VINOD JAIN (BAIRATHI) Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This is a petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code'), by which the applicant is assailing the order dated 09/02/2019 passed by the Second Additional Sessions Judge, Biaora, District-Rajgarh in Sessions Trial No.436/2017, whereby the applications under Section 311 of Cr.P.C and Section 65-B of Indian Evidence Act, filed by the complainant on 10/08/2018 seeking leave of the Court for taking on record voice recording of the conversation took place between the applicant and the prosecutrix through the mobile phones belonging to the applicant and prosecutrix's mother, so also the call details of those mobile phones as additional evidence.

(2.) Briefly stated the facts of the case are that the applicant is facing the trial for the offence under Sections 376(2) , 380 and 506 of IPC. During the trial, the prosecution produced the call details of the mobile phone numbers 97552529541 and 8965820545 belonging to the present applicant and Dhankuwarbai, the mother of the prosecutrix, respectively and alleged that the prosecutrix and the accused used to talk with each other through these mobile phones. The prosecution also filed the voice recording of the conversation took place between the accused and the prosecutrix and prayed for taking these documents/electronic data on record so that they may be proved during the evidence. Necessary certificate under Section 65 B of the Indian Evidence Act is also enclosed with the said electronic data. But the same was opposed by the counsel for the accused on the following grounds: Firstly, that no additional documents can be received by the Court after the charge-sheet was submitted in the Court and the copies thereof were supplied to the accused person under Section 173 of 'the Code'.  Secondly, the electronic data is also not admissible in evidence as it was a fictitious and fabricated one and was not seized by police during investigation. The learned trial Court allowed the prayer of the prosecution for taking the electronic evidence on record as additional evidence.

(3.) Learned counsel for the applicant has vehemently argued that after the completion of investigation and submission of charge-sheet, no additional document can be allowed to be taken on record. The investigation has already been completed when the charge-sheet was filed in the Court and the additional evidence thereafter can be brought on record only by further investigation, if permitted by the Court. It is also contended that the said electronic data was neither seized by the investigating officer during the investigation nor was filed with the charge- sheet, therefore, these circumstances indicates that the electronic data filed by the prosecution is fictitious, forged and fabricated. It is further submitted that said course adopted by the prosecution and also the leave granted by the trial Court is not legally permissible, as no further investigation was done by the Police, therefore the order of the trial Court deserves to be quashed being illegal, arbitrary and against the provisions of Section 173(8) of 'the Code'. In support of his submissions, learned counsel relied upon the judgments of Hon'ble Supreme Court in the case of Reeta Nag vs State of West Bengal & Ors ., reported as (2009) 9 SCC 12 and Amrut Bhai Patel vs. Suman Bhai Kanti Bhai Patel and Ors reported in (2017) 4 SCC 117.