Investigating Officer/Agency Has Power To Place Material Before Court To Support Its Case At Any Stage Of Trial: Bombay HC [Read Order]

The Bombay High Court has held that an investigating officer or agency has the power to place before the court any material that supports its case, at any stage of the trial.

Justice Manish Pitale of the Nagpur bench passed the judgment in a writ petition filed by one Rajesh Thakur and others, accused under Section 67-A of the Information Technology Act, 2005 and Sections 509 and 292 of the Indian Penal Code (IPC).

Case Background

The complainant of this case had filed a FIR at Pulgaon, Wardha, on September 14, 2012, alleging that the accused had uploaded a video of her on the Internet, thereby violating the aforementioned provisions. The accused were arrested on the same day and the investigating officer (IO) seized some material from the accused like mobile phones and memory card.

Thereafter, on January 9, 2018, the IO filed an application before the trial court seeking permission to send the seized muddemal property (item used for crime and recovered from the accused), in this case mobile phone and memory card, for forensic examination.

Petitioners argued that prejudice would be caused to them if the application filed after five years was allowed and that when evidence of a panch witness was already recorded and part of examination-in-chief of the complainant was over, it was too late in the day for the investigating officer to move the said application. It was contended that lacunae were sought to be filled in by the investigating officer by moving the said application.

However, the trial court concluded that such application could be moved by the investigating officer under Section 173(8) of the Criminal Procedure Code and allowed the application in an order dated March 28, 2018. Thereafter, the accused filed the present writ petition.

Judgment

The court referred to two judgments of the Supreme Court, Central Bureau of Investigation vs. R.S. Pai and Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patil and Ors, wherein Section 173(8) of CrPC was examined, and said: “In the present case, in the application at Exh.85, it has been stated by the investigating officer that although the said property i.e. mobile phones and memory card were seized during investigation, due to inadvertence of the then investigating officer, the same could not be sent for forensic analysis.

The aforesaid position of law further demonstrates that the investigating officer/agency, has the power at any stage of trial, to place before the Court such material that would assist the investigating agency to put forward its case. In this situation, the argument of prejudice would not come to the rescue of the petitioners. Accordingly, the writ petition is found to be without merit and it is dismissed.”

However, the court acknowledged that over five years had passed and directed the forensic laboratory to submit its report regarding mobile phone and memory card within six weeks and ordered the trial court to complete the trial and pass a judgment within eight months.