# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
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THE HONOURABLE MR.JUSTICE K. BABU
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MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945
CRL.MC NO. 2272 OF 2023
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AGAINST THE ORDER 01.03.2023 IN CRL MP 15/2023 IN SC 1232/2021
FAST TRACK COURT, PERINTHALMANA
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## **`PETITIONER/PETITIONER/ACCUSED:`**
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XXX XXX XXXX
XXX XXX XXXX
BY ADV
SRI.P.T.SHEEJISH
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## **`RESPONDENT/RESPONDENT/STATE:`**
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STATE OF KERALA,
REPRESENTED PUBLIC PROCECUTOR,
HIGH COURT OF KERALA, KOCHIN,
PIN – 682031
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BY ADV.
SMT. PUSHPALATHA M K,PP
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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
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## **`22.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`**
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Crl.M.C.No.2272 of 2023
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## **K.BABU, J.**
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Crl.M.C.No. 2272 of 2023
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Dated this the 22[nd ] day of May, 2023
## **O R D E R**
The prayers in this Crl.M.C. are as follows:
(i) To call for the records pursuant to Annexure A5 and to set aside the same, by passing an order to send the mobile phone for the further Cuber forensic analysis at Central Forensic Science Laboratory Hyderabad, in S.C.No.1232/2021 at Fast Track Court, Perinathalmana (Additional District Sessions Court), in the interest of justice.
(ii) To pass such other orders as this Hon'ble Court may deem fit and proper, to secure the ends of justice.”
2. The petitioner is the sole accused in S.C.No.1232/2021 on the file of the Fast Track Court, Perinathalmana. He faces charges under Sections 376(2)(f), 376(2)(i), 376(2)(n), 376(3) & 506 of IPC and Sections 5(I)(m) (n) r/w Section 6(1), Section 11(v) r/w Section 12 of the POCSO Act and Section 75 of the Juvenile Justice Act.
3. The prosecution case is that the petitioner who is the elder brother of the defacto complainant committed sexual assault on the defacto complainant between 2020 and
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2021.
4. The Court below is proceeding with the trial. After examination of the defence witness (DW1), the petitioner filed an application for summoning the mobile phone used by his mother to prove that it contained photographs showing the relationship between PW1 and one Favas who was examined as PW8. The said mobile phone was produced before the Court. The petitioner filed an application to send the mobile phone to the Regional Forensic Science Laboratory, Thrissur for retrieving the photos and whatsapp chats in the gallery of the said mobile phone. As per report dated 27.12.2022, the Scientific Officer, Regional Forensic Science Laboratory stated that whatsapp chats and Whatsapp status between the survivor and the said Favas could not be retrieved from the phone memory. Thereafter, on the request of the petitioner in CMP 8/2023, a direction was issued to the Regional Forensic Science Laboratory to retrieve the data from the phone memory of the said mobile phone. As per report dated 02.02.2023, the Regional Forensic
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Crl.M.C.No.2272 of 2023
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Science Laboratory retrieved the data from the phone memory and enclosed the same in a folder and in a CD appended to the said report. Thereafter, the petitioner filed an application to send the said mobile phone for examination by the Central Forensic Science Laboratory, Hyderabad for the same purpose.
5. After hearing both sides, the Trial Court dismissed the petition holding that the attempt of the petitioner is to delay the trial. The said order is under challenge in this Crl.M.C.
6. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.
7. The learned counsel for the petitioner submitted that in the analysis done by the Regional Forensic Science Laboratory, the results of which are contained in the report dated 02.02.2023, the Whatsapp chats and the Whatsapp status between the survivor and the said Favas could not be retrieved and for that purpose the mobile phone is to be sent to the Central Forensic Science Laboratory.
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8. _Per contra_ , the learned Public Prosecutor contended that the Regional Forensic Science Laboratory retrieved the entire data from the phone memory and the same was enclosed in a folder, in a CD appended to the report dated 02.02.2023. The learned Public Prosecutor submitted that there is no requirement for sending the mobile phone for further examination to the Central Forensic Science Laboratory, Hydrebad. The learned Public Prosecutor also submitted that the attempt of the petitioner is only to prolong the trial of the matter. The result of the examination as per the report dated 02.02.2023 is extracted below:
“Picture files were retrieved from the phone memory of the questioned mobile phone marked Q1. Soft copy of the retrieved Phone details and Picture files is enclosed in a folder named ‘Retrieved picture files from Q1’ in Annexure-1 CD.”
9. The impugned order would show that the Regional Forensic Science Laboratory retrieved the data from the phone memory and enclosed in a folder, in a CD appended to the report and on the application of the learned counsel for the petitioner permission was granted to verify the contents of the CD. It is evident from the report dated 02.02.2023 that
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the mobile phone sent for examination did not contain any Whatsapp chats or status between PW1 and PW8. There is nothing to show that the expert in the Forensic Science Laboratory omitted to retrieve any images or data from the mobile phone subjected to examination.
10. The learned counsel for the petitioner, relying on Section 233 (3) of the Cr.P.C., submitted that the petitioner has valuable right to adduce evidence in support of his defence. Section 233 (3) of Cr.P.C.reads thus:
_“_ **233. Entering upon defence.** xxx xxx xxx xxx xxx xxx (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. _”_
11. It is trite that the Criminal Courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound in terms of Section 233(3) Cr.P.C. to refuse such request if it appears that they are made inorder to vex the proceedings or delay the same **[Vide : Rajesh Talwar and**
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**Another v. Central Bureau of Investigation and Another (2014) 1 SCC 628]**
In the present case, the attempt of the petitioner is to vex the proceedings and to delay the same thereby defeating the ends of justice. This Court finds no irregularity or illegality in the impugned order. Hence, the Crl.M.C. stands dismissed.
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Sd/-
K.BABU
JUDGE
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VPK
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## **`APPENDIX OF CRL.MC 2272/2023`**
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PETITIONER ANNEXURES
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- `Annexure A1 THE TRUE COPY FIR IN CRIME NO.299/2021 KOLATHUR POLICE STATION, MALAPPURAM DISTRICT`
- `Annexure A2 THE TRUE COPY OF THE FINAL REPORT ALONG WITH THE MEMORANDUM OF EVIDENCE IN CRIME NO.299/2021 OF KOLATHUR POLICE STATION, MALAPPURAM DISTRICT`
- `Annexure A3 THE TRUE COPY OF FORENSIC ANALYSIS REPORT DATED 02.02.2023 BY REGIONAL FORENSIC SCIENCE LABORATORY AT THRISSUR`
- `Annexure A4 THE TRUE COPY OF THE CRL MP NIO,15/2023 FILED BY PETITIONER DATED 13.01.2023 BEFORE FAST TRACK COURT, PERINTHALMANNA (ADDITIONAL DISTRICT AND SESSIONS COURT)`
- `Annexure A5 THE CERTIFIED COPY OF ORDER IN CRL MP 15/2023 DATED 01.03.2023 OF FAST TRACK COURT, PERINTHALMANNA (ADDITIONAL DISTRICT AND SESSIONS COURT)`
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Annexure A6THE TRUE COPY OF THE CASE PROCEEDINGS OF
SC 1232/2021 OF FAST TRACK COURT,
PERINTHALMANNA (ADDITIONAL DISTRICT
SESSIONS COURT) AS UPDATED IN THE
WEBSITE OF ECOURTS
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