Allahabad High Court
Shyam Sunder Prasad vs Central Bureau Of Investigation, ... on 15 November, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 AFR Case :- CRIMINAL REVISION No. - 921 of 2022 Revisionist :- Shyam Sunder Prasad Opposite Party :- Central Bureau of Investigation, Lucknow Counsel for Revisionist :- Dhananjay Singh Counsel for Opposite Party :- Shiv P. Shukla Hon'ble Dinesh Kumar Singh, J.
1. The present criminal revision under Section 397 read with Section 401 Cr.P.C. has been filed against the order dated 20.08.2022 passed by the Special Judge, C.B.I. Court No.6, Lucknow in Criminal Case No.04 of 2014, Union of India through CBI Vs. Shyam Sunder Prasad, arising out of RC No.0062014(A)0015, under Sections 7 and 13(2) read with 13(1)(d) Prevention of Corruption Act, Police Station CBI/ACB, Lucknow, whereby the learned trial court has allowed the Application No.B-28 filed by the Central Bureau of Investigation ( for short ''CBI') under Section 311 Cr.P.C. for summoning Sri Mahesh Kumar Jain to give evidence in respect of the electronic evidence as Smt. Manisha Kulshreshta, who prepared paper Nos.B-22/1 to B-22/4, is not living in India now and directed for calling Sri Mahesh Kumar Jain as a witness to prove the said documents.
2. The facts, in brief, are that a written complaint was received by the CBI, Lucknow from Sri Kaleem Ahmad on 23.4.2014 regarding demand of illegal gratification by the revisionist. Sri Kaleem Ahmad had taken a Cash Credit Loan of Rs.80,00,000/- from Punjab National Bank, Dhangata, Sant Kabir Nagar. Some cheques of this account got dishonored. The complainant approached the revisionist, who was posted as Branch Manager, and inquired about dishonoring of his cheques despite availability of Cash Credit Loan amount in his account. The revisionist told the complainant that his account was frozen and it would not be de-freezed until he gave him Rs.80,000/- as bribe. The complainant requested the revisionist to reduce the bribe amount and the revisionist agreed to accept a bribe of Rs.50,000/- by cheque from the complainant for de-freezing his account.
3. The CBI after verifying the complaint, registered an FIR against the revisionist under Section 7 of Prevention of Corruption Act on 26.4.2014. A trap was laid on 26.4.2014 by the team of the CBI. The team was accompanied by the complainant along with two independent witnesses. The revisionist was caught red handed with tainted bribe cheque for an amount of Rs.50,000/- received from the complainant for de-freezing his Cash Credit Loan account.
4. The CBI sent the CDs containing conversation recorded between the complainant and the revisionist and their specimen voice collected during pre and post trap proceedings of the case for examination by the Director, Central Forensic Science Laboratory (CBI), New Delhi ( for short ''CSFL') on 5.5.2014. The CFSL prepared the report dated 13.6.2014, which was brought on record by the CBI before the trial court. The said report was prepared by Smt. Manisha Kulshreshtha, Senior Scientific Officer, GR.II (Phy)-cum-Chemical Examiner, CFSL. The result of the examination would reveal that the questioned voices and the specimen voice of the revisionist were similar. The said report stated "hence, the voices marked exhibits ''Q-1(P)', & ''Q-2(P)' are the probable voice of the persons (Shri Shyam Sundar Prasad) whose specimen voice is marked exhibit ''S-1(P)'."
5. An application on behalf of the CBI under Section 311 Cr.P.C. was filed on 2.6.2022 before the trial court with request to allow Sri Mahesh Kumar Jain, Senior Scientific Officer Grade-II (Phy), CFSL as prosecution witness in place of Smt. Manisha Kulshreshta, who had prepared the CFSL report, as she is residing abroad and immediate examination of her is not possible. The revisionist filed an objection on 10.8.2022 that the substitute voice examiner could not be examined as he had not conducted the examination of electronic evidence related to the present case.
6. Learned counsel for the revisionist also argued that the CSFL was not a notified organization/laboratory by the Central Government under Section 79A of the Information Technology Act, 2000 and, therefore, the test report allegedly released by Dr. Manisha Kulshreshta was not consistent with Section 45A of the Indian Evidence Act, 1872. However, the trial court rejected the objection and allowed the application filed by the CBI and ordered to summon Sri Mahesh Kumar Jain.
7. Learned counsel for the revisionist submits that the learned trial court had admitted the report without deciding the question of relevancy of the said document as per Section 136 of the Indian Evidence Act. CSFL report being the electronic evidence and the witness being an expert witness, the said report could not have been proved by a substitute witness as he did not carry out the examination of the sample of voices. The Central Government has not notified the CFSL as an examiner of the electronic evidence according to Section 79A of the Information Technology Act and, the opinion of any other examiner on this behalf particularity regarding the report of an electronic record of a laboratory not notified by the Central Government, would not be relevant as per Section 45A of the Indian Evidence Act. Thus, the CFSL report admitted by the learned trial court vide impugned order dated 20.8.2022 is illegal. To have competence to examine the electronic evidence, notification of Forensic Science Laboratory is mandatory as required under Section 79A of the Information Technology Act and, therefore, the CSFL report in question is not admissible in evidence.
8. On the other hand, Sri Shiv P. Shukla, learned counsel for the CBI has submitted that under Section 79A of the Information Technology Act, it is provided that the Central Government may authorize or notify any department, body or agency to examine the electronic evidence. The provision would not mean that unless an agency/laboratory is notified by the Central Government, it would not be competent to examine the electronic evidence. He further submits that CFSL is a scientific department established by the Central Government in the year 1968 under the administrative control of the CBI and overall control of the Ministry of Home Affairs, Government of India. It is an ISO/IEC 17025:2017 Certified Laboratory from National Accreditation Board of Testing and Calibration Laboratories and, therefore, it is competent to examine any electronic record and give its report.
9. Section 79A of the Information Technology Act would mean that the Central Government may notify any other agency for examination of the electronic evidence, which are not established by the Central Government and which are not under the administrative control of the Government. For CFSL, no such notification would be mandatory. He, therefore, submits that the learned trial court has rightly allowed the application filed by the CBI and no interference is required by this Court.
10. I have considered the submissions advanced by the learned counsel for the parties and perused the record.
11. Section 79A of the Information Technology Act reads as under:-
"79A. Central Government to notify Examiner of Electronic Evidence.-The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence."
12. In Section 79A of the Information technology Act, the word "may" has been used for the Central Government to notify any department, body or agency for examination of the electronic record/evidence. In some of the judgments, the Supreme Court has interpreted the word "may" and held that in some context, "may" should be read as "must" and in some context, it may be directory or discretionary, but it would depend on the context in which the word "may" is used in a provision.
13. Supreme Court in the case of Official Liquidator Vs. Dharti Dhan (P) Ltd. (1977) 2 SCC 166, in paragraph 8 of the judgement held as under:-
"8. Thus, the question to be determined in such cases always is whether the power conferred by the use of the word "may" has, annexed to it, an obligation that, on the fulfillment of certain legally prescribed conditions, to be shown by evidence, a particular kind of order must be made. If the statute leaves no room for discretion the power has to be exercised in the manner indicated by the other legal provisions which provide the legal context. Even then the facts must establish that the legal conditions are fulfilled. A power is exercised even when the court rejects an application to exercise it in the particular way in which the applicant desires it to be exercised. Where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary. It is not the conferment of a power which the word "may" indicates that annexes any obligation to its exercise but the legal and factual context of it. This as we understand it, was the principle laid down in the case cited before us: Frederic Guilder Julius v. Right Rev. Lord Bishop of Oxford: Re v. Thomas Thellusson Carter [5 AC 214] ."
14. Similarly, where the expression "shall" has been used in a provision, it has been held that it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision.
15. Supreme Court in the case of Dinesh Chandra Pandey Vs. High Court of M.P. and another, (2010) 11 SCC 500 in paragraph 15 of the judgement held has under:-
"15. The courts have taken a view that where the expression "shall" has been used it would not necessarily mean that it is mandatory. It will always depend upon the facts of a given case, the conjunctive reading of the relevant provisions along with other provisions of the Rules, the purpose sought to be achieved and the object behind implementation of such a provision. This Court in Sarla Goel v. Kishan Chand [(2009) 7 SCC 658] , took the view that where the word "may" shall be read as "shall" would depend upon the intention of the legislature and it is not to be taken that once the word "may" is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in the light of the settled principles, and while ensuring that intent of the Rule is not frustrated."
16. In the case of Dalchand Vs. Municipal Corporation, Bhopal, (1984) 2 SCC 486, the Supreme Court held that there are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The relevant paragraph of the aforesaid judgment reads as under:-
"...... There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. ....."
17. Section 79A of the Information Technology Act or provision under Section 45A of the Indian Evidence Act do not provide that in absence of a notification in respect of a laboratory, opinion based on scientific examination given by a person well versed or skilled in such science, is not admissible in evidence. Unless such a bar is specifically provided in law, it can not be read as an extension of Section 79A of the Information Technology Act that the report given by any other body/laboratory shall not be inadmissible in evidence in absence of notification. If the body/laboratory is notified, the authenticity of the report of such a body/laboratory may not be available for questioning.
18. When the opinion of expert under Section 45A of the Indian Evidence Act is admitted by the trial, it becomes the opinion of the Court. For the sake of convenience, Sections 45 and 45A of the Indian Evidence Act are extracted herein-under:-
"45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting 35 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 36 [or in questions as to identity of handwriting] 35 [or finger impressions] are relevant facts. Such persons are called experts.
"45A. Opinion of Examiner of Electronic Evidence. --When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact."
19. Section 136 of the Indian Evidence Act, which gives power to the court to decide as to admissibility of the evidence, reads as under:-
"136. Judge to decide as to admissibility of evidence.--When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact."
20. It can not be doubted that the voice sample report of the CSFL, New Delhi is not a relevant evidence. Whether it is admissible or not, it would depend on it being proved in accordance with law.
21. In view of the above, I find no substance in the submission of learned counsel for the revisionist that the learned trial court has not decided the relevancy before admitting the report of the CFSL in evidence.
22. The objection of the revisionist regarding calling of substitute witness for examination vide order dated 20.8.2022 by the Special Judge, CBI as the person who prepared the report is not living in India, also has no substance and is hereby rejected.
23. Section 293 Cr.P.C. provides that any document purporting to be a report under the hand of a Government Scientific Expert in respect of any matter or thing submitted for its examination or analyse may be used as evidence and the court may summon or examine any such expert as to the subject matter of his report.
24. Sub-section (3) of Section 293 Cr.P.C. specifically provides that if such an expert is unable to attend personally, any other responsible officer working with him may be deputed to attend the court. For ready reference, Section 293 Cr.P.C. is quoted below:-
"293. Reports of certain Government scientific experts.--(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court, and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:--(a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Controller of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director 1[, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government; (g) any other Government scientific expert specified, by notification, by the Central Government for this purpose."
25. In view of the aforesaid discussion, I am of the view that the impugned order passed by the learned trial court does not require any interference by this Court in exercise of its revisional jurisdiction under Section 397 read with Section 401 Cr.P.C.
26. Thus, revision has no merit and substance, which is hereby dismissed.
(Dinesh Kumar Singh, J.) Order Date :- 15.11.2022 Rao/-