Rajasthan High Court - Jodhpur

Sidhanth Singh Charan vs State Of Rajasthan on 6 December, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 7206/2022

Sidhanth Singh Charan S/o Shri Bahadur Singh, Aged about 28 Years, R/o Badi, P.S. Raypur, At Present 7-J-14, Chandra Shekher, Azad Nagar, Bhilwara, P.S. Pratap Nagar, Bhilwara.

----Petitioner Versus

1. State Of Rajasthan, Through P.P

2. Garima Jain D/o Suresh Chandra, R/o House No.2 C 21 R.C. Vyas Colony, P.S. Subashnagar, District Bhilwara.

                                                                     ----Respondents



   For Petitioner              :    Mr. Abhishek Charan
   For Respondents             :    Mr. Vikram Sharma, P.P.
                                    Mr. Kaluram Bhati
                                    Ms. Garima Jain - In Person

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reportable Reserved on 02/12/2022 Pronounced on 06/12/2022

1. This Criminal Misc. Petition under Section 482 Cr.P.C. has

been preferred claiming the following reliefs:-

"It is, therefore, prayed that this misc. petition may kindly be allowed and the order dated 30.09.2022 passed by the Learned Addl. Session Judge, Women Atrocities Act Cases, Bhilwara in sessions case no. 77/2019 may kindly be quashed and set aside and application/certificate u/s 65 b of the evidence act filed by the petitioner for taking on record the documents mentioned therein may kindly be allowed.

Any other appropriate order which this Hon'ble Court deem just and proper may kindly be passed in favour of the petitioner."

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2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that the complainant-prosecutrix

submitted a typed report alleging therein that since the past 2

years, to the filing of such report, she was visiting the Bhilwara

Court premises, and that the petitioner offered her legal

assistance and obtained her mobile phone number. On such

pretext, one day the petitioner visited her house and offered her

some 'prasad', after consuming the same, she became

unconscious, and thereafter, the petitioner established physical

relations with her, thereby violated her person. The petitioner had

also made a video of the same, and threatened the prosecutrix,

stating that he would upload the said video, online. It was further

alleged that the petitioner had promised to marry the prosecutrix

and also took some money and ornaments from her on such

promise, and that not only the petitioner but also other family of

his threatened and assaulted her. Upon receipt of such report, a

case was registered, subsequent thereto a charge-sheet was filed

for the offences under Sections 323, 376(2)(n), 384 & 354 IPC.

3. Learned counsel for the petitioner submitted that an

application was filed under Section 65B of the Evidence Act, 1872

on behalf of the petitioner, to place on record screenshots of

conversations on 'Whatsapp Messenger' between the prosecutrix

and the petitioner, certain photographs sent to the petitioner by

the prosecutrix and some other phone call recordings of the

petitioner and the prosecutrix, along the requisite certificate as

required under the said Section, which was sought to be placed on

the record before the learned Court below; but the said application

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was rejected by the learned court below vide the impugned order

dated 30.09.2022.

4. Learned counsel for the petitioner further submitted that the

impugned order is bad in the eye of the law as the said application

submitted was in accordance with law, and that even in the case

of defect/irregularity the same is curable, as held by the Hon'ble

Apex Court in the case of Sonu @ Amar vs. State of Haryana

(2017) 8 SCC 570.

5. Learned counsel for the petitioner also submitted that at the

time of filing of the charge-sheet against the petitioner, call details

of the petitioner were collected by the concerned investigating

agency, however the same was not filed along with the said

charge-sheet, despite the fact that the petitioner had also supplied

copies of the same to the investigating agency.

6. Learned counsel for the petitioner further submitted that the

digital evidences sought to be brought on the record are essential

for a fair adjudication, during the trial going on before the learned

Court below, and that therefore, the impugned order ought to be

quashed and set aside, while allowing the application under

Section 65B of the Act of 1872, as preferred by the petitioner.

7. Learned counsel for the petitioner also placed reliance on the

judgment rendered by the Hon'ble Apex Court in the case of

Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal &

Ors. (2020) 7 SCC 1.

8. On the other hand, learned Public Prosecutor appearing on

behalf of the respondent-State, as well as learned counsel for the

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complainant appearing with the complainant present in person,

opposed the present petition and submitted that the learned Court

below has rightly passed the impugned order finding that the

certificate so produced before it, was not in compliance with the

provision of law as contained in Section 65B of the Act of 1872.

9. Heard learned counsel for the parties as well as perused the

record of the case and the judgments cited at the Bar.

10. This Court observes that the impugned dated 30.09.2022,

rejecting the Certificate under Section 65B of the Act of 1872,

states that the certificate did contain the necessary particulars,

viz. Mobile phone number of the petitioner nor from which mobile

phone number the messages in question were received, etc., as

mandated by the provision of law contained in the aforesaid

Section.

11. This Court further observes that the law with respect to

submission of a Certificate under Section 65B of the Act of 1872 is

settled by the Hon'ble Apex Court in the case of Sonu @ Amar

(supra), which was reiterated and further clarified, in the case of

Arjun Panditrao Khotkar (supra).

For the sake of brevity, the relevant portion of the said judgment

is reproduced hereinunder:-

"We may hasten to add that Section 65B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. (supra), this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or

(5 of 6) [CRLMP-7206/2022]

in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the Accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant Sections of the Code of Criminal Procedure.

...

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 Code of Criminal Procedure 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-discretion to be exercised by the Court in accordance with law.

12. This Court thus observes that the learned Court below, vide

the impugned order, has rightly held that the certificate in

question, as preferred by the petitioner, was not submitted in

(6 of 6) [CRLMP-7206/2022]

compliance with the law. However, in view of the judgments

referred to hereinabove, such a defective certificate may be

curable at the instance of the concerned Court, depending on the

merits of the case.

13. Adverting to the facts and circumstances of the present case,

this Court finds that the documents sought to be brought on the

record by the petitioner would be crucial to his defence, and thus,

it would be in the interest of justice to grant the petitioner an