Allahabad High Court
Ravi Pandey And Another vs State Of U.P. Thru. Addl. Chief Secy./ ... on 13 August, 2025
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:47553
Court No. - 27
Case :- APPLICATION U/S 482 No. - 6112 of 2023
Applicant :- Ravi Pandey And Another
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Nadeem Murtaza,Anjani Kumar Mishra,Madhukar Raman Yadav,Sarvesh Kumar Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Singh,J.
1. Heard Shri Sarvesh Kumar Dubey, learned counsel for the applicants and learned A.G.A.
2. This application has been filed seeking the following main prayers.
"(i) Quash and set aside the Order, dated 27.04.2023, passed by the Ld. Additional District Judge/FTC II, Lucknow in Sessions Trial No. 701/2014 (State v. Ravi Pandey & Ors.) which is contained in Annexure No. 1.
(ii) Direct the Ld. Trial Court to invoke its powers under Sections 91 read with 311 CrPC and summon the Nodal Officer of the mobile company concerned or recall the Investigating Officer along with the Call Detail Records (CDRs) of the Applicants with the mandatory certificate under Section 65 B of the Indian Evidence Act.
(iii) Direct the Ld. Trial Court to invoke its powers under Section 294 CrPC and take the biometric attendance record of Applicant No. 1 and attendance register of Applicant No. 2 as made available from their then employers on record."
3. Learned counsel for the applicant submits that in the F.I.R. bearing Case Crime No. 148 of 2013 lodged under Sections 498-A, 304-B I.P.C. and Section 3/4 D.P. Act, P.S. Naka, District Lucknow, investigation was conducted and charge was also submitted against the applicants. It is further submitted that during the course of investigation, call detail report of mobile phone no. 9452918698 of the applicant was also collected by the Investigating Officer from the service provider, which was placed before the trial court along with the case diary. However, certificate under Section 65B of the Indian Evidence Act has not been furnished, due to which, the aforesaid evidence is not being considered by the trial court. It is also submitted that the application under Section 91 read with Section 311 Cr.P.C. was also filed before the trial court with the prayer that the Investigating Agency may be directed to place the aforesaid certificate under Section 65B of the Indian Evidence Act in relation to the call detail report filed along with the case diary. However, the said application was also wrongly rejected by the trial court merely on the basis of presumption.
Relying on the decision of the Hon'ble Apex Court in the case of State of Karnataka Vs. T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi & Ors., 2023 SCC OnLine SC 1447, learned counsel for the applicants submits that Hon'ble Supreme Court permitted for procuring the certificate under Section 65B of the Act. It is, thus, submitted that the impugned order is liable to be set aside and necessary instructions may also be issued to the court concerned for issuing necessary direction to the Investigating Agency for placing certificate under Section 65B of the Indian Evidence Act. It is also requested that the trial court may also be directed to proceed in the matter after receiving the said certificate.
4. Learned A.G.A., while opposing the prayer of the applicants, submits that the incident is of the year 2013 and at this stage when the trial is at the end of final hearing, the trial court has rightly rejected the application. However, he does not dispute the fact, on the basis of documents annexed with the application, that the call detail report of the aforesaid phone was also collected by the Investigating Officer and filed along with the case diary. He also concedes the pronouncement of the Hon'ble Apex Court in the case of State of Karnataka Vs. T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi & Ors. (supra).
5. Considering the submissions advanced by the learned counsel for the applicants, learned A.G.A. and going through the contents of the application, impugned order as well as other relevant documents, it is evident that the charge sheet was filed by the Investigating Officer in the crime in question. It is also evident that call detail report was also filed before the trial court along with the case diary, but in the absence of certificate under Section 65B of the Indian Evidence Act, the said call detail report could not have been considered by the trial court.
Identical issue has been decided by the Hon'ble Supreme Court in the case of State of Karnataka Vs. T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi & Ors. (supra). Relevant paras of the judgment are quoted hereunder.
"11. Coming to the issue as to the stage of production of the certificate under Section 65-B of the Act is concerned, this Court in Arjun Panditrao Khotkar's case (supra) held that the certificate under 65-B of the Act can be produced at any stage if the trial is not over. Relevant paragraphs are extracted below:
?56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case ? discretion to be exercised by the court in accordance with law.
59. Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence.?
(Emphasis added)
12. The courts below had gone on a wrong premise to opine that there was delay of six years in producing the certificate whereas there was none. The matter was still pending when the application to resummon M. Krishna (PW-189) and produce the certificate under Section 65-B of the Act was filed under Section 311 of the Cr.P.C.
13. It was only vide order dated 07.04.2017 that the report prepared on the basis of electronic devices was refused to be taken on record by the Trial Court. The original electronic devices had already been produced in evidence and marked as MOs. It was during the examination in chief of M. Krishna (PW-189) that the report of CFSL dated 29.11.2010 was sought to be exhibited. However, the Trial Court vide order dated 07.04.2017 declined to take the same on record in the absence of a certificate under Section 65B of the Act. When the aforesaid witness was further examined in chief on 27.04.2017, the report under Section 65B was produced to which objection was raised by the counsel of the defence and vide order dated 20.06.2017 the Trial Court declined to take the certificate, issued under Section 65B of the Act, on record. It was thereafter that an application was filed under Section 311 of the Cr.P.C. for recalling M. Krishna (PW-189) and produce the certificate under Section 65-B of the Act on record. The same was rejected by the Trial Court vide order dated 18.01.2018.
14. From the aforesaid facts, it cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the original electronic devices were already produced and marked MOs, there was no need to produce the certificate under Section 65-B of the Act. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the accused against the production of CFSL report prepared on the basis of the electronic devices seized.
15. Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Cr.P.C. is there. The object of the Code is to arrive at truth. However, the power under Section 311 of the Cr.P.C. can be exercised to subserve the cause of justice and public interest. In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused.
16. For the aforesaid reasons, the appeal is allowed. The orders passed by the courts below are set aside. Resultantly, application filed by the prosecution under Section 311 of the Cr.P.C. is allowed. The Trial Court shall proceed with the matter further.?
6. In consonance with the above legal proposition held by the Hon'ble Apex Court, this Court is also of the view that once the call detail report was filed by the Investigating Officer before the trial court, then it was obligatory on the part of the court concerned to obtain the certificate under Section 65B of the Indian Evidence Act and, in case, the said certificate was not filed and the application in that regard has been filed by the applicant, then the same ought to have been allowed by the trial court.
7. In view of above facts and discussions, the impugned order dated 27.04.2023 is hereby set aside.
8. The application stands allowed.
9. The Investigating Agency is directed to place the certificate under Section 65B of the Indian Evidence Act before the trial court in relation to the call detail report submitted by the Investigating Officer along with the case diary, whereafter, the trial court shall proceed in the matter.
Order Date :- 13.8.2025
VKS
