MEENANATH VASANT BODAKEversusUNION OF INDIA AND ANR

                                           940 APL-1789-2026.DOC




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CRIMINAL APPELLATE JURISDICTION
          CRIMINAL APPLICATION NO. 1789 OF 2026
Meenanath Vasant Bodake                                …Applicant
               Vs.
1. Union of India                                      …Respondents
2. The State of Maharashtra


Mr. Anil G. Lalla a/w. Rushil Alag, Yash Pulekar and Dewang
Rawal, for the Applicant.
Mr. Rushikesh Munde, SPP a/w. Shatabdi Netke and Pranit Kole,
for Respondent No.1-D.R.I.
Mr. S.S. Ghag, APP a/w. Mr. Shahaji Shinde, ‘B’ Panel Counsel, for
the Respondent No.2-State.


                      CORAM:       MADHAV J. JAMDAR, J.
                      DATE :       30th SEPTEMBER, 2026
P. C.:

1.       Heard Mr. Lalla, learned counsel appearing for the

Applicant, Mr. Munde, learned Special Public Prosecutor

appearing for Respondent No.1 and Mr. Ghag, learned APP

appearing for the State.



2.       By this application filed under Section 528 of

Bharatiya Nyaya Suraksha Sanhita, 2023, the Applicant is

challenging legality and validity of order dated 9 th

September 2026 passed by the learned Additional Sessions




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Judge, Panvel, Dist. Raigad below Exhibit 281 in NDPS

Special Case No. 14 of 2021. By the said application filed

under Section 311 of the Code of Criminal Procedure,

1973 (“Cr.P.C.”), the following prayer is made in paragraph

No. 11 (page no. 135), which reads as under :


      “11. That, in the present case prosecution has

      not closed his evidence since under section 311

      of CRPC corresponding to 348 of BNSS Act,

      2023 prosecution by making an application can

      seek permission to re-examine the mobile to

      extract the data through arranging the forensic

      of the said mobile along with the certificate of

      65B of the evidence act, 1872. The court is

      vested with a broad and wholesome power, in

      terms of section 311 of the CRPC, to summons

      and examine or recall and re-examine any

      material witness at any stage and the closing of

      prosecution evidence is not an absolute bar.”




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3.     The said application has been allowed by the

impugned order dated 9th September 2026. The Operative

part of the said order (page no. 146) reads as under :



                           “ORDER



         1. Application (Exh.281) is allowed.


         2. The System Administrator, Computer

         Branch of District Court, Panvel, to copy

         contents of Vivo 1901 mobile phone MO

         No.24 in pen-drive provided by the DRI in

         the presence of both sides Advocates.

         3. The activity of copying the data be

         carried out during court hours. Once the

         said activity is done, the said mobile phone

         be handed over to muddemal clerk.

         4. Pen-drive containing copied data be

         submitted in the Court through System

         Administrator.

         5. The System Administrator to submit a

         short report in this regard.”


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4.     It is the main contention of Mr. Anil Lalla, learned

counsel appearing for the Applicant that power under

Section 311 of Cr.P.C. cannot be utilized to cure any defect

in the evidence of the prosecution. It is submitted that in

fact prayer sought in the application which is filed under

Section 311 and the order which is passed are outside the

scope of Section 311.    It is submitted that PW-16-Vikas

Yadav has deposed for the prosecution and what is now

sought to be retrieved or produced is already on record in

the form of evidence of PW-16 and the material which has

been produced in his evidence. It is, therefore, submitted

that the application itself is not maintainable, and in any

case, the impugned order should not have been passed.

Learned counsel, further submitted that in the application

there is no foundational facts necessary for the purpose of

filing application under Section 311. He submitted that in

fact the application should have been filed under Section

91 of Cr.P.C. and there also reasons are required to be

given. Learned counsel relied on the decision of the

Supreme Court in Natasha Singh(Supra) vs. CBI (State)1

1 (2013) 5 SCC 741

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5.     On the other hand, Mr. Munde, learned SPP

appearing for the Respondents pointed out the reasons

which are set out in the said application which has been

filed under Section 311 of Cr.P.C. and more particularly,

paragraph Nos. 7 to 11. He further pointed out paragraph

Nos. 6(d) and 6(e) of the affidavit in reply dated 22 nd

September 2026 of Daya Shankar Singh, Assistant Director

of the Revenue Intelligence, Mumbai Zone.



6.     The Applicant is original Accused No.1 in NDPS

Special Case 14/2021 and is facing charges for alleged

commission of offences punishable under Sections 8(c),

21(c), 23, 25, 27-A, 29 of NDPS Act, along with 3 other co-

Accused in respect of a consignment allegedly imported

into India in which Heroin was concealed.



7.     Perusal of the record shows that PW-16-Vikas Yadav,

Enforcement Officer was examined by the prosecution and

he has stated in paragraph Nos. 2 to 4 in his deposition as

under :-




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      “02      Four mobile phone handsets were given

      to me by the Intelligence Officer Himanshu

      Kushwah for data extraction. Those mobiles

      were duly sealed and seal was intact. Thereafter,

      seal was opened in the presence of panchas. Out

      of the said four mobiles, two mobile phones

      Samsung Model and Reliance Jio Model belong

      to accused No.5 Mahendra Nigam and one

      Samsung mobile belongs to accused No.3

      Sarvesh Bhatiya and one mobile of Vivo Model

      belongs to accused No.4- Nauman. Cyber

      Forensic     Engineer        Maheshkumar             Gupta

      connected      the   said    mobiles      to   the    data

      extraction machine and data was extracted.

      Accordingly,     four    extraction       reports    were

      generated.     The      panchas     put    their     dated

      signatures on extraction reports. The workable

      copy of extracted data was copied into Seagate

      make hard-disk. Thereafter all the four mobile

      phones were again packed into four independent

      envelopes      and   duly    sealed.      On   the    said

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      envelopes myself and panchas put signatures

      and      date.   The   extraction    proceeding    was

      completed in the presence of panchas and me.

      Accordingly, I prepared detail panchanama in

      the presence of panch witnesses. Now, I am

      shown the said panchanama dated 10/08/2020.

      Panchas put their signatures on each pages of

      panchanama. I also put my signature on last

      page. Now, I am shown the said panchanama.

      The contents therein true and panchanama

      marked as Exh.P. 277/PW16.


      03       After panchanama, I handed over all the

      seized mobile phones and workable copy of

      retrieved data to Intelligence Officer Himanshu

      Kushwah.

      04. (Now one sealed envelope is opened in the

      presence of witness, Advocates for accused

      persons and Spl.P.P.). Inside the said envelope

      one Vivo mobile of accused No.4 is there. The

      said mobile phone is marked as M.O.No. 24.



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      Examination-in-Chief is over.


8.     In view of the above Examination-in-chief of P.W. 16-

Vikas Yadav, it is significant to note his cross-examination.

In the cross-examination in paragraph No.6, he has stated

as under :


      06.      It is true to say that Himanshu Kushwah

      did not provide me report of mobiles seized

      from accused Nos. 3 to 5, but he orally

      intimated     to   me.   Maheshkumar            Gupta,

      Forensic Cyber Engineer was private person,

      acted in private capacity. It is true to say that

      we could have sent the said mobiles to CRCL at

      Delhi, but due to shortage of time we could not

      sent. I have not prepared any record regarding

      shortage of time. It is not true to say that

      Exh.P.277/PW16 is false. It is not true to say

      that I am deposing false.

                                      (Emphasis Added)




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9.     In this background of the matter, application under

Section 311 of the Cr.P.C. has been filed bearing Exhibit

281 (page no. 133 – 135) inter alia raising following

contentions in paragraph Nos. 7, 8 and 11, which read as

under :-



      7. That Shri Mahesh Kumar Gupta the forensic

      analysis retrieved the workable image of data

      stored in Mo. No. 24 and other mobile phones

      and saved to one Seagate external hard disk

      drive provided by the DRI, MZU, Mumbai. Shri

      Mahesh Kumar Gupta exported the data

      retrieved from the four mobile phones to the

      aforesaid external hard disk drive. After

      completion    cyber   forensic     proceedings,

      extraction reports in respect of said mobile

      phones was generated by Shri Mahesh Kumar

      Gupta. The said report is annexed along with

      panchnama dated 10.08.2020.




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      8. That it is respectfully clarified that the

      aforesaid external hard disk drive was only

      working copy/storage medium used during the

      forensic process. It was not seized as an

      independent    evidentiary       article,   was   not

      sealed, and was not treated or recorded as

      muddemal/evidence in the present case. The

      evidentiary mobile phone, namely the VIVO

      1901, is the original source device relevant for

      the present application.


      11. That, in the present case prosecution has

      not closed his evidence since under section 311

      of CR.P.C. corresponding to 348 of BNSS Act,

      2023 prosecution by making an application can

      seek permission to re-examine the mobile to

      extract the data through arranging the forensic

      of the said mobile along with the certificate of

      65B of the evidence act, 1872. The court is

      vested with a broad and wholesome power, in

      terms of section 311 of the CRPC, to summons



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      and examine or recall and re-examine any

      material witness at any stage and the closing of

      prosecution evidence is not an absolute bar.


                                      (Emphasis added)


10.    In this context, it is also relevant to note paragraph

Nos. 6(d) and 6(e) of the affidavit in reply dated 22 nd

September 2026 filed in this application which read as

under :


      6(d) The Respondent No. 1 submits that at the

      relevant time, it was practice for the forensic lab

      to provide a working copy of the extracted data to

      the Investigating Officers for the purpose of

      analysis and investigation. The original device,

      which is the primary source of the data, was

      always in the safe custody of the Learned Trial

      Court and remains so even today. The working

      copy was merely a storage medium used during

      the forensic process and was never intended to

      substitute the original device as evidence.



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      6(e)      During the trial, the prosecution examined

      PW-16 Vikas Yadav on 14.08.2026, who had

      drawn the forensic panchnama dated 10.08.2020.

      The mobile phone of deceased Accused No. 4 was

      de-sealed before the Learned Trial Court during

      his examination, and the same was marked as MO

      No.      24/PW-16.   The   Applicant,      through   his

      counsel, raised questions regarding the data

      contained in the original copy of extracted data. It

      is in this context that the prosecution moved an

      application under Section 311 of Cr.P.C. seeking

      permission to extract data from the original device

      (M No. 24), which is the primary evidence, under

      the monitoring of Learned Trial Court.


                                           (Emphasis added)


11.    Thus, the contentions raised in the application filed

under Section 311 of Cr.PC. is that external hard disc was

only a working copy/storage device used during the

forensic process.      It was not seized as an independent

article, was not created or recorded as muddemal article in


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the present case. The evidentiary mobile phone namely

vivo 1901 is the original source device and therefore,

permission is required to extract the data from the original

device i.e mobile, which is the primary evidence through

arranging the forensic expert by producing the certificate

of 65b of the evidence act, 1872.



12.    In paragraph Nos. 6(d) and 6(e) of the affidavit in

reply, it is stated that the original device which is the

primary source of the data was and is always in the safe

custody of the learned Trial Court and the working copy,

which is referred in the evidence of PW-16-Vikas Yadav was

merely a storage medium used during the forensic process

and was never intended to substitute the original device as

evidence. It is further stated in the said affidavit that as

certain questions have been raised regarding the data

contained in the original copy of extracted data, it is in

that context, the application under Section 311 of Cr.P.C.

seeking permission to extract data from the original device

has been filed.




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13.    Thus, in this background of the matter, the

contentions raised by the learned counsel appearing for the

Applicant are required to be examined.

14.    The first contention raised by learned counsel for the

Applicant is that the application could not have been filed

under Section 311 of Cr.P.C. and order passed is also

outside the scope of Section 311 of Cr.P.C.          However,

learned counsel appearing for the Applicant fairly admits

that such type of application could have been filed under

Section 91 of Cr.P.C. It is further submitted that the

application is filed for the purpose of curing the defects

and when evidence which is sought to be produced is

already on record in view of the evidence of P.W.-16.

15.      In view of the above contentions, it is relevant to

note the decision of the Supreme Court in the case of

Zahira Habibulla H. Sheikh v. State of Gujarat 2. The

Supreme Court in the said case has examined the role of

the Court while dealing with applications under Section

311 of the Cr.P.C. The relevant discussion is as under :-



2      (2004) SCC 158

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      “43.The Courts have to take a participatory

      role in a trial. They are not expected to be tape

      recorders to record whatever is being stated by

      the witnesses. Section 311 of the Code and

      Section 165 of the Evidence Act confer vast

      and wide powers on Presiding Officers of Court

      to elicit all necessary materials by playing an

      active role in the evidence collecting process.

      They have to monitor the proceedings in aid of

      justice in a manner that something, which is

      not relevant, is not unnecessarily brought into

      record. Even if the prosecutor is remiss in some

      ways, it can control the proceedings effectively

      so that ultimate objective i.e. truth is arrived

      at. This becomes more necessary where the

      Court    has   reasons   to   believe     that   the

      prosecuting agency or the prosecutor is not

      acting in the requisite manner. The Court

      cannot afford to be wishfully or pretend to be

      blissfully ignorant or oblivious to such serious

      pitfalls or dereliction of duty on the part of the

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      prosecuting agency. The prosecutor who does

      not act fairly and acts more like a counsel for

      the defence is a liability to the fair judicial

      system, and Courts could not also play into the

      hands of such prosecuting agency showing

      indifference or adopting an attitude of total

      aloofness.


      44.The power of the court under Section 165

      of the Evidence Act is in a way complementary

      to its power under Section 311 of the Code.

      The section consists of two parts i.e. : (i) giving

      a discretion to the court to examine the witness

      at any stage, and (ii) the mandatory portion

      which compels the court to examine a witness

      if his evidence appears to be essential to the

      just     decision   of   the   court.   Though    the

      discretion given to the court is very wide, the

      very width requires a corresponding caution.

      InMohanlal v.Union of India [1991 Supp (1)

      SCC 271 : 1991 SCC (Cri) 595] this Court has



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      observed, while considering the scope and

      ambit of Section 311, that the very usage of the

      words such as, “any court”, “at any stage”, or

      “any enquiry or trial or other proceedings”,

      “any person” and “any such person” clearly

      spells out that the section has expressed in the

      widest-possible terms and do not limit the

      discretion of the court in any way. However, as

      noted above, the very width requires a

      corresponding caution that the discretionary

      powers should be invoked as the exigencies of

      justice require and exercised judicially with

      circumspection   and   consistently     with   the

      provisions of the Code. The second part of the

      section does not allow any discretion but

      obligates and binds the court to take necessary

      steps if the fresh evidence to be obtained is

      essential to the just decision of the case,

      “essential” to an active and alert mind and not

      to one which is bent to abandon or abdicate.

      Object of the section is to enable the court to

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      arrive at the truth irrespective of the fact that

      the prosecution or the defence has failed to

      produce some evidence which is necessary for

      a just and proper disposal of the case. The

      power is exercised and the evidence is

      examined neither to help the prosecution nor

      the defence, if the court feels that there is

      necessity to act in terms of Section 311 but

      only to subserve the cause of justice and public

      interest. It is done with an object of getting the

      evidence in aid of a just decision and to uphold

      the truth.”


                                    (Emphasis Added)


16.    Thus, what the Supreme Court has said that the

Courts have to take a participatory role in a trial. Section

311 of the Cr.P.C. and Section 165 of the Evidence Act

confer vast and wide powers on Presiding Officers of Court

to elicit all necessary materials by playing an active role in

the evidence collecting process. It has been observed that

ultimate objective is to bring on record the truth.


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17.    The above observations of the Supreme Court are

squarely applicable to the present case. Apart from Section

311 of Cr.P.C., there is adequate power in the Court to pass

the order which is impugned in the present application. It

is not even the contention of learned counsel appearing for

the Applicant that there is no power with the Court to pass

the impugned order.


18.    The contention raised that the application is filed for

the purpose of curing the defects is also without basis as

primary evidence is the mobile which is in the custody of

the court and by the impugned order data is directed to be

extracted. As noted earlier as per the settled legal position

the aim in any trial is to arrive at truth.


19.    As far as the contention raised that the foundational

facts are not set out in the application, the relevant

paragraphs of the application are already extracted

hereinabove which clearly shows that the foundational

aspects for exercising power under Section 311 of Cr.P.C

are adequately set out. Apart from that, affidavit in reply

has also been filed and the relevant contentions are


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already extracted hereinabove. Thus, there is no substance

in the contention raised that foundational facts for

exercising jurisdiction under Section 311 of Cr.P.C are not

set out.


20.    Mr. Lalla, learned    counsel of the Applicant has

relied on the decision of Supreme Court in the case of

Natasha Singh (Supra). The following paragraphs of said

decision are relevant:-


      15.The scope and object of the provision is to

      enable the court to determine the truth and to

      render a just decision after discovering all relevant

      facts and obtaining proper proof of such facts, to

      arrive at a just decision of the case. Power must be

      exercised judiciously and not capriciously or

      arbitrarily, as any improper or capricious exercise

      of such power may lead to undesirable results. An

      application under Section 311 CrPC must not be

      allowed only to fill up a lacuna in the case of the

      prosecution, or of the defence, or to the

      disadvantage of the accused, or to cause serious


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      prejudice to the defence of the accused, or to give

      an unfair advantage to the opposite party . Further,

      the additional evidence must not be received as a

      disguise for retrial, or to change the nature of the

      case against either of the parties. Such a power

      must be exercised, provided that the evidence that

      is likely to be tendered by a witness, is germane to

      the issue involved. An opportunity of rebuttal

      however, must be given to the other party. The

      power conferred under Section 311 CrPC must

      therefore, be invoked by the court only in order to

      meet the ends of justice, for strong and valid

      reasons, and the same must be exercised with

      great caution and circumspection. The very use of

      words such as “any court”, “at any stage”, or “or

      any enquiry, trial or other proceedings”, “any

      person” and “any such person” clearly spells out

      that the provisions of this section have been

      expressed in the widest possible terms, and do not

      limit the discretion of the court in any way. There

      is thus no escape if the fresh evidence to be

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      obtained is essential to the just decision of the

      case. The determinative factor should therefore

      be, whether the summoning/recalling of the said

      witness is in fact, essential to the just decision of

      the case.


      16.Fair trial is the main object of criminal

      procedure, and it is the duty of the court to

      ensure that such fairness is not hampered or

      threatened in any manner. Fair trial entails the

      interests of the accused, the victim and of the

      society, and therefore, fair trial includes the

      grant of fair and proper opportunities to the

      person concerned, and the same must be

      ensured as this is a constitutional, as well as a

      human right.


21.    Even if the factual position in the present case

is examined on the touchstone of above parameters

then also it is clear that impugned order is correctly

passed.




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22.    Although,   learned   counsel     for    the   Applicant

submitted that the application is premature, however, the

application is necessary in view of the cross-examination

of P.W.-16. In any case, there is no prejudice whatsoever to

the present Applicant as the cellphone which is the primary

evidence is in the custody of the learned Trial Court and

data will be extracted from the same.



23.    Thus,in the facts and circumstances of the case and

for the reasons stated hereinabove, no interference in the

impugned order is warranted.



24.    Accordingly, the Criminal Application is dismissed.




                                   [MADHAV J. JAMDAR, J.]




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