Allowed¶24

Piyush S/O Vinod Marathe v. the State of Maharashtra

Bombay HC10 Jan 2025WP/632/2024

Case brief

AI extract

What is this about?

Bombay High Court, Bench at Aurangabad (2025:BHC-AUG:11119), Criminal Writ Petition No. 632 of 2024, decided 15.04.2025 by Shailesh P. Brahme, J. Piyush s/o Vinod Marathe v. State of Maharashtra. Keywords: Section 311 Cr.P.C.; Section 348 BNSS; Section 173(8) Cr.P.C.; Section 193 BNSS; section 65B Evidence Act certificate; recall of informant/witness; CCTV footage; compact disc marked Article A and B; material not collected during investigation; not part of charge-sheet; new material cannot be introduced in prosecution; Exhibit-47; R.C.C. No. 970 of 2018; FIR 23.01.2018 Sanjay Bhaskar Kshemkalyani; charge-sheet 27.10.2018; Chief Judicial Magistrate Ahmednagar; order unsustainable; error of jurisdiction; writ petition allowed in terms of prayer clause (B).

What did the court decide?

Writ Petition allowed in terms of prayer clause (B)

Piyush S/O Vinod Marathe vs the State of Maharashtra — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Writ Petition allowed in terms of prayer clause (B)

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Issue for consideration

Whether the order dated 14.08.2023 passed below Exhibit-47 by the Chief Judicial Magistrate, Ahmednagar recalling the informant for further examination is legally sustainable. +1 more

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Court's answer

The impugned order failed to take into account the above aspect of the matter and therefore resulted into a grave error of jurisdiction.

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Ratio / Principle

What is sought to be proved through application Exhibit-47 (the CCTV footage/compact disc) is extraneous: the compact disc and CCTV footage are not part of the charge-sheet, and it is not the respondent's case that the investigating officer undertook further investigation under Section 173(8) Cr.P.C pursuant to which such material was collected.

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Key takeaways

Unlike civil proceedings, it is not permissible in a criminal prosecution to bring on record any new material by resort to Section 311 of Cr.P.C (Section 348 of B.N.S.S).ratio¶19
Compact discs, merely because they were marked as Article A and B along with a certificate, are not thereby proved; they need to be proved in accordance with law, and whether the material was collected by following due procedure of law is a relevant factor which the learned Judge overlooked.ratio¶22
The impugned order recalling the informant is unsustainable and suffers from error of jurisdiction.

Detailed headnote1 paragraphs

Criminal Writ Petition challenging order dated 14.08.2023 passed below Exhibit-47 by the Chief Judicial Magistrate, Ahmednagar in R.C.C. No. 970 of 2018, recalling the informant for further examination under Section 311 of Cr.P.C (Section 348 of B.N.S.S.) to prove CCTV footage/compact disc. Held: the compact disc and CCTV footage were neither collected during the investigation nor formed part of the charge-sheet; it was not the respondent's case that further investigation under Section 173(8) Cr.P.C (Section 193 B.N.S.S.) was undertaken; such extraneous material cannot be brought on record for the first time in a prosecution, the power under Section 311 being exercisable at any stage yet not unfettered, unlike civil proceedings. Non-raising of objection when the discs were marked Article 'A' and 'B' with a section 65B certificate does not validate probative value; the discs must be proved in accordance with law, and collection by due procedure is a relevant factor overlooked by the learned Judge. The impugned order was held unsustainable and vitiated by grave error of jurisdiction; the writ petition was allowed in terms of prayer clause (B).

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2025:BHC-AUG:11119

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1 52.CR.WP-632-2024.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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52 CRIMINAL WRIT PETITION NO. 632 OF 2024

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PIYUSH S/O VINOD MARATHE VERSUS THE STATE OF MAHARASHTRA

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Advocate for the Petitioner : Mr. Deshmukh Charuta Sunil APP for Respondent/State : Mrs. Chaitali Choudhari Kutti

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CORAM : SHAILESH P. BRAHME, J. DATE : 15^th APRIL 2025

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PER COURT :

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. Heard both sides finally at the admission stage.

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Petitioner is aggrieved by order dated 14.08.2023 passed below Exhibit-47 by Chief Judicial Magistrate, Ahmednagar in R.C.C No. 970 of 2018, recalling the informant for further examination.

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Learned counsel for the petitioner submits that application Exhibit-47 was submitted belatedly after recording deposition of four witnesses of the prosecution. The compact disc and the CCTV footage were not collected during the course of investigation and are not part of charge-sheet. It is submitted that the material which was not part of the investigation or charge-sheet can not be brought on record for the first time by resorting to Section 311 of Cr.P.C (Section 348 of B.N.S.S). It is further submitted that the witnesses and informant did

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2 52.CR.WP-632-2024.doc

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not disclose the CCTV footage or compact disc. Hence, said material is extraneous. It is submitted that respondent and the informants are protracting the proceedings. Impugned order is perverse and unsustainable.

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Per contra learned APP submits that recalling of informant is not for bringing any new material on record. It has already been deposed by PW-1/informant about the CCTV footage and compact disc. The material which is sought to be proved by recalling is relevant and necessary to decide the controversy. It is further submitted that petitioner was not alert in raising objection when compact disc were produced and marked as Article ‘A’ and ‘B’. It is further submitted that impugned order is guarded one and care has been taken to supply the copy of the compact disc to the petitioner also. Hence, it can not be faulted.

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The offence pertains to ruckus between the neighbours. First Information Report was lodged on 23.01.2018 at the instance of Sanjay Bhaskar Kshemkalyani. Thereafter, investigation was conducted for more than nine months. Charge-sheet was filed on 27.10.2018. In the deposition of PW-1/informant it is mentioned that there was CCTV footage of the incident in question captured by camera installed by the informant and compact disc is produced on record. It does not reveal from record that there was panchnama conducted for recovery. CCTV footage through compact disc during the course of investigation. It is evident that CCTV footage or the

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3 52.CR.WP-632-2024.doc

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compact disc are not the part of charge-sheet.

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It is not the case of the respondent that investigating officer resorted to Section 173 (8) (Section 193 of B.N.S.S) for further investigation and in pursuance of that some material was collected which is sought to be proved by submitting application Exhibit-47. Under these circumstances, I am of the considered view that what is sought to be proved by making application Exhibit-47 is extraneous.

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Although there are powers under Section 311 of Cr.P.C (Section 348 of B.N.S.S) to be exercised at any stage and time, those are not unfittered. Unlike civil proceedings, it is not permissible in a prosecution to bring on record any new material. Impugned order fails to take into account this aspect of the matter and therefore has resulted into grave error of jurisdiction. Learned counsel for the petitioner is right in contending that for ten months the investigation was going on and no endeavour was made by the informant or witnesses who are educated persons to request the investigating officer to collect CCTV footage or the compact disc. In all four witnesses were examined by the time but except informant, nobody disclosed CCTV footage or the compact disc is a factor which weigh in favour of the petitioner.

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When compact discs were produced, those were marked as Article A and B and a certificate under section 65B of Evidence Act was also produced on record. Just because petitioner did not raise

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4 52.CR.WP-632-2024.doc

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objection to the same, would not validate the probative value. Compact discs need to be proved in accordance with law. Their production alongwith some certificate would not be construed to be proof. Whether the material in question is collected by following due procedure of law is also relevant factor which is overlooked by Learned Judge.

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I find that impugned order is unsustainable and there is error of jurisdiction.

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Writ Petition is allowed in terms of prayer clause (B).

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[ SHAILESH P. BRAHME, J.]

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vsj..

Piyush S/O Vinod Marathe v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Piyush S/O Vinod Marathe v. the State of Maharashtra

Case brief

What is this about?

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What the court decided

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