Madras High Court
P.Umashankar vs K.M.Niwas on 15 September, 2023
2023:MHC:4336
Crl.O.P.Nos.15985 and 16749 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2023
CORAM :
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.Nos.15985 and 16749 of 2023
and Crl.M.P.Nos.10000 and 10754 of 2023
1. P.Umashankar
2. Thirumathi .. Petitioners
in both Crl.O.Ps
Versus
1. K.M.Niwas
2. M/s.M.P.Shan Tex Private Limited,
Represented by Official Liquidator,
High Court,
Chennai.
Palanisamy (Died) .. Respondents
in both Crl.O.Ps
Prayer in Crl.O.P.No.15985 of 2023 : Criminal Original Petition filed
under Section 482 of the Code of Criminal Procedure, to allow the present
petition and set aside the order passed in Crl.M.P.No.5176 of 2022 in
C.C.No.258 of 2014 by the Fast Track Judicial Magistrate Court, Tirupur.
Prayer in Crl.O.P.No.16749 of 2023 : Criminal Original Petition filed
under Section 482 of the Code of Criminal Procedure, to allow the present
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Crl.O.P.Nos.15985 and 16749 of 2023
petition and set aside the order passed in Crl.M.P.No.5179 of 2022 in
C.C.No.258 of 2014 by the Fast Track Judicial Magistrate Court, Tirupur.
For Petitioners : Mr.Sarath Chandran
(in both Crl.O.Ps) for Mr.A.Shamsudeen Raja
For Respondents : Mr.E.V.Chandru
(in both Crl.O.Ps) for Mr.G.R.Deepak, for R1
COMMON ORDER
These petitions have been filed seeking to set aside the orders passed
in Crl.M.P.Nos.5176 and 5179 of 2022 by the Fast Track Judicial
Magistrate Court, Tirupur.
2. These cases were heard finally on 11.09.2023 and final order was
passed by allowing the petitions and directing the Court below to complete
the proceedings within a period of four weeks in the following terms:-
"These criminal original petitions have
been filed challenging the order passed by the
Court below in Crl.MP.Nos.5176 and 5179 of
2022 in C.C.No.258 of 2014, allowing the
application filed to reopen the case and to recall
PW.1 for marking the certificate u/s.65-B of the
Indian Evidence Act, 1872.
2.When the criminal original petitions
came up for hearing on 31.7.2023, this Court
passed the following order:
These Criminal Original
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Crl.O.P.Nos.15985 and 16749 of 2023
Petitions have been filed challenging
the orders passed by the Court below
allowing the applications filed under
Section 311 of Cr.P.C., to recall P.W.1
and to mark 65B certificate for Ex.P47.
The learned Counsel for the petitioner
is directed to produce the copy of the
deposition of P.W.1. If Ex.P47 has been
marked without the petitioner raising
any objection for the non-filing of 65B
certificate, no useful purpose will be
served in passing any further orders
since the document has already come
in as evidence and the accused person
has missed the bus in not objecting
while marking the electronic evidence.
The law on this issue is settled by the
Hon'ble Apex Court in Sonu Vs. State
of Haryana reported in (2017) 8 SCC
570 and the same has been followed by
the Division Bench of this Court in a
recent judgment in Yuva Raj Vs. State
in Crl.A.(MD).Nos.228 of 2022 etc.,
(batch cases) reported in 2023 SCC
OnLine Mad 3621. The learned
Counsel sought for some time to get the
deposition of P.W.1 and particularly
while marking Ex.P47.
Post this case under the same
caption on 04.08.2023.
3.These petitions were thereafter posted for
hearing on 04.08.2023 and the learned counsel
for the petitioners by pointing out to the
deposition of PW.1 drew the attention of this
Court to the objection that was specifically raised
while marking Ex.P.47 without the same
accompanied by a 65-B certificate.
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Crl.O.P.Nos.15985 and 16749 of 2023
4.Heard.Mr.Sarath Chandran, learned
counsel for the petitioner and Mr.G.R.Deepak,
learned counsel for the 1st respondent.
5.The short issue that arises for
consideration in these petitions is as to whether
the Court below was right in allowing the
applications and reopening the case for recalling
PW.1 to mark the 65-B Certificate for Ex.P.47.
6.There is no dispute with regard to the fact
that Ex.P-47 is an electronic record. In the light
of the judgement in Arjun Panditrakhotkar v.
Kailash Kushanraogorantyal and Other reported
in (2020) 5 CTC 200, a certificate u/s.65-B(4) is
a condition precedent to the admissibility of
evidence by way of an electronic record. This
judgement has reiterated the earlier view taken
by the Apex Court in PV Anwar Case.
7.When Ex.P-47, which is an electronic
record was marked through PW.1, specific
objection was raised on the side of the petitioners
regarding the admissibility since it was not
accompanied with a certificate u/s.65-B(4) of the
Evidence Act. It is apparent from the order
passed by the Court below that the final
arguments were heard from both sides and the
case was at the stage of pronouncing final
judgment on 20.6.2022. At this stage, the
applications came to be filed by the respondent to
reopen and to recall PW.1 for marking the
certificate u/s.65-B(4) for Ex.P.47. It is true that
even if the certificate is not marked along with the
electronic record, the same can be marked
subsequently. This issue was also dealt with by
the Apex Court in Arjun Panditrao Khotkar
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Crl.O.P.Nos.15985 and 16749 of 2023
referred supra and for proper appreciation, the
relevant portion is extracted hereunder:
“57. Subject to the caveat laid
down in paragraphs 50 and 54 above,
the law laid down by these two High
Courts has our concurrence. So long
as the hearing in a trial is not yet over,
the requisite certificate can be directed
to be produced by the learned Judge at
any stage, so that information
contained in electronic record form can
then be admitted, and relied upon in
evidence.”
8.It is clear from the above that the
Certificate can be produced before the Trial
Court at any stage, so long as the hearing in a
trial is not yet over. To understand as to when
the trial gets over, a reference can be made to
Section 353 Cr.PC. On a plain reading of this
provision, it is clear that the judgement in every
trial is pronounced after the termination of the
trial. In other words, a case reaches the stage of
judgement only after the termination of the trial.
In this case, the trial stood terminated the
moment the Court below reserved the case for
final judgement on 20.6.2022. In the light of the
judgement of the Apex Court, a Certificate cannot
be brought in after the trial is over. In view of the
same, the Court below was not right in
entertaining the applications filed by the
respondent to reopen and to recall PW.1 for
marking the 65-B Certificate. The Court below
did not properly appreciate this position of law
and had proceeded further to allow the
applications and permitted the respondent to
mark the Certificate u/s.65-B(4) of the Indian
Evidence Act, 1872.
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Crl.O.P.Nos.15985 and 16749 of 2023
9.The upshot of the above discussion is that
the Order passed by the Court below in
Crl.MP.Nos.5176 and 5179 of 2022 dated
14.6.2023 is hereby set aside. It is made
abundantly clear that the Order passed in these
quash petitions confine itself only to the
maintainability of the applications filed by the
respondent to reopen the case after it was
reserved for judgement for marking Certificate
u/s.65-B(4) of the Indian Evidence Act, 1872. All
the other issues that are raised by either of the
parties before the Court below will be considered
on its own merits and in accordance with law and
this Order will not have any bearing.
10.In the result, these criminal original
petitions stand allowed and there shall be a
direction to the Court below to complete the
proceedings in C.C.No.258 of 2014, within a
period of four weeks from the date of receipt of
copy of the order. Consequently, connected
miscellaneous petitions are closed."
3. On the next day (i.e.,) on 12.09.2023, a mention was made by the
learned Counsel for the petitioners to the effect that the view taken in these
petitions is contrary to the view taken by the learned Single Judge of this
Court in Gunasekaran Vs. State reported in 2007 Cri.L.J. (NOC) 731
(MAD.). Therefore, the learned Counsel submitted that the matter may be
posted under the caption "For Clarification". Accordingly, the case was
posted under the caption "For Clarification" today.
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Crl.O.P.Nos.15985 and 16749 of 2023
4. The learned Counsel for the petitioners fairly submitted that the
contra view taken by another Single Judge in Gunasekaran's case (referred
supra) was not brought to the notice of this Court. That apart, the learned
Counsel also cited three more judgments of the High Court of Rajasthan, the
High Court of Karnataka and also the Division Bench of the High Court of
Kerala where contra view has been taken.
5. The learned Counsel for the respondents brought to the notice of
this Court the judgment of the Constitution Bench of the Hon'ble Apex
Court in Sukhpal Singh Khaira Vs. The State of Punjab in Crl.A.No.885
of 2019, dated 05.12.2022. The learned Counsel specifically placed reliance
upon paragraph Nos.20 to 27 of the judgment. It was submitted that as per
the Constitution Bench judgment, the trial is concluded only after the
conviction and sentence is pronounced through a judgment. Till then, the
trial is deemed to be continuing.
6. In the light of the above judgments and particularly, the judgment
of the Constitution Bench in Sukhpal Singh Khaira's case (referred supra),
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Crl.O.P.Nos.15985 and 16749 of 2023
the order passed by this Court on 11.09.2023 has to be necessarily reversed.
Since the order was not signed by this Court, it will not amount to reviewing
the earlier order passed on 11.09.2023.
7. The conspectus of the above discussion is that the order passed by
the Court below in Crl.M.P.Nos.5176 and 5179 of 2022 in C.C.No.258 of
2014, dated 14.06.2023 is hereby sustained and these Criminal Original
Petitions are dismissed. There shall be a direction to the Court below to
complete the proceedings in C.C.No.258 of 2014 within a period of four
weeks from the date of receipt of a copy of this order. Consequently,
connected miscellaneous petitions are closed.
15.09.2023
Index : yes
Speaking order
Neutral Citation : yes
grs
To
The Fast Track Judicial Magistrate Court,
Tirupur.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.15985 and 16749 of 2023
N.ANAND VENKATESH, J.
grs
Crl.O.P.Nos.15985 and 16749 of 2023
and Crl.M.P.Nos.10000 and 10754 of 2023
15.09.2023
https://www.mhc.tn.gov.in/judis
