Madhya Pradesh High Court
Abdul Rahuf vs The State Of Madhya Pradesh on 8 November, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
M.Cr.C. No.50824/2021 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
M.Cr.C. No.50824/2021
Abdul Rahuf v/s The State of Madhya Pradesh
Indore, dated 08.11.2021
Shri Ashish Gupta, learned counsel for the petitioner.
Shri Aditya Garg, learned Government Advocate for the
respondent / State.
Shri Ashish Jaiswal, learned counsel for the objector. With the consent, finally heard.
This petitioner filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) assails the order dated 15.09.2021, whereby the Court below has allowed the application of prosecution dated 06.08.2021 and permitted it to show that existing video footage by taking assistance of an expert.
In short, the case of the petitioner is that the petitioner is facing a trial for committing offence under Section 302 of the IPC arising out of Crime No.18/2017. During the course of examination of Raj Kumar (P.W-6), a pen drive was seen by the Court below on its own laptop. A note was appended to the deposition of P.W-6 to show the same. After almost two years, the application dated 06.08.2021 (Annexure-A/2) was filed seeking permission to take assistance of an expert to retrieve the footage from the said pen drive.
Learned counsel for the applicant submits that there is no justification for entertaining the application dated 06.08.2021 after almost two years from the date of deposition of P.W-6. During the course of hearing, he fairly submitted that petitioner is not challenging the competence, jurisdiction and power of the Court M.Cr.C. No.50824/2021 2 below in issuing such direction. The petitioner's attack is confined on the aspect of propriety in passing the impugned order.
Shri Aditya Garg, learned Government Advocate submits that because of COVID - 19 restriction, the application like Annexure-A/6 could not be filed with quite promptitude after deposition of P.W-6. The Court below has not committed any error in passing the impugned order is common ground of Government counsel and objector.
In rejoinder submission, learned counsel for the applicant placed reliance on Section 79-A of the Information Technology Act, 2000.
Parties confined their arguments to the extent indicated above.
I have heard the parties at length and perused the record. Section 45-A of the Indian Evidence Act, 1872 reads as under:-
"45A. Opinion of Examiner of Electronic Evidence.
--When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact."
Section 79-A of the Information Technology Act, 2000 referred in aforesaid section reads as under:-
"79A. Central Government to notify Examiner of Electronic Evidence. -The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence."M.Cr.C. No.50824/2021 3
As noticed, the petitioner is not challenging power / competence / jurisdiction in issuing the direction to produce the expert. The challenge is limited to the aspect of propriety. No doubt that there is a delay of 2 years in filing the application dated 06.08.2021. However, during this period, the proceedings of Court hampered seriously because of pandemic related problems. The Court under Section 49 of the Indian Evidence Act is competent to form an opinion by taking assistance of examiner of electronic evidence. The endeavor of Court below is to separate the wheat from the chaff and dig out the truth. If with the assistance of an expert and by following the mandate of Evidence Act, 1872 and Information Technology Act, 2000 the Court directs for providing such assistance, it can neither be said to be without jurisdiction or suffering from any procedural impropriety. A famous adage is 'sunlight is the best disinfectant'. It cannot be forgotten that ordinarily, Courts do not have expertise in IT matters and for this reason, the legislative scheme is ingrained in the shape of Section 45-A of the Evidence Act and Section 79-A of the IT Act which enables the Courts to take assistance of an expert.
It is made clear that by taking assistance of an expert, the Court below will not take into account any new electronic evidence or material. Indeed, on the basis of an existing pen drive (Article-A/1), it will take assistance of an expert who may be able to retrieve an electronic evidence already available in the said pen drive. If this exercise is undertaken, in my view, no prejudice will be caused to the petitioner.
The Court below has taken a plausible view which does M.Cr.C. No.50824/2021 4 not warrant interference by this Court and I am unable to hold that any injustice is caused to the petitioner which needs to be remedied in this application.
Resultantly, M.Cr.C. fails and is hereby dismissed.
(SUJOY PAUL) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2021.11.09 17:55:53 +05'30'