IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

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ON THE 19 OF JANUARY, 2026 MISC. CRIMINAL CASE No. 47532 of 2025 BRAJVANSHI LAL Versus THE STATE OF MADHYA PRADESH Appearance:

Shri Sameer Kumar Shrivastava - Advocate for the petitioner.

Ms. Kalpana Parmar - PL for the respondent/State.

ORDER The instant petition under Section 528 of BNSS is directed against the order dated 09.10.2025 passed by Additional Sessions Judge, Datia in Session Trial No.79/2024, whereby an application filed by the prosecution for bringing a CD on record, has been allowed.

2. Learned counsel for the petitioner has vehemently argued that the impugned order suffers from perversity and illegality in so far as it is not in consonance with the provisions on which reliance has been placed by the Court below. It is further submitted that if at all there was any recording of the incident seized at the very inception, it would have been mentioned in the seizure memos of the petitioners or of the spot, but from bare perusal of the seizure memos, it is not evident that any such camara or footage was ever seized. It was further submitted that even in the statements of prosecution witnesses recorded so far, nothing has surfaced so far as recording of the incident by any of the camera of the vicinity and how the said footage reached to the mobile of Constable Manoj Tomar (645), which could have been said to be a primary source, has not been mentioned in the application, except for the bald fact that though the said footage was recovered at the time of investigation, the same due to oversight could not be made a part of the challan, which is highly improbable and not permissible.

3. While, referring to Section 173(8) of Cr.P.C., it is argued that though it is well settled under Sub-section (8) of Section 173 of Cr.P.C., investigation is permitted and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognizance of any offence on the strength of a police report earlier submitted, but herein it is not a case of prosecution that after submission of final report under Sub-Section 2 of Section 173 of Cr.P.C., during further investigation the said CD was procured, which could had made the trial Court to have allowed to be taken on record, thus, the application of aforesaid provision allowing the application is without any sum and substance.

4. Learned counsel further submitted that the provision of Section

242(2) of Cr.P.C., as referred to by the trial Court is also not applicable to the present situation, as the said provision would be made applicable to make witness attend the Court proceedings and to produce any document or any other thing, if it is so required by the Court, but herein case, it is not the situation, therefore the said provision is also not applicable. Further advancing his arguments, learned counsel submitted that the said provision is not applicable for a simple reason that herein case, the witness was to be called by the prosecution and not by the Court. On the basis of the aforesaid arguments, it is submitted that the impugned order being dehors of the legal provisions is liable to be set aside.

5. On the other hand, learned counsel for the State while supporting the impugned order submitted that the CD, which has been tried to be brought on record was obtained during the course of investigation but inadvertently or due to oversight, it could not be submitted alongwith the charge sheet, thus, in the fitness of things and in the interest of justice allowing of the said application by the prosecution cannot be said to be perverse or illegal, therefore, the present petition being devoid of merits be dismissed.

6. Heard learned counsel for the parties and perused the record.

7. The prosecution by way of an application had sought to bring on record one CD alleging that it contains the footage of the scene of crime and due to inadverte