Bombay High Court
State Of Maharashtra Through Police ... vs Rajaram Mahadev Hatkar And Others on 10 January, 2025
2025:BHC-NAG:587
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO. 160 OF 2024
APPLICANT : State of Maharashtra, through
Police Station Officer, Police
Station Ansing, Tq. Dist. Washim.
VERSUS
NON-APPLICANTS 1. Rajaram Mahadev Hatkar,
Aged 45 years.
2. Ram Mahadev Hatkar,
Aged 30 years.
3. Vijay Mahadev Hatkar,
Aged 35 years.
4. Sarubai @ Sarsabai Mahadev
Hatkar, Aged 75 years,
All R/o Pangerkheda, Tq. Dist.
Washim Accused No.1 Since in
M.C.R. at Present (District Central
Jail, Akola Road, Washim.
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Mrs. Swati Kolhe, APP for applicant/State.
Mr. S.D. Chande, counsel for non-applicant No.1
--------------------------------------------------------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATE : 10/01/2025
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally
by consent of learned counsel for the parties.
2. By this revision, the State has challenged the order
passed by the Principal District Judge and Sessions Judge Washim
below Exhibits 52 and 57, rejecting the prayer of the State to
produce the 65-B certificate and the production of the letter of Jio
Company disclosing ownership of mobile number 7720931218
and certificate under Section 65-B of the Indian Evidence Act
issued by the Reliance Jio Company.
3. As per the contention of the State, that Crime No.
122/2023 under Sections 302 and 498-A of the Indian Penal Code
(IPC) was registered against the non-applicant, and they were
charged for the same. The charge was also framed, and the trial
was commenced. The prosecution has examined all 11 witnesses.
The evidence came on record to PW-4 Amit shows that the
accused Rajaram on the fateful day has made a phone call, which
was received by the PW-4-Amit. The extra-judicial confession was
also made by the accused that he has committed the murder of his
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wife. PW-1, the investigating officer, in his evidence in para-5, has
specifically stated that he received the CDR and the mobile
number of the accused, which was in the name of the accused No.
1. He has further stated that the CDR and SDR reports were filed
on record, but the same were without the 65-B certificate.
Therefore, the prosecution filed an application to produce the
65-B certificate. The prosecution has also filed an application to
place on record the CDR and SDR reports, which the Sessions
Judge has permitted to produce the CDR and SDR reports, but
they rejected the prayer to produce the 65-B certificate, and
therefore, the present revision application is filed by the
applicant/State.
4. Heard learned APP for the applicant/State. She
submitted that CDR and SDR reports were part of the charge-
sheet. The production of the copies of the CDR and SDR is
permitted by the Court. However, the Court has rejected the
prayer of the prosecution to place on record the production of the
letter of Jio Company disclosing ownership of mobile number
7720931218 and the certificate under Section 65-B of the Indian
Evidence Act. She submitted that, production of the 65-B
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certificate at the subsequent stage is permissible as the Hon'ble
Apex Court in the case of State Of Karnataka Versus T. Naseer @
Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi & Ors in
criminal appeal no. 3456 of 2023 (special leave petition (crl.) No.
6548 of 2022) reported in 2023 LiveLaw (SC) 965, wherein this
aspect is dealt by the Hon'ble Apex Court by referring the earlier
judgments i.e. in the case of Anvar P.V vs P.K.Basheer & Ors
[(2014) 10 SCC 473] and Arjun Panditrao Khotkar vs Kailash
Kushanrao Gorantyal [(2020) 7 S.C.R. 180], she submitted that
being it is a curable defect, the Sessions Judge ought to have
permit the State to place on record the said 65-B certificate.
5. Learned counsel for the non-applicants/accused
strongly opposed the same on the ground that the CDR and SDR
reports are filed at a belated stage, only to fill up the lacuna of the
prosecution case. In view of that, the application is rightly rejected
by the Sessions Court, and no interference is called for.
6. After hearing both sides and on perusal of the record,
it reveals that Exhibit Nos. 52 and 57, both the applications, are
filed by the State. By way of Exhibit No. 52, the prosecution filed
an application stating that the CA report, CDR, and SDR reports
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are received by them, and they be permitted to file it on record.
The said production was allowed by the Sessions Judge.
Thereafter, Exhibit No. 57 was filed by the prosecution,
contending that inadvertently, they have not filed the Section 65-B
certificate and the letter showing the ownership of the said mobile
phone of accused No. 1. The said application, Exhibit No. 57, is
rejected by the Sessions Court, observing that it is at a belated
stage, and it can not be permitted subsequently and only
permitted to file CDR and SDR reports on record. As per the
prosecution case, there was a communication between the
accused and one of the witnesses, and therefore, they placed
reliance of the CDR report. Before closing the case, the CDR and
SDR reports are received by the Investigating Agency, and
therefore, the same were filed on record. It reveals from the
documents that it was not accompanied with the 65-B certificate.
7. Learned APP further submitted that though the 65-B
certificate was filed along with the documents, it was not
mentioned in the list of the documents and therefore, it was not
permitted to file it on record. She submitted that by referring the
judgments of the Anvar P.V referred (supra) as well as in the case
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of Arjun Panditrao Khotkar referred (supra), and the case of the
State By Karnataka vs Jamal Hirebaksh [ 2019 (7) SCC 515]
wherein the Hon'ble Apex court has held that the non-production
of certificate under Section 65-B of the Act is curable defect. The
relevant paragraph 16 of Arjun Panditrao Khotkar's case is
extracted below;
"16. The same view has been reiterated by a two-Judge
Bench of this Court in Union of India v. Ravindra V. Desai
[(2018) 16 SCC 273]. The Court emphasised that non-
production of a certificate under Section 65-B on an
earlier occasion is a curable defect. The Court relied upon
the earlier decision in Sonu v. State of Haryana [(2017) 8
SCC 570], in which it was held:
"32. ... The crucial test, as affirmed by this Court, is
whether the defect could have been cured at the stage of
marking the document. Applying this test to the present
case, if an objection was taken to the CDRs being marked
without a certificate, the court could have given the
prosecution an opportunity to rectify the deficiency."
8. Coming to the issue as to the stage of the production
of certificate under Section 65-B of the Act is concerned, this
Court in Arjun Panditrao Khotkar referred (supra) held that the
certificate under Section 65-B of the Act can be produced at any
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stage, if the trial is not over. The relevant paragraphs are extracted
below.
"54 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 of the 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
that discretion to be exercised by the Court in accordance
with law."
9. In view of the observation of this Hon'ble Court, the
Sessions Court has already allowed the State to file on record the
CDR and SDR reports. The said order of allowing the prosecution
to place on record the CDR and SDR reports is not challenged by
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the accused. The accused has also not shown what prejudice will
be caused to the accused if the CDR and SDR reports are
permitted to be produced on record. At this stage, nothing is
before the Court to show that the said order was challenged by
the accused. In view of that, the prayer of the prosecution as to
the production of the certificate, which is a curable defect, can be
permitted at a subsequent stage. As far as the prayer of the
prosecution regarding the production of the letter of the Jio
Company, which is not part of a charge-sheet. The learned trial
Court has rightly rejected the said prayer, and therefore, as far as
the production of the letter is concerned and rejection about the
same, no interference is called for.
10. In view of that, revision deserves to be allowed partly.
Accordingly, I proceed to pass the following order.
a] The revision application is partly allowed.
b] The order passed by the Sessions Judge,
Washim, rejecting the production of the
certificate under Section 65-B of the Indian
Evidence Act below Exhibit No. 57 is hereby
quashed and set aside.
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c] The learned Sessions Judge shall permit the
prosecution to place on record the 65-B
certificate, and sufficient opportunity is to be
granted to the accused to cross-examine the
witness.
d] The prayer of the prosecution to place on record
the letter, which is filed below Exhibit No. 52 of
Jio Company, disclosing ownership of Mobile
No. 7720931218, is hereby rejected.
11. Rule is made absolute in the above terms. No order as
to costs.
[URMILA JOSHI-PHALKE, J.]
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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 20/01/2025 19:02:57
