Bombay High Court
Dinesh Ganpat Kodape vs State Of Mah. Thr. Pso Ramnagar ... on 10 August, 2022
Bench: V. G. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 834 OF 2021
Dinesh Ganpat Kodape, Aged about 42
years, Occ. Service, R/o Bamanwada
Road, Snehadeep Nagar, Rajura,
District : Chandrapur.
... PETITIONER
VERSUS
1. State of Maharashtra,
Through P.S.O. Ramnagar,
Chandrapur.
2. Priti Sunil Gaikwad, Aged about
41 yars, Occ : Service, R/o
Shastri Nagar, Chandrapur.
... RESPONDENTS
_____________________________________________________________
Mrs. Shilpa P. Giratkar (Giripunje), Advocate for the petitioner.
Shri S.M. Ukey, A.P.P. for respondent no. 1.
Shri Alok Daga, Advocate for respondent no. 2.
______________________________________________________________
CORAM : VINAY JOSHI, J.
DATED. : 10.08.2022.
ORAL JUDGMENT :
RULE. Rule is made returnable forthwith. Heard finally
by consent of both the parties.
2. At the instance of report lodged by the respondent no.2-
lady, Crime was registered for the offence punishable under Sections
354-A, 509 read with 34 of the Indian Penal Code, 66-A and 66-B of the
Information Technology Act, 2000 and Section 3(1)(11) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989.
3. After framing of charge, the informant has laid evidence.
During the course of her evidence, the prosecution has tendered a
certificate issued by the informant in terms of Section 65-B(4) of the
Evidence Act certifying about electronic evidence. The petitioner-
accused resisted for production of certificate, however the objection
was turned down vide impugned order dated 26.10.2021, and
therefore, the petition.
4. Learned counsel for the petitioner would submit that the
prosecution ought to have filed the certificate at the time of charge-
sheet and it is not permissible to file it at later stage. Moreover, it is
contended that no reasons are assigned by the prosecution for such late
production, and therefore, acceptance of certificate is an error
committed by the Trial Court.
5. On the other hand, learned Counsel appearing for
respondent no.2 as well as learned A.P.P. has supported the impugned
order by stating that there is no bar for production of certificate,
however it is a matter of trial to decide its admissibility at later stage.
Legality of certificate can be decided when the electronic evidence
would be tendered. Moreover, it is submitted that the other side would
get an opportunity to cross-examine the informant as regards to the
certificate.
6. Perused the record and impugned order. It reveals that
certain evidence i.e. printouts of messages exchanged by the parties
was a part of charge-sheet. However, at later stage, during the course of
evidence of informant, certificate under Section 65-B(4) of the
Evidence Act, has been tendered.
7. The Trial Court by relying on the decision of the Supreme
Court in cases of Anvar P.V. Vs. P.K. Basheer and ors (Civil Appeal no.
4226 of 2012) and Arjun Panditrao Khotkar vs. Kailash Kushanrao
Gorantyal 2020 SCC OnLine 571, wherein it is observed that
production of late certificate is a curable defect and it can be filed at
the time of trial when the electronic record is sought to be produced.
The learned Counsel for the petitioner also relied on the judgment of
the Supreme Court in case of Anvar (supra). It reveals that the Hon'ble
Supreme Court ruled that electronic evidence cannot be admitted in
absence of certificate issued under Section 65-B of the Evidence Act.
However, the admissibility of the electronic evidence would depend on
the certificate. There is no bar to produce the certificate at later stage.
Yet, the informant is under cross-examination, therefore the petitioner
would get an opportunity to cross-examine the informant on such
evidence. The learned Trial Court has properly appreciated the issue
and therefore, no interference is called.
8. In view of that petition stands dismissed. No order as to
costs.
(VINAY JOSHI, J.)
Trupti
TRUPTI SANTOSHJI AGRAWAL
12.08.2022 10:32
