Avadut Waman Kushe vs The State Of Maharashtra
2016 Latest Caselaw 279 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                    CRIMINAL APPELLATE JURISDICTION




                                                           
                  CRIMINAL WRIT PETITION NO. 54 OF 2016


    Avadut Waman Kushe




                                                          
    Age : 47, Indian Inhabitant
    Residing at Police Adhikari
    Quarters, Shirala, Taluka-Shirala
    Dist.Sangli and permanently
    residing at Vishwakarma Apartment,




                                               
    405 A, Nikam Park,
    Devakar Panand, Kolhapur         ig                    .....Petitioner

           V/s.
                                   
    State of Maharashtra
    At the instance of Inspector
    of Police, Anti Corruption
    Bureau, Sangli                                         ......Respondent
            
         



                                 *****
    Mr. M.K. Kocharekar i/by. Mr. Sandip Laxman Babar, Advocate for
    the petitioner.





    Mr. Deepak Thakare, APP for the State.


                                     CORAM :- SMT. R.P. SONDURBALDOTA, J.

3RD MARCH, 2016.

JUDGMENT :-

1). The single question raised by the petitioner in this petition is,

whether the certificate under Section 65-B(4) of the Indian Evidence

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Act required to be filed for admission in evidence of the electronic

record must necessarily be filed simultaneous with the electronic

record or whether it can be filed at any subsequent stage of the

proceedings.

2). The petitioner is being tried for the offences punishable

under Sections 7, 9, 12, 13(1)(d) a/w. 13(2) of the Prevention of

Corruption Act and Section 201 Indian Penal Code. His pre-trap and

trap conversation with the complainant was recorded on a digital

recorder. The compact discs (C.D.) of the conversation recorded were

produced alongwith the chargesheet. However, at that time the

certificate required under Section 65-B(4) of the Indian Evidence Act

did not accompany the C.D. Later, when the evidence of the

complainant was being recorded, the prosecution desired to run the

C.D. for identifying her voice and the voice of the accused. The

petitioner, however, raised an objection by filing the application at

Exhibit-'20' that in the absence of the requisite certificate, the C.D.

was secondary evidence and hence not admissible in evidence. The

prosecution filed its reply at Exhibit-'23' along with the requisite

certificate (Exhibit-'24'). The Sessions Court, by the order dated 31 st

December, 2015 rejected the application at Exhibit-'20' as devoid of

merits and permitted production of the certificate. This order is

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presently under challenge.

3). Mr. Kocharekar, the learned Advocate appearing for the

petitioner submits that, the prosecution ought to have submitted the

certificate while producing the CD on record. It is his argument that,

considering the provision of Section 65B of the Evidence Act and the

purpose of the certificate, it was necessary for the prosecution to

submit the same along with the C.D. and subsequent filing of the

certificate cannot be treated as compliance with the mandatory

provision. To support his submission, Mr. Kocharekar seeks to rely

upon the decision of the Apex Court in the case of Anvar P.V.

Versus. P.K. Basheer and Others reported in (2014) 10 SCC

page 473 and an unreported decision of Division Bench of this Court

in Faim @ Lala Ibrahim Khan Versus. The State of

Maharashtra passed in Criminal Appeal No. 1009 of 2012

on 20th November, 2015.

4). Since the question to be considered relates to interpretation of

Section 65-B(4) of the Evidence Act, it would be convenient to

reproduce the provision here before referring to the decisions relied

upon by Mr. Kocharekar.

"65B. Admissibility of electronic records.-

(1)..........

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           (2)..........




                                                                                      
           (3)...........

(4)In any proceedings where it isdesired 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."

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    5).    Coming to the decision of the Apex Court, in the decision cited,




                                                       

it was considering as a principal issue in the appeal before it, the

question of what is the nature and manner of admission of electronic

record. The background facts in which the question arose were that,

in an election petition, evidence of the electronic record had been

produced along with the oral and documentary evidence. The

electronic record consisted of the C.D's used for objectionable songs

or announcements made or speeches given. The appellant before the

Apex Court had not produced any certificate in terms of Section 65-B

without which the electronic record was held inadmissible in

evidence. In that background, the Apex Court considered the nature

and manner of admission of electronic records. Paras-16 and 22 of

the decision, have been specifically relied upon by Mr. Kocharekar.

He submits that the special procedure for evidence relating to

electronic record is prescribed under Section 65-B of the Evidence

Act. In the decision cited, the Apex Court has held that, this provision

is a complete code in itself. Therefore, the same has to be strictly

construed and followed while producing electronic record. According

to him, on correct reading of the provision, it becomes clear that, the

certificate must accompany the electronic record at the time of it's

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filing itself.

6). Para-16 of the decision, that has been heavily relied upon by

Mr. Kocharekar, reads as under :-

"16. 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 is based on proof of electronic records can lead to travesty of justice."

Mr. Kocharekar lays emphasis upon the words "certificate must

accompany the electronic record" to submit that the certificate ought

to have accompanied the C.D's filed along with the chargesheet. He

submits that, the certificate being a safeguard against tampering,

alteration, transposition, excision of the record, it was imperative that

the certificate was filed at the time of filing of the chargesheet.

7). The second decision cited is, on the criminal appeal preferred

against conviction for the offence punishable under Section 302

Indian Penal Code. The prosecution had produced "Call Detail

Record" in respect of the mobile phones discovered during

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investigation. The prosecution had failed to file the certificate in

terms of Section 65-B of the Evidence Act. Therefore, that evidence

was held to be inadmissible.

8). In both the decisions cited by Mr. Kocharekar, the only aspect

considered was the mandatory requirement of filing of the certificate

in terms of Section 65-B of the Evidence Act, for the electronic record

to be admissible in evidence, about which there can be no dispute.

Since the facts of the decisions cited, involved non-production of the

requisite certificate, obviously the discussion of law contained

therein, is on the requirement of production of the certificate and not

on the stage at which the same must be produced. Therefore, the two

decisions cited are of no assistance in deciding the question herein.

9). Perusal of the provision of Section 65-B(4) shows that, there is

nothing in the provision that specifies the stage of production of the

certificate. If at all anything, the indication therein is in fact

otherwise. Firstly, the provision of Section 65-B is about admissibility

of electronic record and not production of it. Next the opening words

of Section 65-B(4) are "In any proceedings where it is desired to give

statement in evidence". This can only be the stage at which the

record is tendered in evidence for being considered it's admissibility.

This definitely cannot be the stage of filing of the chargesheet which is

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absolutely the preliminary stage of the proceedings. Therefore, I find

no substance in the submissions advanced on behalf of the petitioner.

The certificate need not be filed at the time of production of the

electronic record. It can be filed at the time, the record is tendered in

evidence. The subsequent filing of the certificate cannot reduce it's

effectiveness as a safeguard against tampering etc. Hence, the writ

petition is dismissed.

ig (SMT. R.P. SONDURBALDOTA, J)