Allahabad High Court
Rahul Verma vs State Through C.B.I. / Ac.B., Lucknow on 23 September, 2019
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 13 Case :- CRIMINAL REVISION No. - 1269 of 2019 Revisionist :- Rahul Verma Opposite Party :- State Through C.B.I. / A.C.B., Lucknow Counsel for Revisionist :- Pranjal Krishna Counsel for Opposite Party :- A.S.G. Hon'ble Dinesh Kumar Singh,J.
1. The present criminal revision has been preferred by the accused-revisionist against the order dated 07.09.2019 passed by the learned Trial Court in Sessions Trial No.385 of 2012 (C.B.I. versus Rahul Verma) arising out of Crime No.R.C.14(S) of 2010 of Police Station C.B.I./S.C.B./Lucknow under Sections 302, 201, 364 IPC pending in the Court of learned Special Judge C.B.I., Court No.2, Lucknow.
2. Vide impugned order, the learned Trial Court has accepted the application dated 06.08.2019 filed by the C.B.I. for taking on record the certificate under Section 65-B of the Evidence Act in respect of Call Details Record (C.D.R.) of Mobile Nos.9869306235 and 9454741884.
3. The present case is based on circumstantial evidence. An FIR at Case Crime No.842 of 2008 was registered under Sections 302 and 201 IPC, Police Station Kalyanpur, District Kanpur on 03.09.2008 on the basis of inquest and post mortem report etc., and on the complaint of Mr. O.P. Arya, Security Officer, I.I.T.. In the same case, another FIR at Case Crime No.137 of 2008 under Section 364 IPC was registered on 13.10.2008 at Police Station Moolganj, District Kanpur on the basis of written report of Surya Kumar Bajpai dated 20.01.2008. Two separate investigations in respect of these two FIRs were undertaken by police station Kalyanpur, and Police Station Moolganj.
4. This Court vide order dated 08.10.2010 passed in Writ Petition No.15831(MB) of 2009 filed by Mr. S.K. Bajpai, transferred the investigation of both the cases to C.B.I./S.C.B., Lucknow. Charge-sheet No.2 of 2012 was filed against the accused, Rahul Verma on 18.04.2012. According to the aforesaid charge-sheet, a stack of human bones was recovered from the I.I.T. Campus, Kanpur. It was sent to C.F.S.L. Candigarh for examination. C.F.S.L. Chandigarh prepared its report dated 05.04.2011. According to the said report on the basis of Cellular and Molecular examination, the skeleton was of Sri Adesh Kumar Bajpai s/o Surya Kumar Bajpai and Savitri Devi. Along with the aforesaid charge-sheet, document D-32, true copy of C.D.R. and D-33, E-mail massages and Exh.Ka29 and Ka25 were enclosed. Along with the charge-sheet certificate under Section 65-B of the Evidence Act was not enclosed.
4. The accused-applicant filed an application No.25-B before the Trial Court stating that in absence of the certificate under Section 65-B of the Evidence Act, the electronic record/evidence is not admissible in evidence. The C.B.I. filed its objection to the said application and the learned Trial Court vide order dated 05.04.2019 held that as many as 41 witnesses were examined and the application dated 17.10.2018 was filed when the examination of P.W.34, Rana Pratap Singh was on. The Trial Court held that decision on admissibility or inadmissibility of evidence should not be rendered at the stage of taking evidence on record inasmuch as there is no provision like Order XIII, Rule 3 C.P.C. in the Code of Criminal Procedure. Therefore, the trial Court said that the said application would be decided at the time of final stage and at this stage the decision could not be rendered on the admissibility or non admissibility of the evidence.
5. After the aforesaid order, it appears that the C.B.I. vide letter dated 12.07.2019 wrote to D.E.(Vigilance), BSNL, Kanpur Telecom District, Kanpur stating that during investigation of the case, C.D.Rs. of Mobile Nos. 9869306435 and 9454741884 were provided to the C.B.I. by the BSNL vide letter dated 08.06.2011 and now the Special Judge/C.B.I. trying the case had directed to produce the certificate under Section 65-B of the Evidence Act in respect of the above mentioned C.D.Rs. of the mobile numbers. It was, therefore, requested that certificate under Section 65-B of the Evidence Act, 1872 to be provided for the C.D.Rs. of the aforesaid two mobile numbers. Therefore, certificate under Section 65-B of the Evidence Act was issued on 20.07.2019 by Manoj Manjul, S.D.E. (MS) BSNL office of O/o GM (Mobile Services), Kanpur in respect of C.D.Rs. of Mobile Nos. 9869306435 (for the period between 25.08.2007 to 28.08.2008) and 9454741884 (for the period between 10.08.2008 to 23.08.2008). It was said that the C.D.Rs. were directly fetched from the C.D.R. server Chandigarh by using printer of the available electronic records of BSNL, Kanpur. It was further said that no tampering was made in the aforesaid C.D.Rs.
6. C.B.I. vide application dated 06.08.2019 submitted the aforesaid certificate in the court of learned Trial Court stating therein that by inadvertent mistake a certificate under Section 65-B of the Evidence Act in respect of C.D.Rs. of aforesaid two mobile numbers could not be filed by the investigating officer and, now the certificate under Section 65-B of the Evidence Act had been obtained in respect of C.D.Rs. of the aforesaid two mobile numbers from the competent authority and, therefore, the same be taken on record.
7. The accused filed objection a on 13.08.2019 against the said application dated 06.08.2019 stating that the S.P., C.B.I.(S.C.B.) at Lucknow in its letter dated 12.07.2019 had mislead the BSNL inasmuch as it was wrongly mentioned that "Now the Hon'ble Court of Spl. Judge C.B.I. Anti Corruption has directed to produce certificate u/s 65-B, Evidence Act in respect of above mentioned mobile number". It was further said that the prosecution could not be allowed to plug in the holes in its case so as to take advantage of its own wrong. The certificate obtained under Section 65-B of the Evidence Act in the garb of direction by the trial Court amounted to reinvestigation of the case to plug in the holes in the prosecution story which was not permissible under the law. It was further said that application dated 06.08.2019 for taking on record the certificate under Section 65-B of the Evidence Act should be rejected.
8. Besides taking primarily objections on merit, it was said that the Evidence Act was amended in the year 2000 incorporating Sections 65-A and 65-B. The investigating officer filed charge-sheet in the year 2012 and, therefore, it should be assumed that he had knowledge of the existing provisions of the Evidence Act. However, no such certificate as required under Section 65-B of the Evidence Act was filed along with the charge-sheet and, therefore, at this stage the Court should not allow any lacunae in the investigation to be filled in during the trial. It was also said that the certificate under Section 65-B of the Evidence Act had been obtained only on 20.07.2019 and, it was not part of the charge-sheet and, therefore, it was not provided to the accused under Section 207 Cr.P.C. neither the said certificate was available before the Court at the time of framing of the charge. It was said that as many as 44 prosecution witnesses had been examined since 06.04.2013 and, the accused did not have liberty to cross examine the witness(es) on the said certificate under Section 65-B of the Evidence Act. It is well established law that the certificate has to be of the date when electronic record is generated and it cannot be of the later date.
9. The Trial Court after considering the submissions of the parties has passed the impugned order whereby it has accepted the application dated 06.08.2019 filed by the C.B.I. and taken it on record the Certificate under Section 65-B of the Evidence Act on the ground that non filing of certificate under Section 65-B of the Evidence Act along with electronic record is a irregularity which can be rectified later on.
10. Heard Mr. Nandit Srivastava, Senior Advocate assisted by Mr. Pranjul Krishna appearing for the revisionist, Mr. S.B. Pandey Senior Advocate assisted by Mr. Kazim Ibrahim, appearing for the respondent.
11. Assailing the order dated 07.09.2019 passed by the Trial court, Sri Nandit Srivastava, learned Senior Advocate submits that there is no provision in law which permits the prosecution to move an application for taking on record the certificate under Section 65-B of the Evidence Act at the belated stage inasmuch if same is not filed with the charge sheet. Trial court has no power to take the certificate on record at the later stage. It is further submitted that as many as 44 prosecution witnesses have been examined and the certificate which was not part of the charge sheet, was not given to the accused under Section 207 Cr.P.C. and, therefore, the accused did not have liberty to cross examine any of the witnesses on the certificate. He further submits that certificate dated 20.07.2019 has been obtained almost after 7 years from the date of submission of the charge sheet wherein in the case of Anvar P.V. versus P.K. Basheer and ors : (2014) 10 SCC 473, it has been held that the certificate has to be of the date when the electronic record is produced and, therefore, it cannot be generated subsequently. He further submits that there is no provision under the Code of Criminal Procedure except under Section 391 Cr.P.C. to take additional evidence. Accepting certificate under Section 65-B of the Evidence Act vide impugned order dated 07.09.2019 amounts to filling in the lacunae in the prosecution case and, the same is not permitted under the law inasmuch as it would seriously prejudice the case of the accused.
12. On the other hand, Mr. S.B.Pandey, learned Senior Advocate submits that non filing of the certificate under Section 65-B of the Evidence Act along with the electronic record was a mere omission which could be rectified at later stage. He further submits that evidence has not been closed and trial is still on and, the accused would have liberty to cross examine any of the witnesses on the certificate. Further, certificate has been taken on record and, when it is proved, the accused would have liberty to cross examine the witness. He, therefore, submits that no prejudice has been caused to the accused by taking certificate under Section 65-B of the Evidence Act on record.
13. I have considered the submissions carefully.
14. Chapter 5 of the Evidence Act provides for documentary evidence. Section 65 of the Evidence Act provides the case in which secondary evidence relating to document is given. Section 65-A and 65-B were inserted by the Information Technology Act, 2000 with effect from 17.10.2000. These two sections provides special provisions as to evidence relating to Electronic records. Section 65-A of the Evidence Act provides that contents of electronic records may be produced in accordance with the provisions of Section 65-B of the Evidence Act.
Section 65-B of the Evidence Act reads 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 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 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) information 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.]"
15. Preliminary purpose of incorporating Sections 65-A and 65-B of the Evidence Act is to sanctify proof by secondary evidence. Computer output is a deemed document for the purpose of proof. Under sub-section 1 of Section 65-B, it is mandated 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. The section lays down certain conditions which have to be satisfied in relation to the information and computer in question. If those conditions are satisfied, the electronic record 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.
16. Sub-section 2 of the Section 65-B of the Evidence Act provides conditions which have to be satisfied so as to make computer output as primary evidence. Thus, when a statement is to be produced under this section, it should be identifying the electronic record containing the statement and describing the manner in which it was produced; giving particulars of the device involved in the production of the electronic record showing that the same was produced by the computer and showing compliance with conditions of Sub-section 2 of Section 65-B of the Evidence Act. The statement should 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 such statement shall be evidence of the matter stated in the certificate.
17. Under Sub-section 4 of Section 65-B of the Evidence Act, it would be sufficient for this purpose that the statement is made to the best of the knowledge and belief of the person making it.
18. The present case is based on circumstantial evidence. Evidence consists of three parts (i) electronic record; (ii) documentary evidence other than electronic record; and (iii) oral evidence.
19. The Supreme Court in the case of Anvar P.V. versus P.K. Basheer and ors (supra) held that the evidence relating to electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B of the Evidence Act are satisfied. It has further been held that the electronic records should be accompanied by the certificate in terms of Section 65-B of the Evidence Act obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible.
Para 22 of the said judgment is extracted hereinbelow:-
"22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
20. Thus, the aforesaid judgment is not an authority on the point whether certificate under Section 65-B of the Evidence Act in respect of the electronic record can be produced subsequently as is the case at hands. Section 311 Cr.P.C. provides that at any stage of inquiry or trial or other proceedings under the Code, the Court may summon any person as a witness or examine any person in attendance though not summoned as witness, recall and re-examine any person already examined, if it appears to be essential to the just decision of the case. Thus, what is relevant for calling the additional evidence is to prevent failure of justice and, once the Court is of the opinion that to prevent the failure of justice and for the just decision of the case, it is required to receive additional evidence, there is no restriction on the count of the evidence which may be received, evidence may be former or substantial.
21. The Supreme Court in the case of Rajeswar Prasad Misra v. State of W.B., (1966) 1 SCR 178 in para 10 had opined as under:-
"10. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. Commentaries upon the Code are full of cases in which the powers under Section 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised."
22. The Supreme Court Mohanlal Shamji Soni v. Union of India: 1991 Supp (1) SCC 271 has held that the cardinal rule of law of evidence that the best available evidence should be brought before the court to prove the fact or points in issue. It is the duty of the court not only to do justice but also to ensure that justice is being done.
Para 10 of the aforesaid report is reproduced hereinbelow:-
"10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under Illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a court must discharge its statutory functions -- whether discretionary or obligatory -- according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."
23. The Supreme Court in its recent judgment in the case of State by Karnataka Lokayukta Police Station, Bengaluru versus M.R. Hiremath passed in Criminal Appeal No.819 of 2019 has considered the effect of failure to produce a certificate under Section 65-B(4) of the Evidence Act, at the stage when the charge sheet was filed. The Supreme Court in the aforesaid judgment has held that need for production of certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage when the necessity of production of certificate would arise.
Paras 14 to 17 of the aforesaid report are extracted here in below:-
"14. The provisions of Section 65-B came up for interpretation before a three-Judge Bench of this Court in Anvar P.V. v. P.K. Basheer [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] . Interpreting the provision, this Court held: (SCC p. 483, para 14) "14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer."
15. Section 65-B(4) is attracted in any proceedings "where it is desired to give a statement in evidence by virtue of this section". Emphasising this facet of sub-section (4) the decision in Anvar [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. This is clarified in the following extract from the judgment: (Anvar P.V. case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , SCC p. 484, para 16) "16. ... Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
(emphasis supplied)
16. The same view has been reiterated by a two-Judge Bench of this Court in Union of India v. Ravindra V. Desai [Union of India v. Ravindra V. Desai, (2018) 16 SCC 273 : (2019) 1 SCC (L&S) 225] . The Court emphasised that non-production of a certificate under Section 65-B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu v. State of Haryana [Sonu v. State of Haryana, (2017) 8 SCC 570 : (2017) 3 SCC (Cri) 663] , in which it was held: (Sonu case [Sonu v. State of Haryana, (2017) 8 SCC 570 : (2017) 3 SCC (Cri) 663] , SCC p. 584, para 32) "32. ... The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency."
17. Having regard to the above principle of law, the High Court erred in coming to the conclusion that the failure to produce a certificate under Section 65-B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise."
24. The Supreme Court in the case of Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 1 SCC (Cri) 860 has clarified the legal position regarding admissibility of the electronic evidence, especially by a party who is not in a possession of device from which a document is produced. In the aforesaid judgment, it has been held that after taking note of the judgment of three judge bench in the case of Anvar P.V. versus P.K. Basheer and Ors (supra), if electronic evidence is authentic and relevant, the same can be admitted subject to the court being satisfied about its authenticity and procedure for its admissibility may depend on the facts, situation such as whether a person producing such evidence is in a position to furnish under Section 65-B(4) of the Evidence Act.
25. It has further been said that Sections 65-A and 65-B of the Evidence Act cannot be held to be a complete code on the subject Paras 26 to 30 of the aforesaid report which are relevant are reproduced herein below:-
"26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the Court and the expression "document" is defined in Section 3 of the Evidence Act to mean 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, for the purpose of recording that matter.
27. The term "electronic record" is defined in Section 2(1)(t) of the Information Technology Act, 2000 as follows:
"2. (1)(t) "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;"
28. The expression "data" is defined in Section 2(1)(o) of the Information Technology Act as follows:
"2. (1)(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;"
29. The applicability of procedural requirement under Section 65-B(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 the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4) is not always mandatory.
30. Accordingly, we clarify the 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 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies."
26. Thus, there is no bar for accepting the certificate under Section 65-B(4) of the Evidence Act at later stage if it was not filed along with the charge sheet. The trial is yet to conclude and the accused may avail liberty of examining or re-examining any witnesses in respect of the certificate and electronic record of call detail of two mobile numbers mentioned hereinabove. The certificate under Section 65-B(4) of the Evidence Act is procedural requirement for admissibility of secondary evidence of electronic record and, therefore, it can be produced at a later stage during the trial, if it was not part of the charge sheet. The accused is not prejudiced in any manner by taking on record the certificate under Section 65-B of the Evidence Act at the later stage when trial is still on. Further, it is the duty of the court under Section 311 Cr.P.C. to see that the best available evidence is brought before it to prevent failure of justice and for the just decision of the case. For the said purpose the court is bestowed with wide discretion.
27. In view thereof, I do not find any illegality or impropriety in the impugned order dated 07.09.2019. The present revision petition is, thus, disposed of with liberty to the accused-revisionist to move an appropriate application to recall any witness who may be relevant for the purpose of electronic record and, the certificate produced under Section 65-B(4) of the Evidence Act, if he is so advised and, the trial court will take appropriate decision on such an application in accordance with law.
Order Date :- 23.9.2019 prateek