Madhya Pradesh High Court
Ramesh Sharma vs The State Of Madhya Pradesh on 30 November, 2019
Author: Rajeev Kumar Shrivastava
Bench: Sheel Nagu, Rajeev Kumar Shrivastava
-( 1 )- MCRC No. 45250/2019
Ramesh Sharma vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Misc. Cri. Case No. 45250/2019
Ramesh Sharma
Versus
State of MP
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Shri Saurabh Parashar, Advocate for the petitioner.
Shri Pratip Visoriya, Special Public Prosecutor, for respondent-
Lokayukt.
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ORDER
(30/11/2019) Per Rajeev Kumar Shrivastava, J.:
This petition has been filed under Section 482 of the Code of Criminal Procedure, against the order dated 04.09.2019 passed by First Additional Sessions Judge & Special Judge, (PC Act) Bhind in Case No. 02/2019 SST, whereby the application filed under Section 91 of CrPC preferred by the petitioner has been partly rejected.
2. The facts of the present case pertain to demand of bribe by the petitioner from complainant Deshraj Singh Tomar for issuing character certificate, in regard to which Special Sessions Trial No.02/2018 is pending before First Additional Sessions Court and Special Court (Prevention of Corruption Act), District Bhind.
3. During the course of trial, after examination of accused under Section 313 of CrPC, an application under Section 91, CrPC, was filed by the petitioner for summoning/production of -( 2 )- MCRC No. 45250/2019 Ramesh Sharma vs. State of MP some crucial documents before the trial Court, which are in possession of the prosecution. The trial Court partly allowed the application and directed for summoning of the documents mentioned in para 1 to 5 of the application, but declined to summon the document mentioned in para 6 of the application, whereby the petitioner wanted to get summoned the copy of circulars/rules/legal provisions, in terms whereof the prosecution has deleted and destroyed the original evidence, i.e., alleged conversation recorded in voice recorder during the pendency of the trial.
4. It is submitted by learned counsel for the petitioner that the document sought to be summoned is necessary for just decision of the case. For ensuring the fairest opportunity of fair trial it is necessary to call/summon the original evidence and in absence of originals the copies cannot be relied and trusted. The prosecution has destroyed the original evidence, i.e., the original conversation recorded in voice recorder with malicious intention.
5. Learned counsel for the petitioner has further submitted that under section 91 of CrPC, at any stage any document may be called, therefore, in such situation refusal to exercise the jurisdiction under Section 91 of CrPC is an error committed by the trial Court. Hence, prayed to allow the instant petition under Section 482 of CrPC.
6. Per Contra, learned Special Public Prosecutor has opposed the submissions and prayed for rejection of the petition.
7. Heard the learned counsel for the parties and perused the material available on record.
8. It is undisputed that the trial is at advance stage. Under Section 91 of CrPC any Court may summon any document on its own or on prayer of officer incharge of the police station. For -( 3 )- MCRC No. 45250/2019 Ramesh Sharma vs. State of MP ready reference, Section 91 of CrPC is reproduced below :
"91. Summons to produce document or other thing.--(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed--
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
The aforesaid provision says, "Whenever any Court or any officer in charge of a police station considers that the production of any document...........". That means, it is the discretion of the Court if it considers that the production of any document or other thing is necessary or desirable, the court may proceed accordingly. Meaning thereby such discretion is vested in the Court itself.
9. In the present case, the petitioner is an accused before the trial Court who is facing trial under Section 07, 13(1)(d) and 13(2) of Prevention of Corruption Act. It is apparent from the record that -( 4 )- MCRC No. 45250/2019 Ramesh Sharma vs. State of MP during trial, statements of 12 prosecution witnesses have been recorded and prosecution evidence is closed. Examination of accused under Section 313 of CrPC was conducted and thereafter application under Section 91 of CrPC for summoning/production of some documents in evidence, which are in possession of the prosecution was filed. The trial Court has partly allowed the application except for summoning circulars/rules/legal position under which the prosecution had deleted/destroyed the original evidence, i.e., conversation recorded in voice recorder during pendency of the trial.
10. In paras 38 and 58 of cross-examination Atul Singh Inspector (PW-11) has stated that as voice recorded in voice recorder is normally not required, hence the voice was deleted.
11. Section 65-B of the Evidence Act runs as under :-
"65B. Admissibility of electronic records.--
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any -( 5 )- MCRC No. 45250/2019 Ramesh Sharma vs. State of MP activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a -( 6 )- MCRC No. 45250/2019 Ramesh Sharma vs. State of MP certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,--
(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.-( 7 )- MCRC No. 45250/2019
Ramesh Sharma vs. State of MP Explanation.--For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
12. Section 65B of Indian Evidence Act relates to admissibility of electronic records and notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media, produced by a computer, which is the output of computer shall be deemed to be a document, if the conditions mentioned in this section are satisfied in relation to the information/computer in question, shall be admissible in any proceedings, without further proof or production of the original.
13. In the present case, the conversation was recorded in a voice recorder and it is squarely covered under Section 65B of Indian Evidence Act as the voice was digitally recorded in the voice recorder and as per Section 65B, there is no need of further proof or production of original as evidence of the contents of the original or any fact stated therein, of which direct evidence is admissible. Such evidence should always be recorded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence is admissible subject to safeguards adopted by the court about the authenticity of the same. In the case of recording of voice conversation, accuracy of the statement is required to be proved by the maker of the record, possibility of tampering is required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, admissibility of an electronic evidence cannot be ruled out only on any technical basis if the same is relevant.
-( 8 )- MCRC No. 45250/2019Ramesh Sharma vs. State of MP
14. In Shafhi Mohammad vs. State of Himachal Pradesh [(2018) 2 SCC 801], the Apex Court has held as under:
"The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.
15. It is also observed in the aforesaid judgment that "legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies."
16. In Om Parkash Sharma vs. CBI, Delhi [(2000) 5 SCC 679], the Apex Court has held as under:-
"7. Therefore, it is to be only seen as to whether the Trial Court has judiciously and judicially exercised its discretion. The Trial Court as also the High Court, seem to have -( 9 )- MCRC No. 45250/2019 Ramesh Sharma vs. State of MP properly applied their minds by going into the nature of the documents sought to be summoned, their bearing and relevance for the nature of consideration to be made at that stage of the proceedings before the Special Judge as well as the necessity and desirability whereof. The consideration so made by the courts below in rejecting the claim of the appellant, could not be held to be either condemnable or constitute any gross or improper failure to exercise their jurisdiction and consequently, it does not call for any interference in our hands. Therefore, the appeal fails and shall stand dismissed."
17. The document received under RTI Act by the petitioner can directly be produced before the trial Court as the document is a public document and it is not required to be proved by its executor before the Court. In case the petitioner wants to get the document exhibited before the trial Court, he can himself exhibit it before the Court during his evidence as defence witness if so required by the petitioner.
18. In the light of above, in the considered opinion of this Court, the Court below has exercised its jurisdiction judiciously by applying its judicial mind. The order impugned does not call for any interference by this Court and the petition under Section 482 of CrPC sans substance and is hereby dismissed.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
(Yog) Judge Judge
YOGESH VERMA
2019.11.30
18:40:19 +05'30'