Quashed

Om Prakash Jaiswal v. the State of Jharkhand

Jharkhand HC6 Oct 2021Cr.M.P./578/2021

Case brief

AI extract

What is this about?

The High Court quashed an order allowing the prosecution to examine a witness to produce a delayed Section 65-B certificate for electronic evidence. The court held that admitting a certificate issued two years after seizure prejudiced the accused, violating the requirement that such evidence be accompanied by a certificate at the time of production.

What did the court decide?

Impugned order permitting prosecution to examine Atul Sahu for a belated Section 65-B certificate is quashed; trial to proceed.

Om Prakash Jaiswal Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 578 of 2021

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Om Prakash Jaiswal, aged about 62 years, son of Banshilal Jaiswal, Resident of H. No. 25, Manifit Panjabi Line No. 1 and 2, P.O. and P.S.-Telco, Jamshedpur, District-East Singhbhum.

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Versus

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The State of Jharkhand.

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Jagbandhu Jaiswal, son of Late Sitaram Jaiswal, resident of H. No. 61/6, Nehru Nagar Bhilai, P.O. and P.S.-Bhilai, DistrictDurg, State-Chhattisgarh.

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...... … Opposite Parties -------- CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI -----For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate For the State : Mr. Suraj Verma, Spl.P.P. For the O.P. No. 2 : Mr. P.K. Deomani, Advocate. ------ C.A.V. on 22.09.2021 Pronounced on 06.10.2021.

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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Heard Mr. R.S. Mazumdar, learned senior counsel for the petitioner, Mr. Suraj Verma, learned Spl.P.P. for the State and Mr. P.K. Deomani, learned counsel appearing for the O.P. No. 2.

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This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

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This criminal miscellaneous petition has been filed for quashing of the order dated 15.02.2021, passed in Sessions Trial No. 245 of 2018, arising out of G.R. No. 735 of 2018 [Telco P.S. Case No. 41 of 2018] by the Court of learned Additional Sessions Judge-VII, East Singhbhum at Jamshedpur, whereby the petition dated 15.02.2020, filed on behalf of the prosecution, has been allowed and prosecution is permitted to examine Atul Sahu as a witness for compliance of provision under Section 65-B of the Evidence Act, now pending in the Court of learned Additional Sessions Judge-VII, East Singhbhum at Jamshedppur.

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The prosecution case in brief is that daughter of the informant was married with the son of the petitioner and after

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marriage, accused persons subjected her to cruelty and harassed her with a view to coerce her to meet demand of Rs. 5 laks. Furthermore it has been alleged that the petitioner on several occasions attempted to commit rape upon her.

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Mr. R.S. Mazumdar, learned senior counsel appearing for the petitioner submitted that after institution of the First Information Report, investigation started and after due investigation, charge-sheet has been submitted on 27.04.2018 against the present petitioner, who happens to be the father-in-law of the daughter of the informant, keeping investigation pending against other accused persons. He further submitted that in the charge-sheet, altogether seven persons have been made charge-sheet witnesses and said Atul Sahu has never been made witness in the charge-sheet.

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Learned senior counsel also submitted that upon submission of the charge-sheet, cognizance was taken for the said offences by the concerned Court and the case was committed to the Court of Sessions, as it was triable by the Court of Sessions. He submitted that thereafter charges have been framed against the present petitioner for the offences under Sections 498-A/34, 376(2)(f)/511 of the Indian Penal Code, vide order dated 18.02.2019. He further submitted that after framing of charge, all the charge-sheet witnesses have been examined by the prosecution and their evidences were duly recorded by the learned Trial Court. He also submitted that at the fag end of the trial, prosecution has filed a petition under Section 65-B of the Evidence Act on 18.01.2020 along with the certificate, issued by Atul Sahu and the petitioner has also filed rejoinder to the said petition, stating therein that certificate in question is not the part of investigation and it cannot be considered as evidence, in terms of Section 173(5) of the Cr.P.C. He further submitted that vide order dated 03.02.2020, learned A.P.P. has not pressed the petition dated 18.01.2020, which was duly recorded in the order-sheet. He submitted that prosecution has filed a petition under Section 231(1) of Cr.P.C. for recording evidence of Atul Sahu to prove the certificate of photographs and CD on 15.02.2020 and the petitioner filed the response to the said petition on 26.02.2020. Learned senior counsel has submitted that the learned Trial Court has

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allowed the petition, filed by the prosecution and permitted the prosecution to examine Atul Sahu as a witness, for compliance of the provision under Section 65-B of the Evidence Act, vide order dated 15.02.2021. Being aggrieved by this order, the petitioner has moved before this Court.

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Mr. Mazumdar, learned senior counsel has advanced his argument by way of submitting that the learned Court has failed to take into consideration that on 26.2.2020, the petitioner filed his rejoinder to the said petition dated 15.02.2020, filed by the prosecution is not maintainable. He further submitted that the Trial Court has failed to take into consideration the alleged certificate dated 15.02.2020, purported to have been issued under Section 65-B of the Evidence Act, is wholly inadmissible and cannot be proved by way of secondary evidence, in terms of Section 65-B of the Evidence Act. He further elaborated his argument by way of submitting that the Trial Court has failed to take into consideration that according to the prosecution case, which alleged on 11.03.2018 at 14.30 hours, C.D. and photographs were produced by the informant before Telco P.S., whereas the certificate sought to be proved by way of secondary evidence is issued on 15.02.2020, i.e. after nearly two years from the date of producing of the said C.D. and photographs, though the law is clear that the certificate under Section 65-B of the Evidence Act must be produced along with the documents, i.e. the C.D. and photographs. According to him the name of Atul Sahu is being disclosed by the prosecution for the first time at the time of submission of the said petition and prior to that the name of that person was not disclosed, being the maker of the alleged C.D. and the photographs. He submitted that the Trial Court has failed to consider that the certificate, issued by Atul Sahu, he has taken print out of 13 photographs, whereas the seizure list shows 17 numbers of photographs were produced by the informant before the police. He submitted that the concerned Court has failed to take into consideration that the aforesaid certificate also does not disclose model of the mobile, resolution, internal storage, title, date and size duration of the video etc., from which, the alleged video was prepared through computer. He further submitted that the

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concerned Court has also failed to take into consideration that the alleged videography was taken by Kanchan Jaiswal in her mobile and the said video was subsequently forwarded to Garima Jaiswal, then to Shova Jaiswal, then to the mobile of Mukesh Jaiswal. P.W.-1 in para38 has categorically stated that C.D. was prepared from the video recording of Mukesh Jaiswal, meaning thereby the video recording of Mukesh Jaiswal is secondary evidence of 4^th degree and the C.D. prepared from the video of Mukesh Jaiswal, therefore, it cannot be said to be the copy of the original, within the meaning of Sections 65A and 65-B of the Evidence Act. He submitted that all the witnesses in their evidence stated that C.D. was prepared at Bhilai without naming Atul Sahu and Atul Sahu is not at all a competent witness to prove the photographs and C.D. as secondary evidence. He referred to particular paragraphs of the witnesses, which have been annexed with this petition and submitted that about the certificate, none of them have stated about the said certificate. He submitted that at the time of lodging of the First Information Report only photographs and CD were produced and no certificate has been produced by any one.

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Mr. Mazumdar, learned senior counsel has submitted that the concerned Court has failed to take into consideration the judgment of the Hon’ble Madhya Pradesh High Court, passed in M. Cr.C. No. 6604 of 2017 [Lateef Gauli Versus State of M.P]. , wherein the Madhya Pradesh High Court has relied upon the judgment of the Hon’ble Supreme Court in the case of Anvar P.V. Versus P.K. Basheer , reported in (2014) 10 SCC 473 , which reads as under:-

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“17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A— opinion of Examiner of Electronic Evidence.

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18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India. 19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth

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Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.

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20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

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* * * *

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22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

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Mr. Mazumdar, learned senior counsel further relied upon

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the judgment of the Full Bench of the Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal & Ors. , reported in (2020) 7 SCC 1 , wherein paras- 52, 54, 55, 56, 60 and 61 are quoted hereunder:-

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“52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V., this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.

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54. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 CrPC, which reads as follows, is mandatory. Therefore, the electronic evidence i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the

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prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.

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55. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in CBI v. R.S. Pai, the only exception to this general rule is if the prosecution had “mistakenly” not filed a document, the said document can be allowed to be placed on record. The Court held as follows : (SCC p. 85, para 7).

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“7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court.”

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56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite

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certificate as part of his defence, this again will depend upon the justice of the case — discretion to be exercised by the court in accordance with law.

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60. It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a “responsible official position” in relation to the operation of the relevant device, as also the person who may otherwise be in the “management of relevant activities” spoken of in sub-section (4) of Section 65-B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the “best of his knowledge and belief”. [Obviously, the word “and” between knowledge and belief in Section 65B(4) must be read as “or”, as a person cannot testify to the best of his knowledge and belief at the same time.]

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61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V., and incorrectly “clarified” in Shafhi Mohammad. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.”

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By referring this Full Bench judgment of Hon’ble Suprme Court and the judgment of the Hon’ble Madhya Pradesh High Court, learned senior counsel submitted that the Trial Court is erred in passing the impugned order and the same is fit to be quashed.

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Per contra, Mr. P.K. Deomani, learned counsel appeared for the O.P. No. 2 submitted that there is no illegality in the impugned order and the concerned Court has rightly passed the order. He submitted that the petition dated 15.02.2020 was essential to be filed by the prosecution and the same was very much maintainable both in

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law as well as on the facts and circumstances of the case and that the objections raised by the petitioner in his rejoinder dated 26.02.2020 were all misconceived and untenable in law as well as on the facts of the case. He further submitted that the learned Court below has rightly passed the impugned order, allowing the said petition dated 15.02.2020. He submitted that certificate dated 15.02.2020 fully satisfies all the requirements of Section 65-B of the Evidence Act and the same was rightly admitted in evidence by the learned Court below in the interest of justice. According to him the photographs and C.D. sought to be proved through the said certificate, which had been given to the police at the very initial stage of the case and it was the duty of Investigating Officer to collect a certificate under Section 65-B of the Evidence Act, however he never tried to do so for the reasons best known to him. According to him no new evidence was introduced by way of the said certificate and that the petitioner was aware of the said evidence since the beginning of the case. He submitted that the certificate dated 15.02.2020 has already been proved by the prosecution in this case and was brought on the record with some delay and it cannot and does not mean that the same was inadmissible as evidence in any manner. He submitted that even if the expert witness Atul Sahu was not a charge-sheet witness and he was allowed to be introduced in this case at the belated stage, the learned Court below has not committed any illegality in any manner whatsoever. He further submitted that the expert witness Atual Sahu has said in his certificate dated 15.02.2020 that he took printout of 13 photographs, whereas the seizure list shows the production of 17 photographs by the informant/victim before the police. According to him the secondary evidence of 4^th degree and the C.D. prepared from the video of Mukesh Jaiswal cannot be said to be the copy of the original within the meaning of Sections 65-A and 65-B of the Evidence Act.

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Mr. Deomani, learned counsel appeared for the O.P. No. 2 has also relied upon the judgment of the Full Bench of Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar (Supra) . He referred Paragraphs-52, 53, 54, 55, and 56 to 60, which are quoted hereinbelow:-

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53. In a recent judgment, a Division Bench of this Court in State of Karnataka v. M.R. Hiremath, after referring to Anvar P.V. held : (M.R. Hiremath case, SCC p. 523, paras 16-17)

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“16. The same view has been reiterated by a twoJudge Bench of this Court in Union of India v. Ravindra V. Desai. The Court emphasised that nonproduction of a certificate under Section 65-B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu v. State of Haryana, in which it was held : (Sonu case, SCC p. 584, para 32)

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‘32. … The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.’

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17. Having regard to the above principle of law, the High Cour t³⁶ erred in coming to the conclusion that the failure to produce a certificate under Section 65-B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise.”

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(emphasis in original)

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“7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of

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submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court.”

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57. The High Court of Rajasthan in Paras Jain v. State of Rajasthan, decided a preliminary objection that was raised on the applicability of Section 65-B to the facts of the case.

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57.1. The preliminary objection raised was framed as follows : (SCC OnLine Raj para 3)

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“3. (i) Whether transcriptions of conversations and for that matter CDs of the same filed along with the charge-sheet are not admissible in evidence even at this stage of the proceedings as certificate as required under Section 65-B of the Evidence Act was not obtained at the time of procurement of said CDs from the service provider concerned and it was not produced along with charge-sheet in the prescribed form and such certificate cannot be filed subsequently.”

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57.2. After referring to Anvar P.V., the High Court

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held : (Paras Jain case, SCC OnLine Raj paras 1523)

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“15. Although, it has been observed by the Hon’ble Supreme Court that the requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but in my view it does not mean that it must be produced along with the charge-sheet and if it is not produced along with the charge-sheet, doors of the court are completely shut and it can not be produced subsequently in any circumstance. Section 65-B of the Evidence Act deals with admissibility of secondary evidence in the form of electronic record and the procedure to be followed and the requirements be fulfilled before such an evidence can be held to be admissible in evidence and not with the stage at which such a certificate is to be produced before the court. One of the principal issues arising for consideration in the above case before the Hon’ble Court was the nature and manner of admission of electronic records.

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16. From the facts of the above case, it is revealed that the election of the respondent to the Legislative Assembly of the State of Kerala was challenged by the appellant Shri Anwar P.V. by way of an election petition before the High Court of Kerala and it was dismissed vide order dated 16-11-2011 by the High Court and that order was challenged by the appellant before the Hon’ble Supreme Court. It appears that the election was challenged on the ground of corrupt practices committed by the respondent and in support thereof some CDs were produced along with the election petition, but even during the course of trial certificate as required under Section 65-B of the Evidence Act was not produced and the question of admissibility of the CDs as secondary evidence in the form of electronic record in absence of requisite certificate was considered and it was held that such electronic record is not admissible in evidence in absence of the certificate. It is clear from the facts of the case that the question of stage at which such electronic

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record is to be produced was not before the Hon’ble Court.

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17. It is to be noted that it has been clarified by the Hon’ble Court that observations made by it are in respect of secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act and if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65-B of the Evidence Act.

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18. To consider the issue raised on behalf of the petitioners in a proper manner, I pose a question to me whether an evidence and more particularly evidence in the form of a document not produced along with the charge-sheet cannot be produced subsequently in any circumstances. My answer to the question is in negative and in my opinion such evidence can be produced subsequently also as it is well-settled legal position that the goal of a criminal trial is to discover the truth and to achieve that goal, the best possible evidence is to be brought on record.

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19. Relevant portion of sub-section (1) of Section 91 CrPC provides that whenever any court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such court, such court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the court at any stage of the proceedings before judgment is delivered and the court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed

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that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view, when under this provision court has been empowered to issue summons for the producment of document, there can be no bar for the court to permit a document to be taken on record if it is already before it and the court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the court to take all steps necessary for the production of such a document before it.

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20. As per Section 311 CrPC, any court may, at any stage of any trial under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Under this provision also wide discretion has been conferred upon the court to exercise its power and paramount consideration is just decision of the case. In my opinion, under this provision it is permissible for the court even to order production of a document before it if it is essential for the just decision of the case.

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21. As per Section 173(8) CrPC carrying out a further investigation and collection of additional evidence even after filing of charge-sheet is a statutory right of the police and for that prior permission of the Magistrate is not required. If during the course of such further investigation additional evidence, either oral or documentary, is collected by the police, the same can be produced before the court in the form of supplementary charge-sheet. The prime consideration for further investigation and collection of additional evidence is to arrive at the truth and to do real and substantial justice. The material collected during further investigation cannot be rejected only because it has been filed at the stage of the trial. 22. As per Section 231 CrPC, the prosecution is entitled to produce any person as a witness even

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though such person is not named in the chargesheet.

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23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured along with the electronic record and not produced in the court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced along with the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form.”

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58. In Kundan Singh, a Division Bench of the Delhi High Court held : (SCC OnLine Del para 50)

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“50. Anvar P.V. partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in Navjot Sandhu¹³ , holding that Section 65-B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65-B(4) is mandatory. Anvar P.V. does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 CrPC or, at the appellate stage under Section 391 CrPC. Evidence Act is a procedural law and in view of the pronouncement in Anvar P.V. partly overruling Navjot Sandhu, the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court/presiding officer at that time to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of Section 65-B.”

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59. Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so

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that information contained in electronic record form can then be admitted, and relied upon in evidence.

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Relying on this judgment, Mr. Deomani, learned counsel submitted that in view of the Full Bench judgment, there is no illegality in the impugned order and the Trial Court has rightly allowed the petition.

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In view of the above facts, this Court has gone through the materials on record, the evidence of prosecution witnesses, annexed as Annexure-2 Series to this petition. On seeing the evidence of P.W.-1, it transpired that there is no whisper of any certificate, however, photographs were mentioned and in the cross-examination of the said witness particularly in para-29, it has been admitted that the C.D. and photographs were seized. In paragraph-38 also, it has been disclosed that the recording has been made in the mobile of Mukesh Jaiswal at Bhilai and on the basis of it, C.D. has been prepared. In para-11 of the evidence of P.W.-2, there is whisper of videography, but there is no mention of certificate. However, in paras-32, 33 and 34 of the evidence of P.W.-2, there is mention about the videography. In para59 of the evidence of said witness also the statement with respect to videography is made. P.W.-3 in paras-8 and 9 has stated about the video. No whisper of certificate is also there. P.W.-7 is the I.O., who has stated in his evidence that he has seized 17 photographs and in para-3 he has admitted that along with the photographs, no certificate

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was provided to him. In para-26, he has admitted that C.D. and memory card were not sent to any laboratory for examination.

¶93

It is an admitted fact that on 11.03.2018 at 14.30 hours, C.D. and photographs were produced by the informant before Telco P.S., whereas the certificate sought to be proved by way of secondary evidence is issued on 15.02.2020 i.e. after nearly two years from the date of producing of the said C.D. and photographs and the law is clear that the certificate under Section 65-B of the Evidence Act must be produced along with the documents i.e. the C.D. and photographs. It is also an admitted fact that the witness Atul Sahu is not the chargesheet witness and all of a sudden Atul Sahu was sought to be adduced as witness only to prove the certificate dated 15.02.2020, which smacks foul in proving the certificate dated 15.02.2020. Even the I.O. has admitted that the certificate was not handed over to him in his evidence and the C.D. could not contain the certificate under Section 65-B of the Evidence Act. Undoubtedly, the C.D. has to be accompanied by the certificate under Section 65-B of the Evidence Act and the same has to be marked as Exhibit / Article and the certificate under Section 65-B of the Evidence Act cannot be allowed to be considered at a later stage.

¶94

So far as the judgment of the Full Bench of Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar (Supra) is helping the petitioner to the some extent because the stage of admitting the documentary evidence in a criminal trial is the filing of the charge-sheet at that stage it is the mandatory duty of the police officer to submit all the relevant documents before the trial court, so that it can be supplied to the accused at the stage under Section 207 of the Cr.P.C. It is also the obligation of the prosecution to supply all the documents, which he is relying upon to be placed upon accused before commencement of the trial.

¶95

The Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar (Supra) in para-52 to 59 observed that production of certificate in criminal case generally prior to the commencement of trial and permission to produce such certificate at a later point must be balancing of rights of the parties and must not result in serious or

¶96

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¶97

irreversible prejudice to the accused nor affect his right to a fair trial. In para-26 of the said judgment, the Hon’ble Apex Court observed that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirement under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip etc. the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. The para-63 of the said judgment speaks as under:-

¶98

“63. While on the subject, it is relevant to note that the Department of Telecommunication’s licence conditions [i.e. under the “Licence for Provision of Unified Access Services” framed in 2007, as also the subsequent “Licence Agreement for Unified Licence” and the “Licence Agreement for Provision of Internet Service”] generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year. Therefore, if the police or other individuals (interested, or party to any form of litigation) fail to secure those records — or secure the records but fail to secure the certificate — within that period, the production of a post-dated certificate (i.e. one issued after commencement of the trial) would in all probability render the data unverifiable. This places the accused in a perilous position, as, in the event the accused wishes to challenge the genuineness of this certificate by seeking the opinion of the Examiner of Electronic Evidence under Section 45-A of the Evidence Act, the electronic record (i.e. the data as to call logs in the computer of the service provider) may be missing.”

¶99

In the light of the judgments passed in the case of Anvar P.V. (Supra) and in the case of Arjun Panditrao Khotkar (Supra), it is clear that the electronic document without accompanied by a certificate under Section 65-B of the Evidence Act is not admissible in law.

¶100

In the case in hand, the photographs were produced on 11.03.2018 and the certificate is of dated 15.02.2020, had the certificate would have been of that date, the matter would have been

¶101

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¶102

otherwise. The prosecution has not made out a case of exhibiting of the said certificate, by way of adducing a person, who was not the charge-sheet witness.

¶103

The trial court committed material illegality by allowing the petition. Accordingly, the impugned order dated 15.02.2021, passed in Sessions Trial No. 245 of 2018, arising out of G.R. No. 735 of 2018 [Telco P.S. Case No. 41 of 2018] by the Court of learned Additional Sessions Judge-VII, East Singhbhum at Jamshedpur, whereby the petition dated 15.02.2020 filed on behalf of the prosecution has been allowed and prosecution is permitted to examine Atul Sahu as a witness for compliance of provision under Section 65-B of the Evidence Act, now pending in the Court of learned Additional Sessions Judge-VII, East Singhbhum at Jamshedppur, is hereby, quashed and set aside.

¶104

This criminal miscellaneous petition is allowed and disposed of.

¶105

The interim order dated 24.03.2021 is vacated.

¶106

The Trial Court is directed to proceed with the trial.

¶107

(Sanjay Kumar Dwivedi, J.)

¶108

Jharkhand High Court, Ranchi. Dated the 6^th of October, 2021. NAFR/ Amitesh /-

Om Prakash Jaiswal v. the State of Jharkhand

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Om Prakash Jaiswal v. the State of Jharkhand

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