Gujarat High Court
Dhruben Guraldas Balani vs State Of Gujarat on 6 January, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3973 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be __
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy __
of the judgment ?
4 Whether this case involves a substantial question __
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHRUBEN GURALDAS BALANI
Versus
STATE OF GUJARAT
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Appearance:
MR I.H. SYED SENIOR ADVOCATE WITH MR AKASH A SINGH
ADVOCATE for the Applicant(s) No. 1
MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
NIMIT Y SHUKLA(8338) for the Applicant(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/01/2022
CAV JUDGMENT
1. Rule. Learned APP waives service of notice of rule on behalf of respondent State.
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2. The petitioner is an accused in Sessions Case No.34 of 2014, which is being tried in the Court of Additional Sessions Judge, Gandhinagar. The FIR being C.R.No.I-218 of 2013 dated 07.10.2013 was registered before the Chandkheda Police Station, Gandhinagar for the offences punishable under Sections 120, 175, 179, 201, 232, 342, 346, 357, 376 and 377 of the Indian Penal Code.
2.1 The present petition has been filed for quashing and setting aside the orders passed under Exhibits 312, 318, 321 and 329 in Sessions Case No.34 of 2014 pending in the Court of learned Additional Sessions Judge, Gandhinagar and further prayed to allow exhibition of documents without disclosing the defence of the accused. It is contended that the learned Court was pleased to reject the prayer to exhibit documentary/electronic evidence. Thus, the petitioner under Articles 14, 21, 226 and 227 of the Constitution of India, 1950 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for short) seeks appropriate direction in connection with Sessions Case No.34/2014.
3. The petitioner states that after the completion of investigation, charge-sheet came to be filed on 09.01.2014. The offence being sessions triable, was committed to the Sessions Court, Gandhinagar and was Page 2 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 numbered as Sessions Case No.34 of 2014. It is stated that during January 2018, the prosecution examined the victim - P.W.27 at Exhibit-278 and during the course of examination-in-chief of the victim, the accused moved an application, Exhibit-312 with the prayer to exhibit the documents/electronic record produced at Serial Nos.1 to 8 on the ground that the admission is not disputed by the parties. Thereafter, during the course of deposition of the victim - P.W.27, the State moved application under Exhibits-317 and 318 for exhibiting few electronic evidences and it is contended that accused had supported the said application of the State by producing an affidavit below Exhibit-308, which came to be rejected and therefore it is prayed that the said electronic evidence is required to be exhibited as being admitted by both the parties.
3.1 It is further stated that during the course of examination of the victim - P.W.27, the accused moved an application being Exhibit-321 before the learned Court below with the prayer to exhibit Serial nos.1 to 4 undisputed by the parties. The accused further moved application below Exhibit-329 contending that the documents / electronic records produced at Sr. No.1 and 2 are required to be exhibited and not merely marked, as the admission is not disputed by the parties.
Page 3 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 3.2 Being aggrieved by the orders dated 03.03.2018, the petitioner has moved this Court contending that the impugned orders against the accused is illegal, invalid and bad in law and the orders are unreasoned and without application of mind in connection to the provisions of law, therefore, are required to be set aside.
4. Senior advocate Mr. I.H. Syed along with Mr. Akash A.Singh, learned advocate for the petitioner submitted that, the petitioner is a senior citizen and suffering from various health issues and further cannot be denied constitutional obligation in State for speedy trial. Mr. Syed referring to the provisions under the Criminal Amendment 2013, for speedy trial in relation to the offences under Section 376 and other specified offences, submitted that the trial is required to be completed within two months from the date of filing of the charge- sheet. Mr. Syed submitted that, the mandate under Section 309 of Cr.P.C. of speedy disposal requires the trial to be conducted on day-to-day basis. Mr. Syed, therefore, submitted that the learned trial Court Judge has not considered the said mandate under the provisions of law while rejecting the application and has not considered the right of the accused for the speedy trial.
4.1 Senior advocate Mr. Syed contended that since the documents placed on record moved by the State and relied upon by the witness were admitted and further the Page 4 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 accused has no objection for exhibiting the said documents to be read as evidence, the trial Court Judge ought to have complied with the provisions of Section 294 Cr.P.C., which is with an object to accelerate the pace of trial by avoiding the time being wasted by the parties in recording unnecessary evidence, where genuineness of the documents is not disputed and when formal proof is dispensed with, contending that such documents are to be read in evidence during the trial without formal proof, therefore, submitted that the documents/electronic evidence are required to be exhibited.
4.2 In support of his submission, Mr. Syed relied on the full bench judgment of Allahabad High Court in case of Saddiq And Ors. Vs. State, reported in 1981 Cri.L.J. 379 and the case of Kodadi Srinivasa Lingam And Others Vs. State of A.P., reported in 2001 CRI.L.J.
602. 4.3. Senior Advocate Mr. Syed relying on the judgment of Anvar P.V. Vs. P.K. Basheer And Others reported in (2014) 10 SCC 473, submitted that applicability of the procedural requirement under Section 65B of the Indian Evidence Act, 1872 (hereinafter referred to a 'Evidence Act' for short) is not mandatory, but is only directory and therefore the orders passed by the trial Court are required to be set aside and trial Court is required to be directed to exhibit the electronic Page 5 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 evidence.
5. Mr. Pranav Trivedi, learned APP for the respondent State placing reliance submitted that in the judgment of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others, reported in (2020) 7 SCC 1, the case of Anvar P.V. Vs. P.K. Basheer And Others (supra), was put for consideration before the larger Bench under reference order of Division Bench, dealing with the interpretation of Section 65B of the Evidence Act, quoting that Shafhi Mohammad Vs. State of Himachal Pradesh, reported in (2018) 2 SCC 801, may need reconsideration.
5.1 Thus, Mr. Pranav Trivedi, learned APP submitted that, the issue had been extensively dealt with in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra) and the Hon'ble Apex Court in paragraph - 73 has answered the reference and has declared the law in context to Section 65B of the Evidence Act. Mr. Trivedi, therefore submitted that, it is a bounden duty of all the Court concerned to follow the law laid down by the Hon'ble Apex Court before considering the electronic evidence on record to be made admissible as evidence.
6. Mr. Syed has placed reliance on the provisions of Section 294 of Cr.P.C. to submit that, even in case of electronic evidence there would be no requirement of any Page 6 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 formal proof when the documents filed before the Court by the prosecution or the accused and when called upon, do not deny the genuineness of the documents, then such documents, though it may be an electronic document, must be read in evidence during the trial without any further proof as to the admissibility or the genuineness.
7. Section 294 Cr.P.C. reads as under:
"294. No formal proof of certain documents. - (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved."
8. In the case of Saddiq And Ors. Vs. State (supra), referred by senior Advocate Mr. Syed, the full bench of Allahabad High Court in paragraph -1, had Page 7 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 formulated the question, in the case referred before them for decision, that, can an injury report filed by the prosecution which has been admitted to be genuine by the accused, be read as substantive evidence under Section 294(3), Cr.P.C.?
8.1 The Full Bench while answering the same, had expressed its opinion in paragraph-8, which reads as under:
"In our opinion, if the prosecution or the accused does not dispute the genuineness of a document filed by the opposite party under Sub-section (1) of Section 294, Cr. P.C. it amounts to an admission that the entire document is true or correct. It means that the document has been signed by the person by whom it purports to be signed and its contents are correct. It does not only amount to the admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under Sub-section (3) of Section 294, Cr. P.C. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true or correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony. It may be mentioned that the phrase 'used in evidence has been used in Sub-section (1) of Section 293, Cr. P.C. with respect to the reports of the Government scientific experts mentioned in Sub-section (4) of Page 8 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 Section 293, Cr. P.C. and the phrase "read in evidence' has been used in Sub-section (1) of Section 296, Cr. P.C. with respect to the affidavits of persons whose evidence is of a formal character. The phrases 'used in evidence' and 'read in evidence', in our opinion, have the same meaning, namely, read as substantive evidence."
8.2 While further dilating on the admission of the documents by either side, prosecution or the accused, the full Bench of the Allahabad High Court has laid down that when the genuineness of the document by the prosecution or the accused under Sub-section (1) of Section 294, Cr. P.C. is not disputed by the opposite party, sub-section (3) of Section 294, Cr, P.C. is applicable and such a document may be read as substantive evidence. It has been observed that object of enacting Section 294 Cr. P.C. is to avoid the time being wasted by examining the signatory of the document filed by the prosecution or the accused under Sub-section (1) of Section 294 Cr. P.C. to prove his signature and the correctness of its contents, if its genuineness is not disputed by the opposite party. The Court has explained the same under the provision of sub-section (3) of Section 294, Cr.P.C. in paragraph-9 of the said judgment in following terms:
"9. It is open to the prosecution or the accused to dispute the genuineness of a document filed by the opposite party under Sub-section (1) of Section 294, Cr. P.C. In Page 9 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 such a case the signatory of the document must be examined by the party filing the document to prove his signature and also the correctness of its contents and the evidence of the signatory will be the substantive evidence and the document may be used to corroborate or discredit his testimony. But where the genuineness of a document filed by the prosecution or the accused under Sub-section (1) of Section 294, Cr. P.C. is not disputed by the opposite party, Sub-section (3) of Section 294, Cr, P.C. is applicable and such a document may be read as substantive evidence. Section 294 , Cr. P.C. is a new section as it had no equivalent in the code of Criminal Procedure 1898. It is based on the rule of evidence that facts admitted need not be proved contained in Section 58, Evidence Act. The object of enacting this section appears to be to avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the accused under Sub-section (1) of Section 294, Cr. P.C. to prove his signature and the correctness of its contents if its genuineness is not disputed by the opposite party. If the signature and the correctness of the contents of a document filed by the prosecution or the accused under Sub-
section (1) of Section 294, Cr. P.C. whose genuineness is not disputed by the opposite party are still required to be proved by examining the signatory of the document, the very object of enacting Section 294, Cr. P.C. will be defeated. We are, therefore, of the opinion that all documents filed by the prosecution or the accused under Sub-
section (1) of Section 294, Cr. P.C. whose genuineness is not disputed by the opposite party may be read as substantive evidence under Sub-section (3) of Section 294, Cr. P.C."
Page 10 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 8.3 But, the Court has further explained in para-13 as under:
"13. It may be mentioned that even if the genuineness of a document filed by the prosecution or the accused under Sub- section (1), Cr. P.C. is not disputed by the opposite party the Court may require the proof of the signature of the person by whom it purports to be signed under the Proviso to Sub-section (3) of Section 294, Cr. P.C. In such a case the signatory of the document must appear in Court and prove his signature and the document will thereafter be read as substantive evidence."
9. Section 29 of the I.P.C. reads as under:
"29. "Document.--The word "document"
denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.
Explanation 1.--It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.
Illustrations A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.
A cheque upon a banker is a document.
A power-of-attorney is a document.Page 11 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022
R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 A map or plan which is intended to be used or which may be used as evidence, is a document.
A writing containing directions or instructions is a document.
Explanation 2.--Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.
Illustration A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words "pay to the holder" or words to that effect had been written over the signature.
9.1 The document, which was sought to be read as substantive evidence under Section 294 Cr.P.C. in the referred case, is an injury report filed by the prosecution, which is considered as document, as defined in Section 29 of the IPC. It was observed in the judgment of Saddiq And Ors. Vs. State (supra) that, before the Code of Criminal Procedure, 1973 came into force an injury report could not be read in evidence as it was only a writing of the doctor made at the time of the examination of the injuries of the injured person. The injury report Page 12 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 contains observation of the Doctor regarding the nature, dimension and location of the injuries and also his opinion regarding their duration and the instrument with which they were caused. The doctor who prepared the injury report was required to enter the witness box during the inquiry or trial to prove the injuries of the injured person. He could refresh his memory under Section 159 of the Evidence Act by referring to the injury report prepared by him. The injury report is proved under Section 67 of the Evidence Act corroborated by deposition in Court under Section 157 of the Evidence Act. Under sub-section (3) of Section 294 of the Cr.P.C., an injury report filed by the prosecution under sub-section (1) of Section 294 of Cr.P.C. may be read as substantive evidence in place of the deposition of the doctor who prepared it, if its genuineness is not disputed by the accused. If the genuineness of the injury report is disputed, then the doctor who examined the injured person must appear in the witness box to prove his injury report and in such a case the statement of the doctor would be the substantive evidence and the injury report may be used to corroborate or discredit his testimony.
9.2 There can be no dispute to the object of enacting Section 294 Cr.P.C. The object in enacting Section 294 Cr.P.C. is to shorten the proceedings. It provides the mode and manner in which document relied upon by the prosecution or defence could be proved without any formal proof thereof. When the genuineness Page 13 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 of the document filed by one party is not disputed and thereby admitted by the other party, the document can be read as substantive evidence by the Court; however it is to be kept in mind that the proviso to section gives discretion to the Court to call for the proof of signature on the documents. Section 294 Cr.P.C. lays down that when any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document; and as provided under sub-section (3) of section 294 Cr.P.C., and when the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under the Code without proof of the signature of the person purported to be signed. But it requires mention that the said section is not absolute since proviso to sub-section (3) gives discretion to the Court and thus is not mechanical for the Judge to blindly accept such document to be read in evidence during the trial, inspite of the fact that genuineness is not disputed.
9.3 Sub-section (3) of Section 294 Cr.P.C. incorporates the expression "'read in evidence', which has to be read with the phrase "without proof of the signature of the person to whom it purports to be signed". In view of the proviso to sub-section (3), the Page 14 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 simple corollary that can be drawn in sub-section (3) generally applies to a private document, but not to public document, since question of proof of signatures in the certified copies of the public document does not arise. Where the document filed are a public document, their formal proof is not necessary, they can be admitted in evidence by virtue of Section 77 of the Evidence Act. Thus, the expression "read in evidence" in this section cannot mean "read as substantive evidence" in view of the bar under section 60 of the Evidence Act.
9.4 It is significant to note that section 294 Cr.P.C. does not refer to a document, which, even if exhibited, cannot be read as a piece of evidence. The injury report by itself does not prove anything, as it is not a substantive piece of evidence. It is an evidence of the doctor on oath in regard to the injuries which alone is substantive evidence. The injury report can only be used to corroborate or contradict the doctor and it cannot be a substitute for the evidence of the doctor. If the injury report filed by the prosecution has been accepted as genuine by the accused it is admissible to be read as evidence. The prosecution, while presenting the police report under section 173 can support the same with documents and they are required to be considered at the time of framing of charge. Thus, in a case where genuineness of injury report or the postmortem report is not disputed by the accused and the reports are read as 'substantive evidence', it may still be necessary to Page 15 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 examine the Doctor concerned to clarify his opinion mentioned in the report or to obtain his opinion on questions of medical nature, which may be involved in the case, then it may become necessary for the Court to examine such relevant person under Section 311 of Cr.P.C. Even if, the genuineness of the documents filed by the prosecution or the accused under sub-section (1) Cr.P.C. is not disputed by the opposite party, the Court may require the proof of the signature of the person by whom it is proposed to be signed under the proviso of Section (3) of section 294 Cr.P.C. For such a case, the signatory of the document must appear in the Court and prove his signature and the document, thereafter to be read as substantive document.
10. Here, in this case, the list produced at Exhibit- 312 in Sessions Case No.34/2014 marked as Mark 312/1 to 312/8, has been produced on record. The list of document so produced was described from serial nos.1 to 8, as under:
Sr. No. Document 1. Schedule of Satsang Programme of Complainant 1
held during 15.11.2004 to 21.11.2004.
2. Schedule of Satsang Programme of Complainant 2 held during 04.11.2005 to 11.11.2005.
3. Schedule of Satsang Programme of Complainant 3 held during 25.10.2006 to 31.10.2006.
4. Poster of Satsang Programme of Complainant held 4 during 25.10.2006 to 31.10.2006.
5. DVD of Satsang Programme of Complainant held 5 at Jammu, Ludhiana and Jalandhar on 25, 26 and Page 16 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 27 June 2006.
6. Transcript of Satsang Programmes of Complainant 6-41 held at Jammu, Ludhiana and Jalandhar on 25, 26 and 27 June 2006.
7. CD of Satsang Programme of Complainant held at 42 Hoshiyarpur (Punjab).
8. Transcript of Satsang Programme of Complainant 43-53 held at Hoshiyarpur (Punjab).
10.1 The deposition of the victim - P.W.-27 in camera at Exhibit-278 was recorded on 29.01.2018. The Chief examination was recorded till paragraph-26 and the cross examination on that very same day started from paragraph-27 which continued on 06.02.2018 and again from paragraphs-35 to 46, the deposition was recorded on the next day on 07.02.2018 and from paragraph-47 to 59 the deposition continued on 08.02.2018. From paragraphs 60 to 76, cross examination was noted on 09.02.2018. From paragraphs 77 to 87, the deposition was noted on 20.02.2018. In cross-examination, it appears that for the very first time, in paragraph-88, the list produced at Exhibit-312, was referred to the witness by the advocate for the accused nos.1, 3 to 7. The list of document at Exhibit-312 does not disclose that the pleader for the prosecution was called upon to admit or deny the genuineness of the document. From the chief- examination, it can be inferred that the same was not sought to be relied upon. Those documents were produced from the side of the accused. The prosecution was not called upon to admit or deny the genuineness of Page 17 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 the document. The Chief examination refers to the document produced in list at Exhibit-106/4, which is a complaint. The said FIR was objected from the side of the defence for want of certificate under Section 65B of the Evidence Act, stating that it was prepared on computer. The trial Court judge overruling the objection had ordered to register the original complaint, mark 106/4 at Exhibit-279. The further evidence in regard to the F.I.R. was noted in paragraph-23 of the chief examination. During the course of chief examination, the seal cover which was a statement under Section 164 Cr.P.C. running in total 26 pages, was shown to the witness, who had admitted the same. Both the defence advocates took objection to exhibiting the statement under Section 164 Cr.P.C.; however, the learned trial Court Judge keeping in mind the provisions of Section 164 admitted the statement at Exhibit-283. So only two documents were referred in examination-in-chief.
10.2 On 01.03.2018, the documents marked as 312/1 to 312/6 were shown to the witness in cross examination. The witness though partly admits those documents does accept it completely, as recorded in para-88 of the deposition. While noting the deposition on 03.03.2018 at para-106, the document, mark 312/5, D.V.D. was permitted to be played in the Court. Mark 312/6, the transcript was shown to the witness, while admitting the transcript, the witness has not specifically admitted the content of the D.V.D. It was at that stage the advocate for Page 18 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 the defence had requested the Court to exhibit mark 312/5 and 312/6 contending that the witness admitted in the deposition that she is the person, who is speaking in the C.D. having admitted, the defence advocate advanced the argument that certificate under Section 65B of the Evidence Act was not necessary.
10.3 The learned trial Court Judge did not agree with the submission and therefore disallowed the prayer for exhibiting the documents. Mark 312/7, C.D. was run in the laptop and the witness admitted that the 'lecture' and the 'bhajan' as were in the C.D., were by her. Mark 312/8, the transcript of the 'Satsang' programme was referred, and was admitted by the witness, a prayer was made to exhibit both the documents; however, the prayer was not accepted by the learned trial Court.
10.4 At para-108, the witness was referred mark 318/1, she said that those were the photographs which were produced by her before the police and had also accepted that along with photograph, she had produced a C.D., but she could not tell the time and period of photographs nor the place, but admitted that the photographs were of the place where she had her 'Satsang programme. In the same way for the C.D., she stated that it was in relation to the 'Satsang' and 'lectures' delivered by her, but could not tell the time period of the C.D, nor could confirm the place. She admitted that in the C.D. there were 'lectures' and Page 19 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 'Bhajans'. She denied that those C.D.s were prepared by her. She stated that the local people would videograph her 'Prawachan' and prepare C.D. and at times would give her the copy of the C.D. In the same way, for the photographs, she stated that those may be taken by the followers. The request was made for exhibiting mark 318/1 on the same assertion that the person who is shown speaking in the C.D., has admitted it therefore the certificate under Section 65B is required to be dispensed with. The trial Court was not pleased to accept the submission and therefore it came to be rejected.
11. Senior advocate Mr. Syed contended that the order of the learned trial Court Judge disallowing the prayer for exhibiting the documents is an unreasoned order. He submitted that the applicability of the procedural requirement under Section 65B of the Evidence Act is required to be dispensed with since the witness admitted the documents. The said contention of the learned senior advocate cannot be accepted. It has to be borne in mind that "every trial is voyage of discovery in which the truth is the quest". By the provisions of Section 165 of the Evidence Act, an extra ordinary power is conferred upon the Court to elicit the truth and to act in the interest of justice. The Court, in any case, cannot admit illegal or inadmissible evidence for basing its decision. Section 165 of the Evidence Act is about the judge's power to put questions or order production.
Page 20 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 11.1 In case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra), the Hon'ble Supreme Court while speaking through justice V.Ramasubramaninan supplementing the judgment has expressed on (i) the reasons for the acrimony behind Section 65B of the Evidence Act, 1872, (ii) how even with the existing rules of procedure, the courts fared well, without any legislative interference, while dealing with evidence in analogous form and (iii) how after machines in analogue form gave way to machines in electronic form expressing that certain jurisdictions of the world changed their legal landscape, over a period of time, by suitably amending the law, to avoid confusions and conflicts. It has been observed in the judgment that documentary evidence in contrast to oral evidence is required to pass through certain checkposts, such as (i) admissibility (ii) relevancy and (iii) proof, before it is allowed entry into the sanctum. It has been observed that under Section 136 of the Evidence Act, relevancy must be established before admissibility can be dealt with, so admissibility depends on relevancy. Therefore, a person should first show relevancy, making it the first checkpost and admissibility the second one. Proof of execution of such documents, in a manner established by law, thus constitutes the third checkpost, which further clarifies that proof of execution stands on different footing than proof of contents. It has been observed that whatever is relevant may not always be admissible, if the law imposes certain conditions.
Page 21 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 While referring to Section 136 of the Evidence Act, the Hon'ble Apex Court has laid down the observations in context of section 65B of the Evidence Act., which reads as follows:
" 78. Section 136 which confers a discretion upon the Judge to decide as to the admissibility of evidence reads as follows:
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."
79. There are three parts to Section 136. The first part deals with the discretion of the Judge to admit the evidence, if he thinks that the fact sought to be proved is relevant. The second part of Section 136 states that 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 Page 22 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 must be proved before evidence is given of the fact first mentioned. But this rule is subject to a small concession, namely, that if the party undertakes to produce proof of the last mentioned fact later and the Court is satisfied about such undertaking, the Court may proceed to admit evidence of the first mentioned fact. The third part of Section 136 deals with the relevancy of one alleged fact, which depends upon another alleged fact being first proved. The third part of Section 136 has no relevance for our present purpose.
80. Illustration (b) under Section 136 provides an easy example of the second part of Section 136. Illustration (b) reads as follows:
"(b) It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced."
81. What is laid down in Section 65B as a precondition for the admission of an electronic record, resembles what is provided in the second part of Section 136. For example, if a fact is sought to be proved through the contents of an electronic record (or information contained in an electronic record), the Judge is first required to see if it is relevant, if the first part of Section 136 is taken to be applicable.
82. But Section 65B makes the admissibility of the information contained in the electronic record subject to certain conditions, including certification. The certification is for the purpose of proving that the information which constitutes the computer output was produced by a computer which was used regularly to store or process information and that the information so derived was regularly Page 23 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 fed into the computer in the ordinary course of the said activities.
83. In other words, if we go by the requirements of Section 136, the computer output becomes admissible if the fact sought to be proved is relevant. But such a fact is admissible only upon proof of some other fact namely, that it was extracted from a computer used regularly etc. In simple terms, what is contained in the computer output can be equated to the first mentioned fact and the requirement of a certification can be equated to the last mentioned fact, referred to in the second part of Section 136 read with Illustration (b) thereunder.
84. But Section 65B(1) starts with a non- obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if read together, mix-up both proof and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled.
85. The placement by Section 65B, of admissibility as the first or the border check post, coupled with the fact that a number of 'computer systems' (as defined in Section 2(l) of the Information Technology Act, 2000) owned by different individuals, may get involved in the production of an electronic record, with the 'originator' (as defined in Page 24 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 Section 2(za) of the Information Technology Act, 2000) being different from the recipients or the sharers, has created lot of acrimony behind Section 65B, which is evident from the judicial opinion swinging like a pendulum."
11.2 The best evidence rule in respect of electronic documents has to satisfy the test laid down in section 65B of the Evidence Act. The Judge may in order to discover or to obtain proper proof of relevant facts may order the production of any document or thing and neither the parties nor their agents shall be entitled to make any objection to any such order, as is provided in section 165 of the Evidence Act. Section 3 of the Evidence Act explains the meaning of 'evidence' and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence and all documents including the electronic records produced for inspection of the Court are called documentary evidence.
11.3 Section 22A of the Evidence Act, considers about the relevancy of oral admissions as to contents of electronic records. It says that the oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question. Section 45A of the Evidence Act deals with the 'opinion of Examiner of Electronic Evidence'. The provision, thus states that when in a proceeding, the Page 25 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 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 and for the purposes of this section, an Examiner of Electronic Evidence shall be an expert.
11.4 Section 65A deals with special provisions as to the evidence relating to electronic record and accordingly the contents of electronic records may be proved in accordance to the provision of Section 65B of the Evidence Act. To understand the relevance of nature of proof required, to prove the content of electronic records, it would be appropriate to reproduce herein the provision of Section 65B of the Evidence Act, which reads thus:
"Section 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.Page 26 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022
R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 (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 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 Page 27 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 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 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 Page 28 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 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.
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."
11.5 Section 65B starts with a non-obstante clause making it clear to consider that 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 shall also be deemed to be a document, if the conditions mentioned in the section are Page 29 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 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. Section 65B of the Evidence Act, thereby refers to the conditions which are required to be satisfied in respect of computer output. The conditions mentioned in sub-clause (2) of Section 65B are required to be cumulatively satisfied. Sub-section (4) of Section 65B, thus lays down about the certificate to be produced in a proceeding, when it is desired to give a statement by virtue of the Section 65B. At the cost of repetition, sub- section (4) of Section 65B is reproduced hereinbelow for ready reference:
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a 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, Page 30 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 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.
12. Information Technology Act, 2000 had come into force to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker's Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.
"Electronic record", thus was introduced in the Indian Penal Code by the introduction of Section 29A, which reads as under:
"29A. "Electronic record".-- The words "electronic record" shall have the meaning assigned to them in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000."Page 31 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022
R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 12.1 The said section gives the meaning, which has been assigned to clause (t) of sub-section (1) of section 2 of Information Technology Act, 2000, which reads hereinbelow:
"electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche."
12.2 Proof of electronic record is a special provisions introduced by the Information Technology Act, amending various provisions under the Evidence Act. Section 65 read with Section 59 and 65A as special provisions as to evidence relating to electronic record, shall be governed by the procedure prescribed under Section 65B of the Evidence Act to prove the contents of electronic records. Section 59 is regarding proof of facts by oral evidence, which read as under:
"59. Proof of facts by oral evidence.-- All facts, except the [contents of documents or electronic records], may be proved by oral evidence."
13. Accordingly all facts except the content of the documents or electronic records may be proved by the oral evidence. Thus, to the facts of the present matter on hand, the content of the electronic record, cannot be said to be proved by way of oral evidence, as suggested to be Page 32 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 an admission by the witness - the victim. Section 65B is a complete Code in itself. It is a special law under Sections 63 and 65 of the Evidence Act.
14. The Hon'ble Apex Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra), in context with sub-section (4) of Section 65B has made the observation, as under:
Para-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 65B. 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.]"
14.1 The Hon'ble Apex Court while placing reliance on case of Anvar P.V. Vs. P.K. Basheer And Others (supra) and overruling the case of Shafhi Mohammad Vs. State of Himachal Pradesh (supra), has held as under:
"the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, i.e. as laid down in Anvar P.V. case, Page 33 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 and incorrectly "clarified" in Shafhi Mohammed. Further oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law and clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. Further, Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom. The former being primary evidence, and the latter being secondary evidence.
The required certificate under Section 65B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. However, where the "computer" happens to be a part of a "computer system" or "computer network"
and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
Held (per V.Ramasubramanian, J., supplementing), what is laid down in Section 65B as a precondition for the admission of an electronic record, resembles what is provided in the second part of Section 136 of the Evidence Act, and going by the requirements of Section 136, the computer output becomes admissible if the fact sought to be proved is relevant, but such a fact is admissible only upon proof of some other fact, namely, that it was extracted from a computer used regularly, etc."
Page 34 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 14.2 The Hon'ble Apex Court in case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra) answering the reference, has finally laid down as under:
"73.1 Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad and the judgment dated 3-4- 2018 reported as Shafhi Mohammad v. State of H.P., do not lay down the law correctly and are therefore overruled.
73.2 The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network"
and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, Page 35 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
73.3 The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
73.4 Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice's Conference in April, 2016."
14.3 The reference thus answered follows the ruling of Anvar P.V. Vs. P.K. Basheer And Others (supra) overruling Shafhi Mohammad Vs. State of Himachal Pradesh (supra) and the case of Tomaso Bruno v. State of U.P., reported in (2015) 7 SCC 178, being declared per incuriam, has clarified that the required certificate under Section 65B is not necessary, if the original Page 36 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 document itself is produced, which can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device on which the original information was first stored, is owned and/or operated by him.
15. In the instant case, the witness has specified in her cross examination that the D.V.D. and the photographs referred to in the cross-examination were from the device held by locals further specifying that the photographs were by the 'Bhakts'. The witness does not state that the device used for the photography and videography belonged to her and thus when the device through which the event was photographed or videographed has not come before the trial Court; and such primary evidence has not been proved by the person who could claim that the original information was first stored in the device owned by him or operated by him, any admission in the cross-examination about the secondary evidence of the electronic record, cannot make such document read in evidence, unless the certificate as contemplated under sub-section(4) of section 65B is produced, along with the secondary evidence, so referred.
15.1 The Hon'ble Supreme Court has also explained the exigency in case, it is impossible to physically bring such system to the Court. It has been observed that in cases where the "computer" happens to be a part of a "computer system" or "computer network" and it Page 37 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). Thus, it becomes mandatory that before referring the D.V.D., C.D. or photographs, which may be digitally taken, certificate under Section 65B(4) would be a pre-requisite for the Court to consider them as admissible information contained in the electronic record. The very requirement has been explained in context of Section 136 of the Evidence Act by the Hon'ble Apex Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra) in paragraph nos.83 and 84, which read as under:
"83. In other words, if we go by the requirements of Section 136, the computer output becomes admissible if the fact sought to be proved is relevant. But such a fact is admissible only upon proof of some other fact namely, that it was extracted from a computer used regularly etc. In simple terms, what is contained in the computer output can be equated to the first mentioned fact and the requirement of a certification can be equated to the last mentioned fact, referred to in the second part of Section 136 read with Illustration
(b) thereunder.
84. But Section 65B(1) starts with a non-
obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not Page 38 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 talk about relevancy. In a way, Sections 65A and 65B, if read together, mix-up both proof and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled."
15.2 The Hon'ble Apex Court while answering the reference directed the courts dealing with electronic evidence to follow the general directions issued in para- 64 of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra). Further to ensure the preservation and certification at the appropriate stage, such directions are made applicable in all the proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
15.3 The Hon'ble Apex Court has considered about the situations in which the police and other individuals (interested or party to any form of litigation) fail to secure the records or may secure record but fail to secure the certificate, as generally internet service provider or provider of mobile telephony are obliged to preserve and Page 39 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 maintain the electronic call records and records of logs of internet users for the limited duration of one year, which in accordance with the "License for Provision of Unified Access Services" framed in 2007 and subsequent "Licence Agreement for Unified Licence" and the "Licence Agreement for Provision of Internet Service" by the Department of Telecom Communication licence conditions. It is observed that in case of police or other individuals because of the limited duration of one year fail to secure the records or the certificate, then the production of post-dated certificate i.e. one issued after commencement of the trial, would in all probability render the data unverifiable. The Hon'ble Apex Court thus has observed that situation would place the accused in a perilous position, where in the event of accused to challenge the genuineness of the certificate by seeking the opinion of the examiner of electronic evidence under Section 45A 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. Thus, to obviate such situation, the Hon'ble Apex court directs in paragraph-64, as under:
"64. To obviate this, general directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other Page 40 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act, which reads as follows:
"67C. Preservation and retention of information by intermediaries.-
(1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe.
(2) any intermediary who intentionally or knowingly contravenes the provisions of sub-section (1) shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine."
16. The defence advocate on 13.03.2018 before the trial Court had moved Exhibit-329 to submit that on the very same day they had produced a list of certified copy relating to court proceedings from serial number 1 to 7, which were upto 26.12.2014 stating that on 27.12.2014, P.W.-27 gave an interview at her own free will and with free mind to Zee News Channel and when this interview Page 41 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 was highlighted in police department and other agencies, P.W.-27 was hijacked by police department and therefore it was urged that the said C.D. of the interview of P.W.-27 dated 27.12.2014 on Zee News Channel falsifies the whole prosecution case and the said C.D. was required to be run in the Court, citing reported judgment of Shamsher Singh Verma Vs. State of Haryana, reported in (2016) 15 SCC 485, of Hon'ble Apex Court as also in view of the order passed by the trial Court at Exhibit-286. The C.D. of the said interview of P.W.-27 on Zee News Channel on 27.12.2014 and transcript of the said C.D. was sought to be produced by the list, as was incorporated in the same application.
16.1 On the very same day i.e. on 13.03.2018, a list of document was produced vide Exhibit-321, which were stated to be the photographs of the complainant delivering spiritual discourses during programme at Pandesara, Surat. Photographs of the complainant performing 'Aarti' of accused no.1 at the programme held at Pandesara and photographs of complainant donating money to poor people during programme held at Surat and photo of the programme held at Laxmi Narayan Mandir, Faridabad (Hariyana).
17. In Shamsher Singh Verma Vs. State of Haryana (supra), the Hon'ble Apex Court, held as under:
"14. In view of the definition of 'document' in Evidence Act, and the law laid down by Page 42 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 this Court, as discussed above, we hold that the compact disc is also a document. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 CrPC personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294. Similarly on a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution. In case it is admitted, it need not be formally proved, and can be read in evidence. In a complaint case such an endorsement can be made by the counsel for the complainant in respect of document filed by the defence.
15. On going through the order dated 21.2.2015, passed by the trial court, we find that all the prosecution witnesses, including the child victim, her mother Harjinder Kaur, maternal grandmother Parajit Kaur and Munish Verma have been examined.
Sandeep Verma (father of the victim) appears to have been discharged by the prosecution, and the evidence was closed. From the copy of the statement of accused Shamsher Singh Verma recorded under Section 313 CrPC (annexed as Annexure P- 11 to the petition), it is evident that in reply to second last question, the accused has alleged that he has been implicated due to property dispute. It is also stated that some conversation is in possession of his son. From the record it also reflects that Dhir Singh, Registration Clerk, Vipin Taneja, Document Writer, Praveen Kumar, Clerk- cum-Cashier, State Bank of Patiala, and Saurabh Verma, son of the appellant have Page 43 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 been examined as defence witnesses and evidence in defence is in progress.
16. We are not inclined to go into the truthfulness of the conversation sought to be proved by the defence but, in the facts and circumstances of the case, as discussed above, we are of the view that the courts below have erred in law in not allowing the application of the defence to get played the compact disc relating to conversation between father of the victim and son and wife of the appellant regarding alleged property dispute. In our opinion, the courts below have erred in law in rejecting the application to play the compact disc in question to enable the public prosecutor to admit or deny, and to get it sent to the Forensic Science Laboratory, by the defence. The appellant is in jail and there appears to be no intention on his part to unnecessarily linger the trial, particularly when the prosecution witnesses have been examined.
18. The answer to this situation, as could be safely relied upon by the learned Judge during the trial, would be Para (24) of the Anvar P.V. Vs. P.K. Basheer And Others (supra), which has been approved to be followed, by Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra). Para(24) of the Anvar P.V. Vs. P.K. Basheer And Others (supra) is quoted herein below for ready reference:
"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for Page 44 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."
19. The Apex while deciding the case of Anvar P.V. Vs. P.K. Basheer And Others (supra), entered into the issue of considering the nature and manner of admission of electronic records, while observing the principles of evidence, stated "Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility". Thus, even if the parties to the litigation, be it prosecution or defence, admits to the secondary evidence of electronic record and process to rely on it for the Court to consider it as 'genuine', the Page 45 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022 R/SCR.A/3973/2018 CAV JUDGMENT DATED: 06/01/2022 trial Court has to first question the relevancy and admissibility.
20. Thus, in view of the direction of Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others (supra) answering the reference and the reasons stated hereinabove to the facts and circumstances of the present case, the petition stands rejected. Rule is discharged.
(GITA GOPI, J.) Pankaj Page 46 of 46 Downloaded on : Wed Jan 12 17:44:19 IST 2022