Hemchandbhai Laljibhai Bhabhor vs State Of Gujarat
2021 Latest Caselaw 5886 Guj

    R/SCR.A/2477/2013                               CAV JUDGMENT DATED: 14/06/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 2477 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

============================================

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2       To be referred to the Reporter or not ?                   No

3       Whether their Lordships wish to see the fair copy of the No
        judgment ?

4       Whether this case involves a substantial question of lawNo

as to the interpretation of the Constitution of India or any order made thereunder ?

============================================ HEMCHANDBHAI LALJIBHAI BHABHOR & 2 other(s) Versus STATE OF GUJARAT ============================================ Appearance:

MR JAPAN V DAVE(5947) for the Applicant(s) No. 1,2,3 MS MOXA THAKKAR ADDITIONAL PUBLIC PROSECUTOR(2) for

============================================

CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

Date : 14/06/2021

CAV JUDGMENT

1. Heard learned Advocate Shri Japan Dave on behalf of the applicant

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

and learned APP Ms. Moxa Thakkar on behalf of respondent-State.

2. Issue Rule returnable forthwith. Learned APP waives service of rule on behalf of the respondent-State.

3. With consent of parties, present petition is taken up for final hearing.

4. By way of the present petition, the petitioners pray for quashing and setting aside the order passed below Exh. 54 dated 03.08.2013 in Sessions Case No 152 of 2013 pending before the learned Principal District Court and Sessions Judge at Dahod and they further pray to de-exhibit document numbered as Exh. 52 and provide a copy thereof to the present petitioners.

5. The facts leading to the present petition are as under:

5.1. The petitioners have been arraigned as accused in connection with Criminal Complaint being C.R. I- 82 of 2012 registered with Dahod Town Police Station, District: Dahod for the offences punishable under Sections 395 and 34 of the Indian Penal Code ( for short 'IPC') and under Sections 25(1)(a)(b) and 27 of the Arms Act.

5.2. After filing of the charge-sheet, the matter had been sent for trial and whereas the following charge had been framed against the accused

- petitioner herein:

"On 26.06.2012 in night at 2.15 hours, on Godhra Road, Dahod in show-room of 'P. Maneklal, present three accused and absconding accused armed with deadly weapons entered and gave kick and fist blows to

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

Watchman Rameshbhai Ganpatbhai Bhati and committed robbery of golden ornaments of Rs. 16,09,000/- and thereby accused have committed the offence punishable under Sections 398, 34 of IPC and Section 25(1)AB, 27 of the Arms Act."

6. The trial in connection with the Criminal Complaint had been numbered as Sessions Case No. 152 of 2011 and whereas at the relevant point of time 17 witnesses were examined in connection with the said Sessions Case.

7. The prosecution had produced documentary evidence along with list before the Sessions Court and whereas a copy of such said list had been given to the defence at which time the defence had realized that the prosecution had relied upon a Compact Disc ( CD) which allegedly contains CCTV footage which was neither mentioned in the charge-sheet nor copy thereof had been placed with the documents supplied with the list.

8. That the owner of the gold and diamond ornaments show-room named as 'P. Maneklal' wherein the alleged crime had been committed had been examined by the prosecution at Exh. 11 on 31.01.2013 and whereas he had deposed that there were CCTV cameras placed in the show-room and he had seen the CCTV footage and he had recorded the CD and he had submitted the same to the police authorities numbered mark 6/12.

It is submitted that at the relevant point of time the Public Prosecutor had requested for exhibiting the said document and while learned Advocate for the accused had objected to giving exhibit number to the said CD since copy of the same had not been given to them and

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

whereas according to the defence had raised apprehension about CD being concocted. Learned Sessions Court relying upon the decision of the Supreme Court reported in Bipin Shantilal Panchal versus State of Gujarat reported in 2001 (3) SCC 1 had given the CD tentative Exh. 13. In his cross-examination owner of the show room Mr. N.M. Soni had denied that he had not handed over the CD of the CCTV footage to the police and concocted the CD later on.

The Investigating Officer Shri J.N. Panchal had been examined at Exh. 49 and whereas he had stated that the CD concerned which was given Mark 6/12 and tentative Exh. No. 13 was prepared as per CCTV footage. It is seen that at that stage learned Public Prosecutor had requested for exhibiting the CD and since the learned Advocate for the accused had objected thereto and whereas relying upon the decisions of this Court in Ashvinbhai Somabhai Patel versus Rugendra Prasadji Pandey reported in 2009 (3) GLR 2352 and case of Bipin Shantilal Panchal (supra) the learned Sessions Court had noted the objection of the defence and had further noted that the said objection would be considered at the final stage and had directed that the CD be numbered as Exh. 52.

Aggrieved by the same the petitioners had given an application under Exh.54 requesting the learned Sessions Court to de-exhibit the CD which had been given exhibit number No. 52 in examination of Investigating Officer at Exh. 49 and to further give copy of the said CD as per the provisions of Section 207 of the Code of Criminal Procedure to the petitioner herein.

9. Learned Sessions Court after hearing learned Advocates for the parties had passed order below Exh. 54 in Sessions Case No. 152 of 2011

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

whereby the learned Sessions Court had held that the Exh. 52 given to the CD could not be de-exhibited and whereas its copy could not be handed over to the accused and furthermore the CD shall have to be displayed in open court room in presence of accused as well as learned Advocates for the accused and learned Public Prosecutor.

10. Being aggrieved and dissatisfied with the order of the learned Sessions Court dated 03.08.2013 the present petitioners have preferred the present petition.

11. Heard learned Advocate Shri Japan Dave for the petitioner who has submitted that order passed below Exh. 54 is in gross violation of the fundamental rights of the petitioners and whereas passing of the said order has denied the right to fair trial guaranteed right under Article 21 of the Constitution of India. He further submitted that Sections 91 and 207 of Cr.P.C stipulated that the prosecution has to provide copies of all the material/documents which are sought to be relied upon by the prosecution to the accused and whereas the learned Sessions Court had completely lost sight of the said provisions. Learned Advocate further submitted that the CCTV footage is stated to have been given by the P.W.2-complainant to the police on the night of the incident itself and while ideally the same should have been part of charge-sheet and whereas having not done so, the prosecution ought not to have tried to take advantage of their own wrong by objecting to giving copy of the CD to the petitioner. He further submits that while CD being electronic evidence would be admissible evidence under the provisions of the Indian Evidence Act but for exhibiting the documents only its admissibility in evidence would not be sufficient but it should be proved before it is exhibited and whereas the learned Sessions Court had failed to consider this very important aspect. Learned Advocate

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

further submits that the learned Sessions Court has misread the direction given by the Supreme Court in the case Bipin Shantilal Panchal (supra) He further submits that even otherwise principles of nature justice requires that when the prosecution is relying upon any material, the same has to be provided to the defence and merely on the ground that footage will be displayed in the open Court the defence should not be denied copy thereof. Thus submitting the learned Advocate had requested that this Court may quash and set aside the impugned order below Exh. 54 dated 03.08.2013 and whereas he has further requested that this Court may also direct to de-exhibit the CD and further direct the prosecution to supply the copy of the CD to the petitioner-accused.

12. On the other hand, learned APP had strongly opposed this application and submitted that the learned Trial Court had not committed any error of law and on facts while passing the impugned order under such circumstances, she submits that this Court may not interfere with the order impugned herein.

13. Learned Advocates for the parties have not submitted anything further.

14. Having heard learned Advocates for the parties and having perused the record, the question that emerges for consideration of this Court is whether copy of the CD ought to have been given to the accused under Section 207 of the Code of Criminal Procedure, the CD being electronic evidence the question of admissibility thereof and the stand to be taken by the Court when there is question with regard to admissibility of evidence. Before proceeding further it would be beneficial to refer to recent judgement of the Supreme Court where the issue of supplying copy of

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

documents to the accused by the prosecution has been clarified. The observations in P.Gopalkrishnan @ Dileep vs State of Kerala and another reported in (2020) 9 SCC 161 at paras 14 to 22 are as under:

"14. The central issue is about the obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report under Section 207 of the 1973 Code. Section 173 of the 1973 Code ordains that the investigation under Chapter XII of the said Code should be completed without unnecessary delay and as regards the investigation in relation to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the 1860 Code, the same is required to be completed within two months from the date on which the information was recorded by the officer in charge of the police station. The investigating officer after completing the investigation, is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offence on such police report. Alongwith the police report, the investigating officer is also duty bound to forward to the Magistrate "all documents" or relevant extracts thereof, on which prosecution proposes to rely other than those sent to the Magistrate during investigation. Similarly, the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate alongwith the police report. Indeed, it is open to the police officer, if in his opinion, any part of the "statement" is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in public interest, to indicate that part of the "statement" and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. That discretion, however, is not given to him in respect of the "documents" or the relevant extracts thereof on which the prosecution proposes to rely against the accused concerned. As regards the documents, subSection (7) enables the investigating officer, if in his opinion it is convenient so to do, to furnish copies of all or any of the documents referred to in subSection (5) to the accused.

15. Section 173, as amended and applicable to the case at

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

hand, reads thus:

''173. Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(1-A) The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170;

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report--

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subjectmatter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub section (2).'' (emphasis supplied)

16. Concededly, as regards the "documents" on which the prosecution proposes to rely, the investigating officer has no option but to forward "all documents" to the Magistrate alongwith the police report. There is no provision (unlike in

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

the case of "statements") enabling the investigating officer to append a note requesting the Magistrate, to exclude any part thereof ("document") from the copies to be granted to the accused. Sub Section (7), however, gives limited discretion to the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to the accused. That does not permit him to withhold the remaining documents, on which the prosecution proposes to rely against the accused, from being submitted to the Magistrate alongwith the police report. On the other hand, the expression used in Section 173(5)(a) of the 1973 Code makes it amply clear that the investigating officer is obliged to forward "all" documents or relevant extracts on which the prosecution proposes to rely against the accused concerned alongwith the police report to the Magistrate.

17. On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the 1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. Section 207 reads thus:

'' 207. Supply to the accused of copy of police report and other documents.--In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:--

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under subsection (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173:

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.'' As regards the statements, the first proviso enables the Magistrate to withhold any part thereof referred to in clause

(iii), from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in subSection (6) of Section 173. However, when it comes to furnishing of documents submitted by the investigating officer alongwith police report, the Magistrate can withhold only such document referred to in clause (v), which in his opinion, is "voluminous". In that case, the accused can be permitted to take inspection of the concerned document either personally or through his pleader in Court. In other words, Section 207 of the 1973 Code does not empower the Magistrate to withhold any "document" submitted by the investigating officer alongwith the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of 'statements' referred to in subSection (6) of Section 173 of the 1973 Code.

18. Be that as it may, the Magistrate's duty under Section 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the Section. We may usefully advert to the dictum in Hardeep Singh v. State of Punjab1 wherein it was held that:

"47. Since after the filing of the chargesheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the chargesheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

CrPC, committal, etc. which is only a pretrial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pretrial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court "

(emphasis supplied)

19. In yet another case of Tarun Tyagi vs. CBI2, this Court considered the purport of Section 207 of the 1973 Code and observed as follows:

"8. Section 207 puts an obligation on the prosecution to furnish to the accused, free of cost, copies of the documents mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report under Section 173(5) of the Code. Such a compliance has to be made on the first date when the accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the accused with the copy thereof, the Magistrate can allow 1 (2014) 3 SCC 92 2 (2017) 4 SCC 490 the accused to inspect it either personally or through pleader in the Court."

20. It is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences as expounded in Nelson Motis v. Union of India3. On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible.

21. Be that as it may, furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)4, this Court expounded thus:

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

"218. The liberty of an accused cannot be interfered with except under due process of law. The expression "due process of law" shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be 3 (1992) 4 SCC 711 4 (2010) 6 SCC 1 furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.

219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under subsection (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression "documents on which the prosecution relies" are

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.

220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.

221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non- production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially." (emphasis supplied)

22. Similarly, in V.K. Sasikala v. State5, this Court held as under:

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

"21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The 5 (2012) 9 SCC 771 question arising would no longer be one of compliance or noncompliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of Cr.PC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."

(emphasis supplied)

15. The position of law that emerges from the observation of the Supreme Court is that all the documents that the prosecution seeks to rely upon, are to be supplied to the accused since full disclosure is an extremely valuable right and also an essential feature of a fair trial. Furthermore in so far as with regard to Section 207 of the Cr.P.C., the Magistrate is not empowered to withhold any document submitted along with the police report except when it is voluminous. That the obligation is on the prosecution to furnish to

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

the accused copies of all documents mentioned therein and whereas Section 238 of the Code warranting the Magistrate to satisfy himself that the provision of Section 207 have been complied with.

16. In so far as the applicability of the legal principle in the facts of the present case, it appears that the learned Sessions Court in the order impugned has not mentioned any reason whatsoever as to why the CD in question could not be supplied to the accused. Under such circumstances, this Court more particularly in view of the position of law emerging from the observations quoted hereinabove is of the considered opinion that copy of the CD since it was being relied upon by the prosecution ought to have been given to the accused.

17. In so far as the issue of admissibility of the CD, since the CD being an electronic evidence could be proved only in accordance with the procedure prescribed under Section 65B of the Indian Evidence Act which deals with admissibility of electronic record.

Sections 65A and 65B of the Indian Evidence Act are reproduced as under:

65A. Special provisions as to evidence relating to electronic record- The contents of electronic records may be proved in accordance with the provisions of Section 65B.]

[65B. Admissibility of electronic records.--(1) Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

computer shall be construed accordingly.

(4) In any proceedings where it is desired 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.

(5) For the purposes of this section,--

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.--For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

18. Law with regard to admissibility of electronic evidence has been explained by the Supreme Court in case of Anvar PV vs. P.K. Basheer &

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

Ors. reported in 2014 (10 ) SCC 473. Relevant observations of the Supreme Court are quoted hereinbelow:

"15. 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

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

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

17. 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.

18. 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,

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

as the law now stands in India.

19. 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 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.

20. 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.

21. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[1], a two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph-150 as follows:

"150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-

providing company can be led in evidence through a witness who can identify the signatures of the certifying

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and

65. It may be that the certificate containing the details in sub- section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65." It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.

22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

23. The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.

24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."

18.1 In a later decision in case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal(supra), the Supreme Court while reconsidering and overruling the judgement in case of Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 had been pleased to modify the observation of the Supreme Court in paragraph no. 24 in case of Anvar PV vs. P.K. Basheer & Ors. (supra). Paragraphs nos. 73.1 and 73.2 of the aforesaid decision read as under:

"73. The reference is thus answered by stating that:

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

73.1 Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down th law correctly. Also, the judgment dated 03.04.2018 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as Shafhi Mohd. v. State of H.P., do not lay down the law correctly and are therefore overruled.

73.2 The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in para 24 in Anvar P.V. (supra) which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited."

19. The Supreme Court in above two cases has laid down the law with regard to Section 65B of the Indian Evidence Act more particularly with regard to admissibility of document i.e electronic record and further with regard to the conditions which are to be satisfied in any proceedings pertaining to the electronic record where statements is to be given.

20. The Supreme Court has also clarified that while the evidence relating to electronic record under Section 65A and 65B of the Indian Evidence Act being special provision, would hold field insofar as the aspect covered by it

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

and whereas the general law of secondary evidence under Section 63 read with Section 65 of the Indian Evidence Act shall yield to the special provision.

21. In so far as the facts of the present case are concerned, it appears that the learned Trial Court had given tentative exhibit number to the CD and thereafter give it Exh. no. 52., relying upon the decision of the Supreme Court in case of Bipin Shantial Panchal( supra). It thus appears that the procedure as required under Section 65B of the Evidence Act has not been followed more particularly as per the law laid down by the Supreme Court in case of Anvar PV vs. P.K. Basheer & Ors as modified by Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal(supra)

22 In case of Bipin Shantilal Panchal (supra), the Supreme Court was concerned with an issue where the trial court would decide any objection with regard to the admissibility of any material in evidence which would result in holding up of the trial. The observations of the Supreme Court are quoted hereinbelow at para 13, 14, 15, and 16.

"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."

23. In the considered opinion of this Court on facts of the instant case the procedure as enumerated in Bipin Shantial Panchal(supra) would be required to be invoked inter alia if there is an objection raised with regard to the admissibility of the electronic evidence under Section 65B of the Indian Evidence Act. At the same time as observed herein-before the learned Sessions Court has not given any reason as to why the document, CD should not be given to the applicants herein, original accused. It is only after the original accused are given a copy of the document, that the Court would hear any objection regarding admissibility of the said document is evidence.

24. The position of law that emerges from the law laid down by the Supreme Court in the judgements quoted above with reference to the present case can be summarized as under:

[1] Right of accused to fair trial as enshrined in Article 21 of the Constitution of India and the mandate of Section 207 of the Cr.P.C. requires that the accused in a criminal trial should be furnished with all the material which the prosecution proposes to use against the accused, subject to the limitation as found in Section 207 itself.

[2] Documentary evidence by way of electronic record can be admissible only upon fulfillment of the conditions and procedure as set out in Section 65B of the Evidence Act.

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

[3] Procedure as prescribed by the judgement of Supreme Court in case of Bipin Shantilal Panchal v/s State of Gujarat (supra) should be resorted to whenever an objection is raised during the stage of taking evidence, with regard to admissibility of any material or item.

24.1 Thus considering the impugned order of the Sessions Court in light of the law laid down by the Supreme Court in this regard, as discussed above, it becomes clear that the Sessions Court had committed an error by not supplying copy of the document- CD to the accused before deciding on its admissibility and following the procedure as set out in case of Bipin Shantilal Panchal (supra).

25. In view of the discussion, observations and finding recorded by this Court hereinabove the impugned order passed below Exh. 54 dated 03.08.2013 in Sessions Case No 152 of 2013 pending before the learned Principal District and Sessions Judge at Dahod is hereby quashed and set aside and following directions are passed.

(1) The CD in question given Exh. No. 52 shall be de- exhibited.

(2) A copy of the CD shall be provided to the accused. (3) Admissibility of the CD in evidence would be permissible after following the provisions of Sections 65A and 65B of the Indian Evidence Act which has been explained thoroughly by the Supreme Court in case of Anvar P.V. and Arjun Panditrao Khotkar(supra).

(4) In case of objection with regard to

R/SCR.A/2477/2013 CAV JUDGMENT DATED: 14/06/2021

admissibility of the CD, the Sessions Court shall follow the procedure as laid down by the Supreme Court in case of Bipin Shantial Panchal(supra).

(5) Since the Sessions Case in question is of the year 2013, the Sessions Court concerned shall endeavour to complete the trial without any further delay.

With the aforesaid observations and directions the present petition succeeds. Rule is made absolute to the aforesaid extent.

sd/-

(NIKHIL S. KARIEL,J)

niru