Mahesh Thampi vs The State Of Kerala
2021 Latest Caselaw 20227 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MRS. JUSTICE M.R.ANITHA
     THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
                          CRL.MC NO. 4188 OF 2021
  (AGAINST THE ORDER IN CRL.M.P. NO.172/2021 IN S.C.171/2020 ON THE
              FILE OF FAST TRACK SPECIAL JUDGE, KOTTAYAM)
PETITIONER/ACCUSED:

            MAHESH THAMPI
            AGED 39 YEARS
            S/O. THAMPI,
            UMBUKKAD VEEDU, N.S.S.
            KARAYOGAM BHAGOM, S.H.MOUNT P.O.,
            KOTTAYAM.

            BY ADVS.
            C.S.MANILAL
            S.NIDHEESH



RESPONDENT/STATE:

            THE STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM-682 031.



            ADV.C.SEENA - PUBLIC PROSECUTOR




     THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   ADMISSION   ON
30.09.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 4188 OF 2021

                                2




                             ORDER

Dated this the 30th day of September 2021

Petitioner is the accused in S.C No.171/2020 pending

before the Fast Track Special Court, Kottayam, which arose out

of Crime No.155/2020 of Kumarakom Police station. This Crl.

M.C. has been filed aggrieved by Annexure -A6 order in Crl. M.P.

No.171/2021 in the said case. Copy of the petition has been

produced as Annexure-A4.

2. According to the petitioner the allegation against him

is that he had shown the victim obscene pictures in his mobile

phone. His mobile phone has been seized by the investigating

officer and sent for examination to the Forensic Science

Laboratory. The CD has been forwarded along with the report to

the trial court. So petitioner seeks to allow the counsel for the

petitioner/accused to inspect the CD with the aid of an expert in

the presence of the petitioner in the court premises/office or CRL.MC NO. 4188 OF 2021

Court Hall.

3. By the impugned order, the Special court dismissed

the petition. Aggrieved by the same the petitioner came up

before this Court. Notice was issued to the respondent. The

respondent appeared through the learned Public Prosecutor.

4. Heard both sides. The main contention of the learned

counsel for the petitioner is that prosecution allegation is that

alleged obscene pictures were deleted and the request of the

Police was to retrieve the same and to find out the traces from

the mobile based on the forensic examination. As per the

expert advice received to the petitioner, the date of deletion can

be ascertained by the examination of the CD with the aid of

expert. Hence this Crl.M.P. No.171/2021 was filed by him. The

learned counsel relies on the dictum laid down by the

Honourable Supreme Court in P. Gopalakrishnan alias Dileep

vs. State of Kerala and another [AIR 2020 SC 29],

paragraph No.43 of the said judgment was highlighted by the CRL.MC NO. 4188 OF 2021

learned counsel, which reads thus:

43. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen- drive in question, he can request the magistrate to provide him inspection in Court, if necessary, even for more than once along with 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 authorised 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.

5. According to the learned counsel, the prosecution is

relying on the contents of the CD and hence he should be CRL.MC NO. 4188 OF 2021

permitted to inspect the contents of the CD in order to ascertain

the date of deletion. In the impugned order the findings of the

Special Judge is that as per the report there is only a single

folder in the CD produced along with the report. That single

folder contains the retrieved pictures only and there is no scope

to find out the date of deletion of pictures from the mobile

phone by inspection of the CD.

6. It is not clear from the impugned order as to how the

learned Special Court arrived at that conclusion. Contention of

the petitioner is that he got expert advice in that regard. In

Gopalakrishnan @ Dileep (supra) referred above the Apex

Court laid down the position of law regarding the rights of the

accused to examine the CD with aid of an experts for the

purpose of defending his case. So in order to ensure fair trial

which is a constitutional mandate, I am of the view that an

opportunity should be given to the counsel for the petitioner to

inspect the CD with the aid of an expert in the presence of the

petitioner, to secure the ends of justice. CRL.MC NO. 4188 OF 2021

Hence, the impugned order passed by the learned Sessions

Judge is set aside and the petitioner is given an option to

inspect the CD with the aid of an expert in the presence of the

Judge concerned or anybody authorised by him, prosecutor and

also the counsel for the petitioner and petitioner. The Special

Judge is also directed to give suitable directions as provided

under paragraph No.43 of the decision cited and extracted

above.

Hence, Crl.M.C allowed as above.

Sd/-

M.R.ANITHA JUDGE SMF CRL.MC NO. 4188 OF 2021

APPENDIX OF CRL.MC 4188/2021

PETITIONER'S ANNEXURE

Annexure A1 TRUE COY OF THE F.I.R IN CRIME 155/2020 OF KUMARAKOM POLICE STATION.

Annexure A2 TRUE COPY OF THE FSL REPORT DATED NIL.

Annexure A3 TRUE COPY OF THE JUDGMENT REPORTED IN AIR 2020 SC 1.

Annexure A4 TRUE COPY OF THE PETITION IN CRL.M.P.172/2021 IN S.C.171/2020 ON THE FILE OF FAST TRACT SPECIAL COURT (POCSO), KOTTAYAM.

Annexure A5 TRUE COPY OF THE OBJECTION IN CRL.M.P.172/2021 IN S.C.171/2020 ON THE FILE OF FAST TRACT SPECIAL COURT (POCSO), KOTTAYAM.

Annexure A6 CERTIFIED COPY OF THE ORDER IN CRL.M.P.

172/2021 IN S.C.171/2020 ON THE FILE OF FAST TRACT SPECIAL COURT (POCSO), KOTTAYAM.

//TRUE COPY//

PA TO JUDGE