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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

906 CRIMINAL WRIT PETITION NO.38 OF 2020

Kedar Munjaji Wankar,

Age; 32 years, Occ; Business,

R/o; Sonpeth, District; Parbhani.

...Petitioner

VERSUS

1.

The State of Maharashtra,

Through in-charge of Sonpeth

Police Station,

District; Parbhani.

2.

Mahesh Punjaji Patil,

Age; 44 years, Occ; Business,

R/o; Bhoigalli, Sonpeth,

Taluka Sonpeth,

District; Parbhani.

3.

S.L. Sitikar,

Investigating Officer,

Sonpeth Police Station,

Sonpeth, District; Parbhani. ...Abated ...Respondents

...

Advocate for Petitioner : Mr.Salok Amol M. and Mr.Bhosle Mahesh K.

APP for Respondent No. 1-State : Mrs. Geeta L. Deshpande

Advocate for Respondent No. 2 : Mr.Gujrathi Pushpak U.

...

CORAM : SURENDRA P.TAVADE , J.

DATE : 11^th August, 2021.

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith. By consent of

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learned counsel for both the parties, heard finally at admission stage.

2.

The original informant in RCC No. 59 of 2012 registered

at Sonpeth J.M.F.C.Court, District Parbhani has preferred this writ

petition and prayed that the seized mobile be sent to the forensic lab

for analysis to prove the charge against respondent Nos. 2 and 3. It

is contended that the petitioner had lodged FIR against respondent

No. 2 which was registered with Sonpeth Police Station and on the

basis of said FIR the investigation was carried out. The Investigating

Officer had seized the mobile, but it was not sent to the Court along

with charge-sheet. The charge-sheet is filed in RCC No. 59 of 2012.

There were two SIM cards in the seized mobile, ultimately on the

request of the informant the Investigating Officer produced the seized

mobile in the Court on 06.08.2019. Thereafter, the informant has

filed an application for sending it to the forensic lab for analysis as

per the application (Exh.-C) ‘page No. 58 of the petition’. The Trial

Court passed an order directing to the Investigating Officer to submit

his explanation, but the said explanation was not furnished by the

Investigating Officer. Thus, the petitioner has preferred another

application (Exh.-E) of this petition, wherein, the trial Court passed

the following order :

“Read the application and say thereon. Perused the

record, the prosecution have to adduce evidence as they

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required at their efforts. Hence Ld. A.P.P. is hereby

directed to consulted with P.I. of concern P.S. and do

needful instead of moving the Court to collect evidence.”

2.

The above impugned order is challenged in the present

petition.

3.

Heard learned counsel for the petitioner, learned APP for

respondent No. 1 and the learned counsel for respondent No. 2.

4.

Learned APP submitted that respondent No. 2 is facing

charge under Sections 67 of the Information and Technology Act read

with Section 294 of the Indian Penal Code. According to FIR, the

petitioner received messages from respondent No. 2 which were

objectionable. The said allegation could be proved only with the help

of forensic report of mobile phone. Hence the analysis of mobile

phone is required. The above submissions are adopted by the learned

APP on behalf of the State (R-1).

5.

On the other hand, learned counsel for respondent No. 2

submitted that the order of the trial Court is perfectly legal as Court

cannot collect evidence on behalf of party and it is the sole

responsibility of the Investigating Officer to collect the evidence and

produce it along with the charge-sheet. He also submitted that at the

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time of filing of charge-sheet the Court staff did not take pain to verify

whether any article is seized by the Investigating Officer. So the

mobile was not produced in the Court till 08^th August, 2019. He also

submitted that charge-sheet is filed in the 2012 and since 2012

nothing is done b