Revision against rejection of an application to direct the complainant to produce his mobile phone supporting a CD of alleged defamatory telecasts. The court held sufficient cross-examination opportunity was given, the Section 65B(4) certificate was produced, no new defence could be raised at appeal stage, and dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:13914 CRL.RP No. 470 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 470 OF 2024
BETWEEN:
…PETITIONER
(BY SRI S. BALAKRISHNAN, ADVOCATE)
AND:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
AGED ABOUT 48 YEARS, S/O K.R.HEGDE, R/AT FLAT NO.401 ZEN GARDEN, AJJARKADU, UDUPI - 576 101
…RESPONDENT
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE APPELLANT COURT IN CRL.A.NO.58/2023 DATED 12.03.2024 ON THE FILE OF PRL. DISTRICT AND SESSIONS JUDGE AT UDUPI BY ALLOWING THIS APPEAL.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
NC: 2024:KHC:13914 CRL.RP No. 470 of 2024
ORDER
This matter is listed for admission and I have heard the learned counsel for the petitioner.
not produced with its SIM card and memory chip to show that the alleged video clipping was telecasted on 29.03.2017 and 30.03.2017. Further, the respondent in his cross-examination has admitted that the said mobile phone is in the possession of his daughter at present staying in Canada. Hence, there is no difficulty for the respondent to procure the same and produce before the Court. It is further contended that the appeal proceedings being continuation of the Trial Court, the Appellate Court can record additional evidence by calling the parties before the Court, summon additional documents and dispose of the appeal based on the additional evidence. This is also supported by many of the judgments of the Hon'ble’ High Court of Karnataka and the Hon'ble Supreme Court of India. Hence, prays to allow the application.
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only. Moreover, at the initial stage, the appellants have approached the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India to quash the proceedings against him. After being unsuccessful in his efforts, he had faced the trial. It is also contended that the appellants have not at all raised any
such matter or suggestion to that effect in the crossexamination of the respondent before the Trial Court. Now, at this belated stage, the appellants cannot make use of such manipulated photos and seek for leading further evidence by summoning new documents. As such, the petition filed at this stage for adducing further evidence does not survive and sought for rejection of the same.
whether the respondent needs to be directed to produce his mobile, namely Apple-7 with SIM card No.9845239894 and memory chip at this stage. The First Appellate Court, having perused the records, observed that the respondent had retrieved the data with regard to telecasting of alleged defamatory news item on 29.03.2017 and 30.03.2017 from his mobile. The video clippings in the CD at Ex.P1 discloses that the Anchors were wearing suit and tie i.e., western attire. The
Court also taken note of the grounds which have been urged and formed the opinion that 30.03.2017 happens to be the day of Ugadi Festival. But admittedly, in the petition itself, the appellants had categorically contended that news item was said to be telecasted on 29.03.2017 and 30.03.2017. If the news
item was telecasted on 29.03.2017 then telecast on 30.03.2017 was a repeat telecast. Hence, the contention of the appellants that the Anchor would be wearing ethnic dress does not hold any water.
the application was of the opinion that Ex.P1 came to be marked before the Trial Court after it was displayed in the open Court. At that time, no questions were asked regarding the clothes worn by the news Anchors. Even before this Court, with the consent of the appellants and the respondent, the contents of Ex.P1 was viewed in the open Court. Hence, for the reasons discussed, this Court is of the opinion that in the absence of setting up a specific defence before the Trial Court, the appellants now cannot come up with this petition calling for production of documents or mobile phone from the respondent. Moreover, the respondent had produced the video clipping of the alleged telecasted news portion along with Certificate under Section 65B of Indian Evidence Act. When that is so, at this stage, the respondent cannot be directed to produce the mobile phone as sought by the appellants.
vehemently contend that if the mobile Chip/SIM is not produced, there are chances of morphing the same and no opportunity was given to effectively cross-examine the witness. Learned counsel would further submit that an application was filed before the Trial Court to recall the witness under Section
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311 of Cr.P.C. and the same was also rejected. Learned counsel also brought to notice of this Court the order sheet of the Trial Court in C.C.No.888/2017. On perusal of the order sheet of the Trial Court, it discloses that a time bound direction was given to the Trial Court to dispose of the case in Crl.P.No.6027/2022 and three months time was granted to dispose of the same and the said order was received by the Trial Court on 30.01.2023. The order sheet also discloses that the complainant was examined on 27.02.2023 immediately after the direction was given by this Court and on 07.03.2023, completed his evidence and produced Certificate under Section 65B of the Evidence Act along with an affidavit to that extent. Further, the learned counsel for the accused sought time on 07.03.2023 and 14 days time was granted to cross-examine the witness even after producing the Certificate under Section 65B of evidence Act and case was adjourned to 21.03.2023 and once again, time was sought and the matter was adjourned to 28.03.2023. On 28.03.2023, the matter was adjourned to 03.04.2023 and 03.04.2023 was declared holiday. On 05.04.2023, accused No.1 was absent and EP was filed, the Trial Court observed that counsel for accused prays to adjourn
the matter till 19.04.2023 due to his busy schedule and having important medical negligence case at Davanagere Court. The learned counsel for the complainant seriously resisted the above submission and contended that the present matter is time bound matter, as such prays to reject the above submission and adjourned the matter for further cross of P.W.1, finally as a last chance to 06.04.2023. Once again on 06.04.2023, the accused Nos.1 to 3 were absent and EP was filed and the same was also rejected and further crossexamination of P.W.1 was taken as Nil.
P. GOPALKRISHNAN ALIAS DILEEP VS. STATE OF KERALA
AND ANOTHER reported in (2020) 9 SCC 161 and brought to notice of this Court Para No.50, wherein an observation is made that the contents of the memory card/pen-drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases
involved issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The Court may issue suitable directions to balance the interests of both sides. Learned counsel referring this judgment would vehemently contend that it is necessary to give direction to the respondent to produce mobile handset with its SIM card, memory card/ chip.
NC: 2024:KHC:13914 CRL.RP No. 470 of 2024
again on 28.03.2023, when the witness was present, learned counsel for the accused filed memo stating that on the previous hearing one person by name Mahendra was accompanied by his gunman present before the Court during the course of crossexamination of P.W.1. The said Mahendra has caused interference and his act amounts to contempt of Court, as such, prayed to take appropriate action against him as per law. The Trial Court has passed a detailed order with regard to the memo also.
NC: 2024:KHC:13914 CRL.RP No. 470 of 2024
counsel was given adjournment and listed the matter for next date and on the next date also, all the accused were absent and EP was filed and the same was rejected.
put to PW1 during the course of cross-examination and new grounds are urged before the First Appellate Court with regard to production of mobile. The First Appellate Court also taken note that when Ex.P1 was marked before the Trial Court and the same was displayed in the open Court and at that time also no question was asked regarding the clothes worn by the news anchors. These grounds which have been raised in the First Appellate Court for the first time and new defence cannot be set up in appeal. The First Appellate Court made an observation that with the consent of the appellants and respondent, the contents of Ex.P1 was viewed in the open Court and taken note of no such defence was set up before the Trial Court and now, without setting up of such defence before this Court, before this Court, the appellants cannot come up with this petition calling for production of documents or mobile phone from the respondent.
regard to production of Certificate under Section 65B(4), the said issue was dealt in STATE (NCT OF DELHI) VS. NAVJOT SANDHU reported in (2005) 11 SCC 600 wherein held that a person who is having acquaintance with the material itself is enough to consider the same. But the Apex Court in the judgment in ANWAR P.V. VS. P.K. BASHEER AND OTHERS reported in (2014) 10 SCC 473 held that Certificate under Section 65B(4) is mandatory. Later, in the judgment of SONU ALIAS AMAR VS. STATE OF HARYANA reported in (2017) 8 SCC 570 and SHAFHI MOHAMMAD VS. STATE OF HIMACHAL PRADESH reported in (2018) 2 SCC 801, the said principle was diluted. Once again, the matter came up before the Apex Court in the case of ARJUN PANDITHRAO
KHOTKAR VS. KAILASH KUSHANRAO GORANTYAL AND
OTHERS reported in (2020) 7 SCC 1 , when the matter was referred to the larger bench in view of reported judgment of same parties in (2020) 3 SCC 216, and the larger bench in the said judgment also reiterated the principles laid down in ANWAR P.V’s case, wherein it is held that if the prosecution relies upon the secondary evidence before the Court, the Certificate under Section 65B(4) is mandatory. In the case on
NC: 2024:KHC:13914 CRL.RP No. 470 of 2024
hand also it has to be noted that when Ex.P1 was marked before the Trial Court, certificate also produced therein at Ex.P2 under Section 65B(4). Now, cannot contend the same in the appeal raising the new contentions and the said fact has been observed by the First Appellate Court that without raising the said contention cannot raise the same in the appeal without foundation.
his case. The production of secondary evidence is permitted with the certificate under Section 65B(4) of the Indian Evidence Act.
Court. The First Appellate Court also rightly rejected the application filed under Section 391(2) read with Section 207(V) of Cr.P.C., in passing detailed order that no foundation was made raising the said defence before the Trial Court. Hence, I do not find any merit in the revision petition to set aside the order passed by the First Appellate Court and no grounds are made out in this revision petition to exercise the revisional jurisdiction.
ORDER
The revision petition is dismissed.
The observation made while disposing of this revision petition shall not influence the First Appellate Court while reconsidering the matter on merits.
Sd/JUDGE
ST,SN List No.: 1 Sl No.: 60
2 issues framed by the court
Could the respondent-complainant be directed to produce his mobile handset with SIM card and memory chip for additional evidence under Section 391(2) Cr.P.C.?
Was secondary electronic evidence admissible when a certificate under Section 65B(4) of the Evidence Act was produced and no objection raised at trial?
Colour shows how this judgement treated each authority
P. Gopalkrishnan alias Dileep vs. State of Kerala and AnotherDistinguished¶11
(2020) 9 SCC 161 · Who else cites this
State (NCT of Delhi) vs. Navjot SandhuReferred¶13
(2005) 11 SCC 600 · Who else cites this
Anwar P.V. vs. P.K. Basheer and OthersRelied on¶13
(2014) 10 SCC 473 · Who else cites this
Sonu alias Amar vs. State of HaryanaReferred¶13
(2017) 8 SCC 570 · Who else cites this
Shafhi Mohammad vs. State of Himachal PradeshReferred¶13
(2018) 2 SCC 801 · Who else cites this
Arjun Pandithrao Khotkar vs. Kailash Kushanrao Gorantyal and OthersRelied on¶13
(2020) 7 SCC 1 · Who else cites this
Arjun Pandithrao Khotkar vs. Kailash Kushanrao Gorantyal and OthersReferred¶13
(2020) 3 SCC 216 · Who else cites this
Taqdir vs. State of HaryanaApplied¶14
(2022) 4 SCC 321 · Who else cites this
5 provisions across 2 enactments
Sri G.M. Kumar
Sri Kishan Hegde
H.P.Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
