The main legal point established in the judgment is the significance of electronic evidence in proving the alibi of the accused and the importance of considering the material on record and the investigating officer's satisfaction with the evidence before summoning the accused to face trial.

JUDGMENT

1. Rule. Rule made returnable forthwith. By consent of the parties heard finally.

2. The applicant has impugned the order of the learned Extra Joint Additional Sessions Judge, Osmanabad, in Special Case No.26 of 2021 below Exhibit-99 dtd. 14/9/2022.

3. A Special Public Prosecutor had moved an application under Sec. 319 of the Criminal Procedure Code for summoning the applicant to face the trial and then to allow the charge sheet under Sec. 173(8) of the Criminal Procedure Code. The applicant was named in the FIR but was not arraigned as an accused in the charge sheet. Before passing the impugned order, he was called and heard.

4. In a report, the allegations were also made against the applicant. His brother had submitted an application before the investigating officer that, at the time of the alleged incident, the applicant was at his workplace. He claimed that he was captured in the CCTV footage of his workplace. The investigating officer collected the CCTV footage and was satisfied that the applicant was at his workplace at the time of the alleged incident. The investigating officer submitted a charge sheet against the other accused. He put a footnote thereon reserving his right to file a charge sheet if any adverse material was found in the CCTV footage on receiving the Chemical analysis (C. A. report for short) report. He received the C. A. report and placed it before the Court. But he did not apply for leave to file a charge sheet against the applicant. The report supported the case of the applicant that at the time of the alleged incident, he was in the bank where he was serving. Thereafter, the victim led the evidence before the Court, and she deposed against the applicant. Then, the Special Public Prosecutor moved an application as mentioned above, and the impugned order was passed.

5. It is not a matter in dispute that, prima facie, the investigation officer was satisfied from the electronic evidence that the applicant was not present on the spot at the time of the alleged incident. After receiving the C. A. report, he did not pray to the Court to submit a supplementary charge sheet under Sec. 173(8) of the Criminal Procedure Code.

6. The learned Extra Joint Additional Sessions Judge, Osmanabad recorded the findings in paragraph no.9 of the impugned order that "It is equally true that though learned advocate for the accused submits of his plea of alibi and allegedly CCTV footage and statement of the witnesses in favour of the allegedly intended accused and alleged CDR and SDR reports produced on record alleging that accused was at far distance away from the spot, but that would come in consideration at later stage. It is also equally true as submitted by APP that presently what evidence is on record has to be considered and it does not depend on the submission of learned advocate for the accused like at the time of consideration of bail, those reports were considered at the Hon'ble High Court and accused was given bail". It has been further observed in paragraph no.10 that "The alleged claimed defence of alibi and whatever evidence brought on record may or do not affect the merits of the prosecution story and prosecution case claimed by the learned advocate for the accused, but its consideration would be at the appropriate time in the evidence not opinion can be formed as regards it. Hence, it concludes to issue summons to the intended accused to face the trial by adding him in the charge sheet."

7. With the above observations, the summons was issued under Sec. 319 of the Criminal Procedure Code.

8. Learned counsel for the applicant has vehemently argued that the impugned order is against the extraordinary jurisdiction of the Court summoning the accused to face the trial. Even if it is accepted that the applicant was allegedly involved in the case, the evidence placed on record through CCTV footage in rebuttal is sufficient to hold that the trial against him would not culminate in conviction. He also argued that it i