Delhi District Court
State vs Birju 1 on 20 April, 2016
IN THE COURT OF ANUBHAV JAIN, MM02 (TRAFFIC),
SOUTH EAST, SAKET COURTS, NEW DELHI
Challan No : 19900398
Challan Date : 17.03.2014
Vehicle No. : DL3SAQ1536
STATE .......................Complainant
Versus
BIRJU ........................Accused
OFFENCE COMPLAINED U/S 185, 130/177 & 99(1)/177 of MV Act.
Plea of the Accused : Accused pleaded not guilty
Date of institution of the Case : 09.04.2014
Date on which order was reserved : 19.03.2016
Date of decision : 02.04.2016
Final Order : Accused driver is convicted for
the offences u/s 185, 130/177 &
99(1)/177 of Motor Vehicle Act.
JUDGMENT
1.The brief facts of the case as per the complaint / challan are that on 17.03.2014 at about 10.32 am the accused namely Birju was plying on two wheeler bearing No. DL3SAQ1536 from Bhogal to Badarpur. The accused State vs Birju 1 was intercepted by police officials at Ashram Chowk and on checking, the accused was found to be driving under the influence of alcohol. On checking through the breath analyzer, the alcohol contents were found to be in his blood as 145.6 mg/100 ml which was more than permissible limit of 30 mg/100 ml. The accused was challaned u/s 185 of MV Act by challaning officer. Further the accused driver could not produce any valid PUC certificate or any other document and was also challaned u/s 130/197 and 99(1)/177 of MV Act.
2. The accused was admitted on bail on 06.06.2015. Notice u/s 251 CrPC against the accused was framed on 27.06.2015 whereby he was charged u/s 185 and DMVR 99(1)/177 of MV Act.
3. Prosecution in order to prove his case has examined two witnesses namely SI Vijender Singh as PW1 who proved the documents i.e. challan Ex. PW1/A and alcohol meter receipt Ex. PW1/B. Prosecution has further examined Ct. Vikram as PW2.
4.Prosecution evidence stands closed vide order dt. 07.01.2016 and statement of accused was recorded u/s 313 Cr.P.C on 20.02.2016. No Defence evidence was led by the accused.
5.I have heard the arguments lead by the counsel and perused the file carefully.
State vs Birju 2
6. It is argued by the counsel for the accused that there has been material contradiction in the evidence led by the prosecution witnesses. 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. In Anvar P.V. 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 State vs Birju 3 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 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 State vs Birju 4
(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 (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 State vs Birju 5 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 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".
8. Considering the law laid down by Hon'ble Apex Court in above said case, it is amply clear that a computer generated record cannot be said to be proved in absence of certificate under section 65B of Indian Evidence Act, 1872. In the present case in hand, as the the challan placed on record by prosecution is produced without certificate u/s 65B, the same cannot be relied upon.
9. The accused in his statement u/s 313 CrPC has catogorically denied that he was drunk and has stated that he has been wrongly challaned. Considering the fact that the challans so relied upon by the prosecution cannot be read in evidence in absence of certificate u/s 65B of Indian Evidence Act, 1872 and further there is no other material evidence placed on State vs Birju 6 record by the prosecution in order to bring home the charges against the accused person, the accused Birju is acquitted for all the charges.
Pronounced in open Court (ANUBHAV JAIN)
Dated : 02.04.2016 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 Birju 7