Manish Pitale JUDGMENT
Manish Pitale, J.
1. By this writ petition, the petitioners (original accused) have challenged order dated 28.03.2018 passed by the Court of Judicial Magistrate First Class, Pulgaon (trial Court), whereby an application moved by the investigating officer for sending muddemal property consisting of mobile phones and memory card for forensic examination, has been allowed. The principal grievance of the petitioners is that the said property was seized on 14.09.2012 when the petitioners were arrested and that after about more than five years, such an application for sending the property for forensic examination could not have been entertained by the trial Court, particularly when one panch witness had been already examined and part of the examination-in-chief of the complainant was already over.
2. The background facts, leading up to fling of the said application by the investigating officer before the trial Court are that on 14.09.2012 a first information report (FIR) was registered in Police Station, Pulgaon, district Wardha, against the petitioners for having committed offences under Section 67-A of the Information Technology Act, 2005 and Sections 509 and 292 of the Indian Penal Code (IPC). The grievance of the complainant was that the accused had circulated video clips of the complainant and thereby they had committed the said offences. The petitioners were arrested on the same day i.e. 14.09.2012 and the investigating officer seized properties, including the aforesaid muddemal property consisting of mobile phones and memory card. The said property remained in the custody of the Court and no further steps were taken in that regard.
3. On 15.02.2017, an application was moved by the A.P.P. before the trial Court for obtaining opinion of examiner of electronic evidence pertaining to the said mobile phones and memory card. But, later the said application was withdrawn.
4. Thereafter on 09.01.2018 an application was moved by the investigating officer before the trial Court seeking permission to send the said mobile phones and memory card for forensic examination. This application was marked as Exh. 85. It was stated in the said application that due to inadvertence, although the said mobile phones and memory card were seized, but they could not be sent for forensic examination to the laboratory.
5. This application was opposed on behalf of the petitioners on the ground that prejudice would be caused to them if the same was allowed and that when evidence of a panch witness was already recorded and part of examination-in-chief of the complainant was over, it was too late in the day for the investigating officer to move the said application. It was contended that lacunae were sought to be filled in by the investigating officer by moving the said application.
6. By the impugned order dated 28.03.2018, the trial Court found that such an application could be moved by the investigating officer under Section 173(8) of the Cr.P.C. to send the said mobile phones and memory card for forensic examination to the laboratory. The trial Court identified Section 173(8) of the Cr.P.C. as the relevant provision for exercise of such powers. On this basis, the trial Court allowed the application.
7. Mr. D.R. Bhoyar, learned counsel appearing for the petitioners, submitted that the trial Court was not justified in allowing the said application at such belated stage and that it would amount to permitting the prosecution to fill in lacunae and further that grave prejudice was caused to the petitioners when the application filed by the in........