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2013 DIGILAW 663 (MP)

Ashad Khan @ Ashu Pathan v. State of M. P.

2013-05-17

M.K.Mudgal

body2013
ORDER 1. The petitioner/accused has filed this petition under section 482 of CrPC against the order dated 6.2.2013 passed by the Court of Special Judge, Datia in ST No.16/2013 rejecting the application under section 91 of CrPC filed by the petitioner/accused for supplying the copy of the CD which has been made the basis of the prosecution case and produced by the respondent/State alongwith the charge sheet for proving the case. 2. As alleged by the prosecution, in brief the facts of the case are that on 1.10.2012 at 7:30 prosecutrix “s” was raped by the accused Abhishek Tripathi, Kaushal Kishore Goswami and five others. Besides the rape a video film of the incident was prepared by Sandesh Yadav and Abhishek Tripathi by their mobile. A report to this effect was lodged on 6.10.2012, on the basis of which, FIR was registered and after investigation the charge sheet has been filed against the accused persons under sections 376(d), 377, 363, 366, 341, 342, 294, 323, 506-B, 201, 190, 292 of IPC, under Sections 66, 67, 67(a), 67(b) of I.T. Act. and under sections 4, 6 of Protection of Children Sexual Harassment Act, 2012. At the stage of charge, an application under section 91 of CrPC for supplying the video CD, on the basis of which, a transcript panchnama has been prepared and has been produced on record along with the charge sheet but copy of the video CD has not been supplied by the prosecution under section 207 of CrPC was submitted before the trial Court. The aforesaid application was rejected vide impugned order stating that the CD has been sent for examination and has not been received back and whenever the CD will be received back it would be given to the accused persons. In addition to this, the trial Court has further observed that Sessions Judge has directed the Court to decide the case within 45 days and so the case cannot be stayed. 3. In addition to this, the trial Court has further observed that Sessions Judge has directed the Court to decide the case within 45 days and so the case cannot be stayed. 3. The petitioner’s learned counsel submits that the Video CD is an important piece of evidence in this case as the charges under sections 66, 67, 67(a) and 67(b) of the I.T. Act have been framed against the accused persons and on the basis of video CD, the transcript panchnama has been prepared and the same has been filed on record but copy of the CD has not been supplied owing to which, the accused persons would not be able to defend their case effectively and they would be prejudiced in their defence. 4. Learned counsel for the petitioner by placing reliance on the judgment V.K. Sasikala v. State, 2013 CRILJ 177 has contended that the impugned order being not based on proper reasonings deserves to be set aside. 5. The learned Panel Lawyer on behalf of the prosecution has opposed the petition and has requested to reject the revision. 6. The arguments were considered. 7. The video CD, on the basis of which, the transcript panchnama has been prepared and has been produced on record is an important piece of evidence and is foundation of charges of I.T. Act. 8. Admittedly, the copy of the CD has not been supplied by the prosecution under section 207 of CrPC which is the mandatory provision. Moreover, this CD has not been claimed by the prosecution to be a privilege document. Besides, without perusing the CD, it cannot be assessed by the accused what photographs were taken by the accused and what conversation was recorded in it as alleged by the prosecution. The accused has the right to get all the documents on which the prosecution has relied to prove its case. In this case a few charges under sections 66, 67(a), 67(b) of the I.T. Act have been framed against the accused persons and so it is necessary for the accused persons to know the actual and real contents of the CD to defend themselves effectively. The request made by the accused for supplying the CD is neither illegal nor unjustified. In this case a few charges under sections 66, 67(a), 67(b) of the I.T. Act have been framed against the accused persons and so it is necessary for the accused persons to know the actual and real contents of the CD to defend themselves effectively. The request made by the accused for supplying the CD is neither illegal nor unjustified. Though, the request of the accused for supplying the CD has not been flatly refused by the lower Court vide impugned order, yet the lower Court has not seriously attempted to supply the CD to the accused persons and so to issue the direction to supply the copy of the CD to the accused persons is necessary in this matter so that the accused persons defend their case properly. 9. On consideration of the above facts, allowing the petition, the lower Court is directed to supply the copy of the video CD to the accused persons without any delay as far as possible. 10. Petition is disposed of accordingly.