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While dismissing an appeal filed by an alleged Indian Mujahideen (IM) member, seeking directions to the prosecution that it will not be relying on a CD as part of evidence that is currently untraceable, the Bombay High Court has recently said that the trial court must follow guidelines to ensure no prejudice is caused to the accused.
Ajaj Saeed Shaikh, booked for allegedly sending an email about a terror attack, has been behind bars since 2015.
Last October, the prosecution had told the trial court that a CD could not be traced and it should be allowed to rely on it whenever it is traced. The trial court had said that there is no provision in law to issue directions to the prosecution to make a statement that it will not be relying on a CD part of the electronic evidence.
In the appeal filed before the HC, through lawyers Hasnain Kazi and Shraddha Vavhal, Shaikh said that if the CD was not provided and the prosecution was allowed to rely on it at a later stage, it would cause prejudice and be a violation of his fundamental right to have a fair trial.
Justice Sunil Shukre and Justice Abhay Waghwase dismissed Shaikh’s appeal stating that the trial court would have to consider the stage at which the CD is produced and relied upon by the prosecution.
“This is crucial from the view point of the defence of the accused like the appellant (Shaikh). If the contents of the CD are such as to cause prejudice to the defence of the applicant, it may not be appropriate for the trial court to allow production of such CD at a later stage. All depends upon the stage of the trial at which the CD in question would be produced before the trial court and would be sought to be relied upon by the prosecution,” the court said.
It added, “…sometimes, the trial may reach a stage where the accused may have opened his defence completely or may have taken particular defence and if the CD is produced later, may cause prejudice to the defence taken by him.”
The court said that the trial court “must thwart such an attempt on the part of the prosecution”. “These guidelines have been made by us with a view to provide guidelines to the trial court to deal with the situation which may arise in future on account of the prosecution producing the CD in question at an advanced stage of the trial,” it added.
The court said that at this stage, there was no prejudice being caused to the accused and dismissed the appeal.
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