1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 270 OF 2010 1. Sachin Dnyaneshwar Mule, Age 31 years, Occupation Business, Resident of Bhavani Peth, No.2, Gangaram Plot, Bhusawal, District Jalgaon. 2. Dnyaneshwar Shankar Mule, Age 57 years, Occupation Business, Resident of as above. 3. Prashant Dnyaneshwar Mule, Age 29 years, Occupation Business, Resident of as above. 4. Mirabai w.o Dnyaneshwar Mule, Age 52 years, Occupation Housewife, Resident of as above. Petitioners V E R S U S 1. The State of Maharashtra Respondent Mr. J.R. Shah, Advocate for the petitioners Mr. D.R. Korde, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 6th April, 2010 PER COURT 1. Heard. 2. Apparently the impugned order is erroneous. It is prosecution that the witnesses recorded dying declarations of the deceased. The copies of dying declarations are produced before the Court. But the charge-sheet does not mention that while one of the dying declarations was recorded a Video Photographer was called to record the same on Film. Admittedly, the statement of the Video 2 Photographer was not recorded during the investigation. The police neither seized the Compact Disc on which the dying declaration is copied. At belated stage, at the time when the trial was about to begin, the Public Prosecutor moved an application seeking permission of the Court to produce the Compact Disc, on which the dying declaration is copied and to allow him to examine the Video Photographer in support of their case and to prove the contents of the Compact Disc. The learned Additional Sessions Judged allowed this application on the basis of the ratio of the Judgment of the Supreme Court in the case of Central Bureau of Investigation V. R.S. Pai and another (AIR 2002 Supreme Court 1644). He has even quoted the relevant portion of the Judgment of the Supreme Court in his order. However, despite of reliance of this Judgment, the order passed by the learned Additional Sessions Judge is erroneous for following reasons. 3. The Investigation Officer, it seems, learnt about existence of the Compact Disc, and the fact that, certain Video Photographer was also present when the dying declaration was recorded, and that, such Video Photographer could be an important prosecution witness and the dying declaration filmed can also be brought before the Court to prove the prosecution case. Apparently, this is an additional piece of evidence, and until the Investigation Officer investigates into the aspect of this case, as per the provisions of Section 173 (8) of Cr.P.C. 3 and until he files an additional report under Section 173 of Cr.P.C. before the Court, the Public Prosecutor will not be able to make the application on which the impugned order was passed. So, the impugned order deserves to be set aside. But the prosecution certainly deserves an opportunity to submit an additional report under sub-section 8 of Section 173 of Cr.P.C. in respect of this, after recording statements of the Video Photographer etc. a. Writ Petition is allowed. b. The impugned order is set aside. c. The prosecution and Investigation Officer are given liberty to take further steps as per sub-section 8 of Section 173 of Code of Criminal Procedure, indicated above. (A.V. NIRGUDE, J.) srm/criwp/270/10