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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Ravindra V Ghuge, B.U. Debadwar, JJ.
Yogesh Arun Wakure - Appellant
Versus
State Of Maharashtra & Anr. - Respondents
Criminal Appeal No. 74 of 2021, 105 of 2021
Decided On : 10-03-2021
CDR - Criminal Appeal - Section 169 of the CrPC, Section 45A and Section 65B of the Indian Evidence Act - The court discussed the admissibility of electronic evidence, including CDR and CCTV footage, and emphasized the importance of complying with Section 45A and Section 65B of the Indian Evidence Act in evaluating such evidence.
Fact of the Case:
The appellant challenged the trial court's direction to submit a supplementary charge-sheet against him based on the trial court's apprehension about the electronic evidence and the statement of an alleged eye-witness placing the appellant at the crime spot.
Finding of the Court:
The court found that the trial court should have considered the report under Section 169 of the CrPC along with the electronic evidence in compliance with Section 45A and Section 65B of the Indian Evidence Act.
Issues: The issues revolved around the admissibility and evaluation of electronic evidence, the trial court's reliance on an alleged eye-witness statement, and the direction to submit a supplementary charge-sheet against the appellant.
Ratio Decidendi: The court emphasized the importance of complying with Section 45A and Section 65B of the Indian Evidence Act in evaluating electronic evidence and held that the trial court should not have disregarded the report under Section 169 of the CrPC based on the CDR and CCTV footage.
Final Decision: The impugned order was quashed and set aside, and the appellant was directed to abide by the bail conditions. The report under Section 169 of the CrPC was restored to the trial court for reevaluation in compliance with Section 45A and Section 65B of the Indian Evidence Act.
Certainly. Based on the provided legal document, the key points are as follows:
The judgment emphasizes the critical importance of complying with Sections 45A and 65B of the Indian Evidence Act when evaluating electronic evidence such as CDR and CCTV footage. Proper adherence ensures the admissibility and reliability of such evidence (!) (!) .
The court underscores that reports under Section 169 of the CrPC, which conclude that there is no material against a person at the investigation stage, should not be accepted blindly or dismissed solely based on suspicion. These reports must be considered alongside electronic evidence, subject to the provisions of Sections 45A and 65B of the Indian Evidence Act (!) (!) .
The case highlights that electronic evidence, including CCTV footage and CDR/SDR records, must be scrutinized for authenticity and tampering, with expert opinions obtained under Section 79A of the Information Technology Act. Such evidence should not be disregarded without proper examination (!) .
The judgment clarifies that a report under Section 169 of the CrPC does not interfere with the investigation process and should be revisited by the trial court after the electronic evidence has been evaluated in accordance with the relevant legal provisions (!) (!) .
The court directed that the electronic evidence and related reports be re-evaluated by the trial court in compliance with Sections 45A and 65B of the Indian Evidence Act and Section 79A of the Information Technology Act, ensuring a fair and proper assessment of all evidence (!) (!) .
The impugned order was quashed and set aside, with instructions for the trial court to reconsider the electronic evidence and the report under Section 169 of the CrPC after proper legal scrutiny, and to proceed accordingly (!) (!) .
The appellant was released on default bail, but was reminded to adhere to the bail conditions, and the case was disposed of as infructuous due to the appellant's release (!) .
The court ordered the preservation and transmission of electronic evidence, including CDR/SDR records and CCTV footage, to the trial court for proper examination, ensuring the integrity of the evidence is maintained (!) (!) .
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JUDGMENT
1. On 04.03.2021, after briefly hearing the learned Advocates/prosecutor for the respective sides, we had passed the following order : -
"1. By Criminal Appeal No.105 of 2021 the appellant seeks to challenge the order dated 22-01- 2021 delivered by the learned Special Judge, Osmanabad, vide which, the report of the investigating agency under Section 169 of the CrPC, has been negated and the Investigating Officer has been directed to submit supplementary charge-sheet against the present appellant / accused - Yogesh.
2. Hearing of this appeal has commenced and as the learned Advocate for the appellant took us through the record available, we noticed that the CDR / SDR compilation at page nos. 194 to 196 set out in Criminal Appeal No.74 of 2021 (appeal paper book), does not reflect that the nodal officer of the cellular service provider has submitted those details.
3. The learned Prosecutor has drawn our attention to certain pages of the case diary pertaining to the case in hand indicating that the Investigating Officer (SDPO) has tendered a communication to the Superintendent of Police, Osmanabad praying for obtaining the CDR / SDR record from the service provider. The trial Court has disbelieved the said record. Ex facie, we find that the said record does not carry the letterhead of the service provider, inasmuch as, the nodal officer of the service provider is empowered to issue such CDR / SDR record print out only on a specific request as is prescribed in law.
4. Since we do not find that there is any authenticity lent to such record, we are directing the Superintendent of Police, Osmanabad to contact the service provider (we are informed that the appellant Yogesh was a subscriber with Jio Reliance) and obtain the CDR/ SDR record for his (appellant - Yogesh) Cell No.9975079298 for the 24 hours, beginning from 19-08-2020 (00.00 hours) ending on 19-08-2020 (23.59 hours). This record shall be urgently placed before this Court, in view of the commencement of the hearing of this appeal, in a sealed envelope, on 10-03-2021.
5. Since the I.O. has already collected the CCTV footage from Hotel Saptarang, Ausa Road, Latur from 11:00 a.m. till 14:12 hrs, dated 19-08-2020, the transcription of the said footage shall be placed before us on 10-03-2021.
6. In the meanwhile, considering that appellant - Yogesh Wakure has been arrested on 25-08-2020, he is at liberty to seek default bail, from the Trial Court. In the event of Yogesh making an application for default bail, the trial Court shall decide the said application on it's merits, within 3 days.
7. Stand over to 10-03-2021 in the urgent category. This matter is part-heard."
2. Pursuant to our above order, the learned Counsel for the appellant - Yogesh submits, that his Criminal Appeal No. 74 of 2021 can be disposed off as being infructuous since he has been granted default bail by the trial Court on 06.03.2021. As such, Criminal Appeal No. 74 of 2021 is disposed off as being infructuous.
3. In the present Criminal Appeal No. 105 of 2021, the appellant is aggrieved by the direction of the trial Court, below Exh.1 in Special Case No. 99/2020, vide which, the trial Court has expressed an apprehension about the electronic evidence available as well as the production of the CDR / SDR record by a Cellular Service Provider. Further grievance of the appellant is, that the trial Court relied upon the statement of an alleged eye-witness, on the basis of which, the presence of the accused at the crime spot is alleged in between 12:00 noon to 01:00 pm on 19.08.2020. Shri. Salunke strenuously contends, that when the I.O. himself has submitted his report u/s 169 of the Code of Criminal Procedure (in short 'Cr.P.C.'), concluding on the basis of the electronic evidence, that the present appellant was 60 kms away from the crime spot during the same time frame when the crime occurred, the trial Court cannot sit over the independent view expressed by the I.O. and disbelieve the said evidence by relying on
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