Delhi District Court
State vs Prasouk Jain 1 on 20 May, 2016
IN THE COURT OF ANUBHAV JAIN, MM02 (TRAFFIC),
SOUTH EAST, SAKET COURTS, NEW DELHI
Challan No : 300102139
Challan Date : 30.05.2015
Vehicle No. : UP16Q0111
STATE .......................Complainant
Versus
PRASOUK JAIN ........................Accused
OFFENCE COMPLAINED U/S 112.1/183(1) of MV Act.
Plea of the Accused : Accused pleaded not guilty
Date of institution of the Case : 22.06.2015
Date on which order was reserved : 10.05.2016
Date of decision : 16.05.2016
Final Order : Accused driver is acquitted for
the offences u/s 112.1/183(1) of
Motor Vehicle Act.
JUDGMENT
1.The brief facts of the case as per the complaint / challan are that on 30.05.2015 at about 12.55 pm, the accused namely Prasouk was plying on car bearing No. UP16Q0111 from Noida to Ashram. The accused was State vs Prasouk Jain 1 intercepted by police officials at Ashram Chowk and on checking, the accused was found to be driving the vehicle at the speed of 102 km/ph which was more than the permissible limit of 70 km/ph, therefore the accused was challaned u/s 112.1/183(1) of MV Act by challaning officer.
2. The accused was admitted on bail on 03.10.2015. Notice u/s 251 CrPC against the accused was framed on 16.02.2016 whereby he was charged u/s 112.1/183(1) of MV Act. Accused pleads not guilty and claimed trial.
3. Prosecution in order to prove his case has examined two witnesses namely SI Satyawan Singh as PW1 who proved the documents i.e. challan Ex. PW1/A, print out of overspeeding is Ex. PW1/B. Prosecution has further examined Ct. Jitender as PW2.
4. Prosecution evidence stands closed vide order dt. 30.04.2016 and on the same day statement of accused was recorded u/s 313 Cr.P.C. The accused in the statement had denied the allegations made against him and stated that the prosecution witnesses were not aware of the correct facts and that they have confused his vehicle with another vehicle which was violating the traffic rules.
5. I have heard the arguments lead by the counsel and perused the file carefully.
6. It is argued by the counsel for the accused that there has been material contradiction in the evidence led by the prosecution witnesses and that State vs Prasouk Jain 2 witnesses have failed to identify the accused in the Court. He further states that the said challan / complaint is not accompanied by mandatory certificate u/s 65B of Indian Evidence Act and as such the same cannot be read in his evidence.
7. It is pertinent to state in here that prosecution in order to prove his case has examined PW1 SI Satyawan Singh and PW2 Ct. Jitender. Although both the witnesses during the course of their examination in chief have stated that they can identify the accused, both of them failed to identify the accused during the course of their cross examination. It is further pertinent to state in here that the accused was being challaned for overspeeding and it is stated in the challan / compliant that permissible speed limit on the said road i.e. where the accused was being challaned was 70 km/ph, however nothing as such has been brought on record by the prosecution to show that the speed limit of the vehicles passing through the said road was confined to 70 km/ph by any Govt. Order etc. Even if for the sake of arguments it is believed that the permissible limit of speed on the said road is 70 km/ph nothing has been placed on record to show that same has been communicated or informed to the passerby by way of sign boards etc.
8. Be that as it may, the prosecution has not placed on record mandatory certificate u/s 65B of Evidence Act, 1872 alongwith the challan and photographs so placed on record, in order to prove the same. In Anvar P.V. State vs Prasouk Jain 3 Appellant v. P.K. Basheer and others Respondent (s) CIVIL APPEAL NO. 4226 OF 2012, Hon'ble Apex Court has observed :
".... Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B 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. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence 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 shall be deemed to be a document only if the conditions mentioned under sub Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was State vs Prasouk Jain 4 regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc State vs Prasouk Jain 5 (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.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the State vs Prasouk Jain 6 Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield".
9. Considering the facts as stated above that there is nothing on record to show that the permissible speed limit on the said road is 70 km/ph and that same has been communicated to the passersby and further considering the fact that both the witnesses produced by the prosecution have failed to identify the accused and that mandatory certificate u/s 65B of Indian Evidence Act 1872 has not been placed on record in absence of which the said challan cannot be read in evidence, the accused Prasouk is acquitted of all the charges.
Pronounced in open Court (ANUBHAV JAIN)
Dated : 16.05.2016 MM, TrafficII (SouthEast)
Saket Courts, New Delhi
Present judgement consisted of 7 pages and each page bears my signatures.
(ANUBHAV JAIN) MM, TrafficII (SouthEast) Saket Courts, New Delhi State vs Prasouk Jain 7