMENT.odt
Forensic Expert contains the obscene material. Therefore, it
would not be appropriate to give a copy to the present
Applicants, and therefore, to protect the interest of the accused
as well as to protect the interest of the victim and considering
that the contents of the said CDs or DVDs being an electronic
record, must be regarded as a document. If the prosecution is
relying upon the same, the accused is having a right to have an
access and 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 or
her identity, it would be justified in providing only inspection
thereof to the accused and as his/her Lawyer or Expert for
presenting the effective defence during the trial, and therefore,
the Application deserves to be allowed partly. Accordingly, I
proceed to pass the following order.
ORDER
i. Criminal Revision Application is partly allowed. ii. The Applicants/accused are permitted to inspect the electronic record through his Counsel and the IT Expert, if they chooses to engage such an Expert for such purpose.
23 REVN.209-2025.JUDGMENT.odt
iii. The Extra Joint District Judge-4 and Additional Sessions Judge, Nagpur shall permit the inspection of the said CDs and DVDs to the learned Counsel for the Applicants/accused with the help of IT Expert, if they chooses to engage such an Expert for such purpose.
21. Pending application/s, if any, shall stand disposed of
accordingly.
(URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 04/04/2026 13:09:02
Publish Your Article
Campus Ambassador
Media Partner
Campus Buzz
LatestLaws.com presents: Lexidem Offline Internship Program, 2026
LatestLaws.com presents 'Lexidem Online Internship, 2026', Apply Now!