Karnataka High Court
Sri G M Kumar vs Sri Kishan Hegde on 4 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 470 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4 TH
DAY OF APRIL, 2024
R
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 470 OF 2024
BETWEEN:
1. SRI G.M. KUMAR
AGED ABOUT 51 YEARS,
S/O GANGADARAPPA
NO.32/1-2
CRESCENT TOWER,
CRESCENT ROAD,
HIGH GROUND,
BENGALURU - 560001.
...PETITIONER
(BY SRI S. BALAKRISHNAN, ADVOCATE)
AND:
1. SRI KISHAN HEGDE
AGED ABOUT 48 YEARS,
Digitally signed S/O K.R.HEGDE,
by SHARANYA T
Location: HIGH R/AT FLAT NO.401
COURT OF ZEN GARDEN, AJJARKADU,
KARNATAKA
UDUPI - 576 101
...RESPONDENT
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY THE
APPELLANT COURT IN CRL.A.NO.58/2023 DATED 12.03.2024
ON THE FILE OF PRL. DISTRICT AND SESSIONS JUDGE AT
UDUPI BY ALLOWING THIS APPEAL.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 470 of 2024
ORDER
This matter is listed for admission and I have heard the
learned counsel for the petitioner.
2. In this revision petition, the petitioner has prayed
this Court to set aside the order passed by the First Appellate
Court rejecting the application filed under Section 391(2) read
with Section 207(V) of Cr.P.C. The prayer made in the said
application is with regard to direct the respondent-complainant
to produce mobile handset with its SIM card, memory card/
chip through which Ex.P1-CD is allegedly retrieved.
3. It is contended that the alleged defamatory
statement was said to be telecasted on 29.03.2017 and
30.03.2017. But, on 30.03.2017 happened to be on Ugadi
Festival. The Anchors of the TV channels used to wear
traditional or ethnic dresses on the said date. But in the CD
produced by the respondent, the Anchor is found wearing a suit
and tie. Further, the respondent in the Certificate under Section
65B of the Evidence Act appended to the print out of Ex.P1,
contended that the data was stored in his mobile phone having
No.9845239894 i.e., Apple-7 model. But the mobile phone is
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not produced with its SIM card and memory chip to show that
the alleged video clipping was telecasted on 29.03.2017 and
30.03.2017. Further, the respondent in his cross-examination
has admitted that the said mobile phone is in the possession of
his daughter at present staying in Canada. Hence, there is no
difficulty for the respondent to procure the same and produce
before the Court. It is further contended that the appeal
proceedings being continuation of the Trial Court, the Appellate
Court can record additional evidence by calling the parties
before the Court, summon additional documents and dispose of
the appeal based on the additional evidence. This is also
supported by many of the judgments of the Hon'ble' High Court
of Karnataka and the Hon'ble Supreme Court of India. Hence,
prays to allow the application.
4. This application was resisted by the respondent by
filing statement of objections contending that the same is not
maintainable either in law or on facts. Only to delay the
disposal of the case, this petition is filed without any proper
reasons. Admittedly, the defamatory news was telecasted on
29.03.2017 and 30.03.2017. But, the photos produced by the
appellants with the petition is of the telecast dated 30.03.2017
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only. Moreover, at the initial stage, the appellants have
approached the Hon'ble High Court of Karnataka and Hon'ble
Supreme Court of India to quash the proceedings against him.
After being unsuccessful in his efforts, he had faced the trial. It
is also contended that the appellants have not at all raised any
such matter or suggestion to that effect in the cross-
examination of the respondent before the Trial Court. Now, at
this belated stage, the appellants cannot make use of such
manipulated photos and seek for leading further evidence by
summoning new documents. As such, the petition filed at this
stage for adducing further evidence does not survive and
sought for rejection of the same.
5. The First Appellate Court also formulated the point
whether the respondent needs to be directed to produce his
mobile, namely Apple-7 with SIM card No.9845239894 and
memory chip at this stage. The First Appellate Court, having
perused the records, observed that the respondent had
retrieved the data with regard to telecasting of alleged
defamatory news item on 29.03.2017 and 30.03.2017 from his
mobile. The video clippings in the CD at Ex.P1 discloses that
the Anchors were wearing suit and tie i.e., western attire. The
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Court also taken note of the grounds which have been urged
and formed the opinion that 30.03.2017 happens to be the day
of Ugadi Festival. But admittedly, in the petition itself, the
appellants had categorically contended that news item was said
to be telecasted on 29.03.2017 and 30.03.2017. If the news
item was telecasted on 29.03.2017 then telecast on
30.03.2017 was a repeat telecast. Hence, the contention of the
appellants that the Anchor would be wearing ethnic dress does
not hold any water.
6. The First Appellate Court also made an observation
that without laying any foundation, the appellants now cannot
file this petition calling for the same and further observed that
appellants have not made any efforts to produce the entire
news items that were telecasted on 29.03.2017 and
30.03.2017 before the Trial Court during the trial. Further the
Court was of the opinion that no doubt, the appellants have
categorically contended that they are not the Editors or persons
responsible for telecasting of news item in B TV news Channel.
But the appellants had not at all contended that they are in no
way concerned to TV channel in the cross-examination of
P.W.1. Further, the First Appellate Court also, while rejecting
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the application was of the opinion that Ex.P1 came to be
marked before the Trial Court after it was displayed in the open
Court. At that time, no questions were asked regarding the
clothes worn by the news Anchors. Even before this Court,
with the consent of the appellants and the respondent, the
contents of Ex.P1 was viewed in the open Court. Hence, for the
reasons discussed, this Court is of the opinion that in the
absence of setting up a specific defence before the Trial Court,
the appellants now cannot come up with this petition calling for
production of documents or mobile phone from the respondent.
Moreover, the respondent had produced the video clipping of
the alleged telecasted news portion along with Certificate under
Section 65B of Indian Evidence Act. When that is so, at this
stage, the respondent cannot be directed to produce the mobile
phone as sought by the appellants.
7. Learned counsel for the petitioner would
vehemently contend that if the mobile Chip/SIM is not
produced, there are chances of morphing the same and no
opportunity was given to effectively cross-examine the witness.
Learned counsel would further submit that an application was
filed before the Trial Court to recall the witness under Section
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311 of Cr.P.C. and the same was also rejected. Learned
counsel also brought to notice of this Court the order sheet of
the Trial Court in C.C.No.888/2017. On perusal of the order
sheet of the Trial Court, it discloses that a time bound direction
was given to the Trial Court to dispose of the case in
Crl.P.No.6027/2022 and three months time was granted to
dispose of the same and the said order was received by the
Trial Court on 30.01.2023. The order sheet also discloses that
the complainant was examined on 27.02.2023 immediately
after the direction was given by this Court and on 07.03.2023,
completed his evidence and produced Certificate under Section
65B of the Evidence Act along with an affidavit to that extent.
Further, the learned counsel for the accused sought time on
07.03.2023 and 14 days time was granted to cross-examine
the witness even after producing the Certificate under Section
65B of evidence Act and case was adjourned to 21.03.2023 and
once again, time was sought and the matter was adjourned to
28.03.2023. On 28.03.2023, the matter was adjourned to
03.04.2023 and 03.04.2023 was declared holiday. On
05.04.2023, accused No.1 was absent and EP was filed, the
Trial Court observed that counsel for accused prays to adjourn
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the matter till 19.04.2023 due to his busy schedule and having
important medical negligence case at Davanagere Court. The
learned counsel for the complainant seriously resisted the
above submission and contended that the present matter is
time bound matter, as such prays to reject the above
submission and adjourned the matter for further cross of
P.W.1, finally as a last chance to 06.04.2023. Once again on
06.04.2023, the accused Nos.1 to 3 were absent and EP was
filed and the same was also rejected and further cross-
examination of P.W.1 was taken as Nil.
8. Learned counsel for the appellant would submit that
no sufficient opportunity was given. Learned counsel in support
of his argument relied upon the judgment of the Apex Court in
P. GOPALKRISHNAN ALIAS DILEEP VS. STATE OF KERALA
AND ANOTHER reported in (2020) 9 SCC 161 and brought to
notice of this Court Para No.50, wherein an observation is made
that the contents of the memory card/pen-drive being
electronic record must be regarded as a document. If the
prosecution is relying on the same, ordinarily, the accused
must be given a cloned copy thereof to enable him/her to
present an effective defence during the trial. However, in cases
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involved issues such as of privacy of the complainant/witness
or his/her identity, the Court may be justified in providing only
inspection thereof to the accused and his/her lawyer or expert
for presenting effective defence during the trial. The Court may
issue suitable directions to balance the interests of both sides.
Learned counsel referring this judgment would vehemently
contend that it is necessary to give direction to the respondent
to produce mobile handset with its SIM card, memory card/
chip.
9. Having heard the learned counsel for the petitioner
and on perusal of the impugned order and also considering the
order sheet of the Trial Court, it is very clear that complainant
was examined on 07.03.2023 and while further examination,
the Certificate under Section 65B of Evidence Act along with
affidavit is produced and opportunity is given to cross-examine
the witness and even time bound limit of a period of three
months 14 days time was given from 07.03.2023 to cross-
examine the witness and adjourned the matter to 21.03.2023
from 07.03.2023 and thereafter also, for further cross of P.W.1
at the request of the learned counsel for the accused, again
adjourned the matter to 28.03.2023 from 21.03.2023 and once
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again on 28.03.2023, when the witness was present, learned
counsel for the accused filed memo stating that on the previous
hearing one person by name Mahendra was accompanied by his
gunman present before the Court during the course of cross-
examination of P.W.1. The said Mahendra has caused
interference and his act amounts to contempt of Court, as such,
prayed to take appropriate action against him as per law. The
Trial Court has passed a detailed order with regard to the
memo also.
10. Having taken note of the direction, the Trial Court
also taken note of the fact that the matter is a time bound
matter and directed to proceed with the matter and once again
deferred the matter for further cross of P.W.1. Once again,
further cross-examination of P.W.1 was deferred to 03.04.2023
and on 03.04.2023, it wad declared as a holiday and matter
was adjourned to 05.04.2023 and on 05.04.2023, P.W.1 was
further cross-examined and once again the counsel sought time
till 19.04.2023 on the ground that due to busy schedule and
having important medical negligence case at Davanagere Court
and the same was a time bound matter, considered his request.
As such, requested to reject the above submission. However,
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counsel was given adjournment and listed the matter for next
date and on the next date also, all the accused were absent
and EP was filed and the same was rejected.
11. Having taken note of the proceedings conducted
before the Trial Court and also when the witness was cross-
examined before the Trial Court on different occasions and
when sufficient opportunity was given by the Trial Court, now
the appellant cannot contend that no opportunity was given to
cross-examine the P.W.1. It is also important to note that
when Certificate at Ex.P2 is also produced along with Ex.P1-CD,
the same is in compliance with Section 65B(4) of the Indian
Evidence Act. No doubt, the counsel relied upon the judgment
of the Apex Court in the case of P. GOPALKRISHNAN ALIAS
DILEEP referred supra, it is very clear with regard to furnishing
of card/pen drive i.e., the electronic record must be regarded
as a document. The said judgment will not come to the aid of
the petitioner considering factual aspects of the case.
12. The First Appellate Court also while passing an
order made an observation that with regard to the contention
which has been taken in the application, no such question was
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put to PW1 during the course of cross-examination and new
grounds are urged before the First Appellate Court with regard
to production of mobile. The First Appellate Court also taken
note that when Ex.P1 was marked before the Trial Court and
the same was displayed in the open Court and at that time also
no question was asked regarding the clothes worn by the news
anchors. These grounds which have been raised in the First
Appellate Court for the first time and new defence cannot be
set up in appeal. The First Appellate Court made an observation
that with the consent of the appellants and respondent, the
contents of Ex.P1 was viewed in the open Court and taken note
of no such defence was set up before the Trial Court and now,
without setting up of such defence before this Court, before
this Court, the appellants cannot come up with this petition
calling for production of documents or mobile phone from the
respondent.
13. It is also important to note that in view of bringing
new enactment to the IT Act, 2000, considering the electronic
evidence, relevant amendments are also made to the Indian
Evidence Act. It is also important to note with regard to
electronic evidence is concerned, when issue was raised with
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regard to production of Certificate under Section 65B(4), the
said issue was dealt in STATE (NCT OF DELHI) VS. NAVJOT
SANDHU reported in (2005) 11 SCC 600 wherein held that
a person who is having acquaintance with the material itself is
enough to consider the same. But the Apex Court in the
judgment in ANWAR P.V. VS. P.K. BASHEER AND OTHERS
reported in (2014) 10 SCC 473 held that Certificate under
Section 65B(4) is mandatory. Later, in the judgment of SONU
ALIAS AMAR VS. STATE OF HARYANA reported in (2017) 8
SCC 570 and SHAFHI MOHAMMAD VS. STATE OF
HIMACHAL PRADESH reported in (2018) 2 SCC 801, the
said principle was diluted. Once again, the matter came up
before the Apex Court in the case of ARJUN PANDITHRAO
KHOTKAR VS. KAILASH KUSHANRAO GORANTYAL AND
OTHERS reported in (2020) 7 SCC 1, when the matter was
referred to the larger bench in view of reported judgment of
same parties in (2020) 3 SCC 216, and the larger bench in
the said judgment also reiterated the principles laid down in
ANWAR P.V's case, wherein it is held that if the prosecution
relies upon the secondary evidence before the Court, the
Certificate under Section 65B(4) is mandatory. In the case on
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hand also it has to be noted that when Ex.P1 was marked
before the Trial Court, certificate also produced therein at Ex.P2
under Section 65B(4). Now, cannot contend the same in the
appeal raising the new contentions and the said fact has been
observed by the First Appellate Court that without raising the
said contention cannot raise the same in the appeal without
foundation.
14. Even in the recent judgment of the Apex Court in
the case of TAQDIR VS. STATE OF HARYANA reported in
(2022) 4 SCC 321 with regard to the admissibility and
production of certification under Section 65B(4) of the Indian
Evidence Act, it is held that when the original hard disk was
produced and the same was marked and same was not
displayed and only certified material was marked and displayed
before the Court and even Apex Court also held that even
original is marked and certified copy i.e., secondary evidence
also was marked and when the secondary evidence is produced
before the Court and the same is not objected and same is
played before the Trial Court, now cannot contend that original
is not displayed and original has to be required to be played
and an opportunity also given to the accused to substantiate
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his case. The production of secondary evidence is permitted
with the certificate under Section 65B(4) of the Indian Evidence
Act.
15. I have already discussed that sufficient opportunity
is given to the accused to cross-examine the witness even
though time bound of three months direction was given to the
Trial Court and for about almost one month time was taken for
cross-examination of PW1 and cross examined him, now cannot
contend that original has not been produced. When certificate is
produced along with Ex.P1-CD and no objection was raised
before the Trial Court. Even the First Appellate Court also held
that while marking of the said document, objection was not
raised and the same cannot be raised at a later stage that too
in the appeal. When such being the case, I do not find any
error in the findings of both the Courts in considering electronic
evidence and the law is settled that the secondary evidence can
be relied upon subject to production of certificate under Section
65B(4) of the Indian Evidence Act. In the case on hand,
certificate is also produced under Section 65B(4) of the Indian
Evidence Act as per Ex.P2 and now cannot contend that the
same is marked and no opportunity was given by the Trial
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Court. The First Appellate Court also rightly rejected the
application filed under Section 391(2) read with Section 207(V)
of Cr.P.C., in passing detailed order that no foundation was
made raising the said defence before the Trial Court. Hence, I
do not find any merit in the revision petition to set aside the
order passed by the First Appellate Court and no grounds are
made out in this revision petition to exercise the revisional
jurisdiction.
16. In view of the discussions made above, I pass the
following:
ORDER
The revision petition is dismissed.
The observation made while disposing of this revision
petition shall not influence the First Appellate Court while
reconsidering the matter on merits.
Sd/-
JUDGE
ST,SN
