State represented by Inspector of Police, Central Bureau of Investigation, Special Crime Branch, A Wing, IIird Floor, Rajaji Bhavan, Besant Nagar, Chennai - 600090 v. Accused Nos. 1 to 11, 13, 14, 16, 18, 19 and the son of the victim

``` CR ``` ``` HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944 ``` ``` CRL.MC NO. 4551 OF 2022 ``` ``` [TO QUASH ANNEXURE-5 ORDER OF THE COURT OF III ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(SPE/CBI)-1, ERNAKULAM IN CRL.MP ``` ``` NO.576/2021 IN S.C.NO.725/2015 ] [RC NO.08(S)/2007/SCB/CBI/CHENNAI (CRIME NO.783/2002 OF PERUMBAVOOR POLICE STATION] ``` ## `PETITIONER/COMPLAINANT:` ``` STATE REPRESENTED BY INSPECTOR OF POLICE, CENTRAL BUREAU OF INVESTIGATION SPECIAL CRIME BRANCH A WING, IIIRD FLOOR, RAJAJI BHAWAN, BESANT NAGAR, CHENNAI - 600090. (WRONGLY MENTIONED AS STATE OF KERALA IN THE JUDGMENT) PIN - 600090 ``` ``` BY ADV S.MANU, DEPUTY SOLICITOR GENERAL OF INDIA & ADV. SUVIN R. MENON, CENTRAL GOVERNMENT COUNSEL ``` ## `RESPONDENTS/ACCUSED NOS.1 TO 11, 13,14,16,18,19 & SON OF THE` ## `VICTIM MURDERED:` ``` 1REV. FR. VARGHESE THEKKEKARA (AL), AGED 60 YEARS S/O. T.M. BABY THEKKEKARA, RESIDENT OF THEKKEKARA HOUSE, NEAR KSRTC BUS STAND, PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA. PIN - 683547 2JOY VARGHESE (A2), AGED 61 YEARS S/O. M.O. VARGHESE, NOW RESIDING AT MOOZHAYIL HOUSE, SUB JAIL ROAD,ALUVA, ERNAKULAM DISTRICT, KERALA , PIN - 683101 3ALIAS.K.MATHEW (A3) AGED 47 YEARS S/O. K.V. MATHAI, NOW RESIDING AT KUNJITTIKUDI HOUSE, PERUMBAVOOR, ``` ``` Crl.MC No.4551/2022 ``` ``` 2 ERNAKULAM DISTRICT, KERALA, PIN - 683547 4ABRAHAM POULOSE @ ELDHOSE (A4 AGED 48 YEARS S/O. POULOSE, NOW RESIDING AT THADATHIL HOUSE, ALLAPRA.P.O, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA PIN - 683547 5A.Y. THAMBI (A5), AGED 50 YEARS S/O. YACOB, NOW RESIDING AT ARACKADAYIL HOUSE, ALLAPRA.P.O, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, KERAL, PIN - 683547 6ABDUL VAHAB.M.M (A6 AGED 47 YEARS S/O. M.S. MOHAMMED, NOW RESIDING AT MADATHUMPADI VEETIL, ALLAPRA.P.O, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA, PIN - 683547 7SAJIN @ SAJIMON (A7), AGED 42 YEARS S/O. P.K. BABY, NOW RESIDING AT PARAPURAMVEETTIL HOUSE, ALLAPRA, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA PIN - 683547 8V.N. PRATHEESH (A8), AGED 44 YEARS S/O. NARAYANAN PILLAI, NOW RESIDING AT VAZHAPPILLY HOUSE, ALLAPRA.P.O, PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA ,PIN - 683547 9N.G. PRASAD (A9), AGED 48 YEARS S/O. LATE GOVINDAN, NOW RESIDING AT NACKLIKATTUVEETIL, ALLAPRA.P.O., VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA. PIN - 683547 10P.P. TONY (A10), AGED 49 YEARS S/O. PAULOSE, NOW RESIDING AT PERAPADAN HOUSE, BEHIND LAXMI MILLS, SRINARAYANA NAGAR, PULLAZHIKARA, PULLAZHI.P.O, THRISSUR DISTRICT, KERALA PIN - 680012 11JAISON.K.J (A11) AGED 41 YEARS S/O. JOSE, NOW RESIDING AT KATTAIKAKATHU HOUSE, SHOUBARDA NAGAR, NELLIKUNNU.P.O, KURLA, THRISSUR DISTRICT, KERALA, PIN - 680005 12SREEVALSON.P.J. @ VALSON (A13) ``` ``` Crl.MC No.4551/2022 ``` ``` 3 ``` ``` AGED 43 YEARS S/O. JAYAN, NOW RESIDING AT PULIKETHRA HOUSE, PULLAZHI, AYYANTHOLE, THRISSUR DISTRICT, KERALA., PIN - 680012 13P.D. ROY @ ELAMKU ROY (A14 AGED 53 YEARS S/O. LATE DEVASSY, NOW RESIDING AT PALLIPARAMBIL HOUSE, ANCHERRY.P.O, KACHERRY DESOM, THRISSUR DISTRICT, KERALA PIN 680006 14K.R. ANAND @ SIVANANDAN (A16 AGED 38 YEARS,S/O. RAJAN, NOW RESIDING AT KOVILPARAVEETIL, CHITTILAPPILLY, THRISSUR DISTRICT, KERALA. PIN - 680545 15SIVAN.A.R (A18), AGED 48 YEARS S/O. RAMAN, NOW RESIDING AT ANATTIL HOUSE, CHOWARA KALADY, ERNAKULAM, KERALA. PIN - 683571 16JOSEMON C.V. @ JOSHI (A19 AGED 51 YEARS,S/O. LATE C.O. VARGHESE, NOW RESIDING AT CHEMBAKASERRY HOUSE, NAZRETH ROAD, ALUVA, ERNAKULAM, KERALA. , PIN - 683101 17TILSON VARGHESE AGED 48 YEARS, S/O LATE T.M.VARGHESE, TOMBRA HOUSE,VATTAKKATTUPADY,PERUMBAVOOR-683547. [IMPLEADED AS PER ORDER DATED 28.9.2022 IN CRL.MA NO.2/2022 IN CRL.MC NO.4551/2022] BY ADVS. FOR R1 AND R2 BY SHRI.B.RAMAN PILLAI, SENIOR ADVOCATE & ADV. R. ANIL FOR R3 TO R5 BY ADV.RAGHUNATH V.T. FOR R6 TO R9 BY ADV.IEANS C. CHAMAKKALA FOR R10 BY ADV. JOHN S.RALPH FOR R11 BY ADV.V.JOHN SEBASTIAN RALPH FOR R12 TO 14 BY ADV.THOMAS ABRAHAM NILACKAPPILLIL FOR R17 BY ADV. ANIL S.RAJ ``` ``` Crl.MC No.4551/2022 ``` ``` 4 ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 17.01.2023, THE COURT ON 20.01.2023 PASSED THE FOLLOWING: ``` ``` Crl.MC No.4551/2022 ``` ``` 5 ``` ## `O R D E R` ``` The petitioner in this case, is the investigation agency in RC No.08(S)/2007/SCB/CBI/Chennai (Crime No.783/2002 of Perumbavoor Police Station, and now pending before the Court of III Additional Sessions Judge/Special Judge(SPE/CBI)-I, Ernakulam as S.C No.725/2015. The challenge, in this case, is against the Annexure 5 order passed by the learned Sessions Judge by which, an application submitted by the petitioner under section 91 of the Cr.P.C to summon the Nodal Officers of some telecom companies to produce the certificate under section 65B of the Evidence Act, in respect of certain Call Data Records (CDR) of the mobile phones of some of the accused, was dismissed. ``` ``` 2.The facts which led to the filing of the Crl.M.C are as follows: Crime No.783/2002 was originally registered by the Perumbavoor Police, in connection with the murder of one T.M. Varghese @ Malankara Varghese, on 05/12/2002. Initially, the case was investigated by the local police, and ``` ``` Crl.MC No.4551/2022 ``` ``` 6 ``` ``` later the same was handed over to the CBCID. ``` ``` However, the mother of the deceased approached this Court by filing WP(C)No.4271/2006 seeking transfer of investigation to CBI, which was allowed, and on the basis of the direction issued by this Court, the case was re-registered by the CBI as RC No.08(S)/2007/SCB/CBI/Chennai on 05/11/2007. Though a final report was filed by the CBI on 05/05/2010, the Chief Judicial Magistrate, Ernakulam directed a further investigation into the matter. Accordingly, a further investigation was conducted under section 173(8) of the Cr.P.C and a supplementary final report was submitted on 8/11/2022. ``` ``` 3.Earlier, during the investigation by the State Police, the Inspector of Police, Perumbavoor, obtained the CDRs of the mobile phones of some of the accused persons from the Telecom companies concerned. However, the police did not verify the same and did not take steps to obtain a certificate under section 65B of the Evidence Act. Later, when the investigation was transferred to the CBCID, ``` ``` Crl.MC No.4551/2022 ``` ``` 7 the officers concerned did not take any steps in this regard. When the CBI took over the ``` ``` investigation in the year 2007, they verified the call data and found that the 10[th] accused made calls on the accused nos 2, 3, 4 and 7 and witnesses Joy and Joji Mathew on 3/12/2002, 4/12/2002 and ``` ``` 5/12/2002. Even though the then investigation officer of the CBI requested the telecom companies to provide the CDRs with the certification under the section 65B of the Evidence Act, he was ``` ``` informed that, as the CDR was retained only for a period of two years, they are unable to provide the same. Thereafter the trial of the case commenced on ``` ``` 26.11.2021, and the prosecution submitted an application under section 91 of Cr.P.C for the production of certified CDRs from the companies concerned, and thereupon they replied that the CDRs required were not retained by them. Thereafter, the prosecution submitted Crl.MP 576/2022 for directing CW47 and CW49, the Nodal officers of BPL Mobile Cellular Ltd and Escotel Mobile Communications Ltd, ``` ``` Crl.MC No.4551/2022 ``` ``` 8 respectively, who had retrieved the data from the computer system. In the meanwhile, upon getting summons CWs 47 and 49 appeared before the court. CW 47 brought a certification under section 65B and was placed before the court. As the defence objected to the marking of the same, the same was not considered. CW49 stated that he cannot issue ``` ``` the certificate based on his memory alone. ``` ``` 4.Accused personsopposedthesaid ``` ``` application. The objections inter alia were that ``` ``` (1) by filing such an application at the fag end of ``` ``` the trial, the prosecution is filling up the lacunae in the case, (2) since the original CDR is no longer available, the question of certifying the ``` ``` same without verifying the original data is not ``` ``` permissible, (3) such permission for certification, after almost twenty years of retrieving the data would cause prejudice to the accused, particularly because, they would be deprived of the opportunity ``` ``` Crl.MC No.4551/2022 ``` **==> picture [8 x 8] intentionally omitted <==** ``` to get the said data verified through an expert under section 45A of the Evidence Act, (4) Certification under section 65B can be made only if ``` ``` the conditions stipulated in the said provisions are satisfied and as the manner in which the data were retrieved is not discernible from the ``` ``` documents produced, the same cannot be certified ``` ``` without verification of the original data, and (5), ``` ``` by invoking section 91 of Cr.P.C, the witnesses ``` ``` cannot be asked to prepare a document and produce before the court. The said provision can be invoked only to direct the production of documents which is already in existence. ``` ``` 5.After hearing all the parties concerned, ``` ``` the petition submitted by the prosecution was ``` ``` dismissed as per Annexure 5 order dated 18.05.2022 and this Crl.MC is filed by the prosecution challenging the same. ``` ``` 6. HeardSri.Suvin R.Menon, Central Government ``` ``` Counselappearingforthepetitioner, ``` ``` Sri.B.Raman Pillai, the learned Senior Counsel assisted by Advocate R.Anil, appearing for respondents 1 and ``` ``` Crl.MC No.4551/2022 ``` ``` 10 ``` ``` 2, Sri. Raghunath V.T., the counsel appearing for respondents 3 to 5, Sri. Ieans C. Chamakkala, the ``` ``` learned counsel appearing for respondents 6 to 9, Sri.John S. Ralph, the learned counsel appearing ``` ``` for the 10[th] respondent, Sri.V.John Sebastian Ralph, ``` ``` the learned counsel appearing for the 11[th] ``` ``` respondent, Sri. Thomas Abraham, the learned counsel appearing for the respondents 12 to 14, Sri.Anil S. Raj, the learned counsel appearing for the ``` ``` 17[th] respondent. It is discernible from the records ``` ``` that, though notice served to the 15[th] respondent is ``` ``` complete, there is no appearance for him and the ``` ``` notice served upon the 16[th] respondent is returned ``` ``` with an endorsement ‘not known’. However, the ``` ``` learned Deputy Solicitor General of India filed a ``` ``` memo to the effect that he had already served ``` ``` notice to the respondents 11 to 16 through the ``` ``` counsel appearing for them in the Court below. ``` ``` 7. The crucial question that arises for ``` ``` consideration is whether the certification under ``` ``` section 65B of the Evidence Act, can be permitted ``` ``` Crl.MC No.4551/2022 ``` ``` 11 ``` ``` to be prepared and produced before the court, after the lapse of so many years (twenty years) and without verifying the original data, which are irretrievably lost. ``` ``` 8.Before going to the said question, it is profitable to refer to the statutory provisions applicable in this regard. Section 65B was inserted ``` ``` in the Indian Evidence Act, 1872, with effect from 17/10/2000. Since then, the same has become the subject matter of judicial pronouncements on various occasions through landmark judgments. The ``` ``` principles relating to the same evolved through several judicial pronouncements of the Honourable Supreme Court and have undergone a sea change in the recent past. Some of the crucial decisions are State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600), Anvar P.V v. P.K Basheer and others [(2014) 10 SCC 473], Shafhi Muhammed v. State of Himachal Pradesh [(2018) 2 SCC 801], and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and other [(2020) 7 SCC 1]. ``` ``` Crl.MC No.4551/2022 ``` ``` 12 ``` ``` 9. Before going to the discussion regarding the principles laid down by the Honourable Supreme Court, let us examine the statutory stipulations contained in section 65B of the Indian Evidence Act, which reads as follows: ``` ``` “S.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 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 or 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 ``` ``` Crl.MC No.4551/2022 ``` ``` 13 ``` ``` (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 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 subsection it shall be sufficient for a matter to be stated to the best of the ``` ``` Crl.MC No.4551/2022 ``` ``` 14 knowledge and belief of the person stating it. ``` ``` (5) For the purposes of this section, ``` ``` (a) information 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.” ``` ``` 10.As per subsection (1), the information ``` ``` contained in an electronic record, printed on ``` ``` paper, recorded or copied in optical or magnetic media produced by a computer is treated as an ``` ``` admissible document in evidence, without further ``` ``` proof of the original, if certain conditions are ``` ``` satisfied. Sub-section (2) contemplates the ``` ``` conditions, four in number, to be satisfied, which are essentially related to the operation, use and ``` ``` Crl.MC No.4551/2022 ``` ``` 15 ``` ``` maintenance of the computer system as part of the ordinary course of activities regularly carried out and also in relation with the information that was fed into the computer in the ordinary course of the activities. Subsection (3) provides that a ``` ``` combination of computers operating over a period, different computers running in succession over the period etc, are to be treated as a single computer. Subsection (4) provides for the manner and contents of the certification required to be made. It also provides that such certificate has to be made by a person occupying a responsible official position about the operation of the relevant device or management of the relevant activities. ``` ``` 11. Earlier, a two judge bench of the ``` ``` Honourable Supreme Court in Navjot Sandhu (supra) held that, the non-compliance with the requirements of Section 65B of the Evidence Act is not a bar to adduce secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65 of the Act. However, in Anvar P.V (supra), a ``` ``` Crl.MC No.4551/2022 ``` ``` 16 three judge bench of the Honourable Supreme Court, considered the said question, overruled the said legal proposition by holding that, since section 65B of the Evidence Act is a special provision, the ``` ``` general provisions such as section 63 and 65 should ``` ``` yield to the same, in the light of the principles ``` ``` Generalia specialibus non derogant. Thus, it was ``` ``` held that an electronic document cannot be admitted ``` ``` in evidence unless the conditions stipulated in Section 65B are complied with. While arriving at the said conclusion, it was observed by the Honourable Supreme Court in para 22 that “Thus,in ``` ``` the case of CD, VCD chip etc the same shall be ``` ``` accompanied by the certificate in terms of Section ``` ``` 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible’. (underlining is provided to give emphasis). ``` ``` 12. In Arjun Panditrao (supra), another three- ``` ``` judge bench of the Honourable Supreme Court, confirmed the decision inAnvar P.V (supra) with ``` ``` Crl.MC No.4551/2022 ``` ``` 17 ``` ``` the following observations made in para 50, which reads as follows; ``` ``` “50. 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 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” ``` ``` 13. Thus, the legal position that emerges from ``` ``` the above decisions is that compliance with the ``` ``` stipulations in section 65B of the Evidence Act is ``` ``` essential for admitting an electronic record in evidence. However, in this case, the question that arises is whether the prosecution can be permitted ``` ``` Crl.MC No.4551/2022 ``` ``` 18 ``` ``` to get a certification of an electronic record done, in respect of a document which was generated from the computer system twenty years ago, when the original computer system or the original data sought to be produced are not available. The prosecution as well as the defence are relying upon the various observations made by the Honourable Supreme Court inArjun Panditrao (supra). The prosecution also relies on a recent Division Bench judgment of this Court in M.H Faisal and others v. State and others (MANU/KE/1457/2022), wherein, this ``` ``` court by relying upon the observations inArjun Panditrao (supra),permitted the prosecution to produce the certificate under section 65B of the Act, after taking evidence during the appellate stage, while considering the appeal filed against the conviction of the accused. ``` ``` 14.The main contention of the learned counsel appearing for the accused is that Honourable Supreme Court inAnvar.P.V (supra) held that, to treat an electronic record as admissible, it must ``` ``` Crl.MC No.4551/2022 ``` ``` 19 ``` ``` accompany, a certificate obtained at the time of taking the document and the principles inAnvar (supra)were upheld inArjun Panditrao (supra), ``` ``` subject to a modification that an opportunity can be granted to the prosecution for the production of the same at a later point of time, in the case where, a defective certificate is given and when the certificate is demanded and is not given by the concerned person. It is pointed out by the defence that, in this case, no such eventualities are in existence, as admittedly the certificate under section 65B was not procured at the time of taking the document by the police. Moreover, the ``` ``` investigating agency made no attempt to procure the same, during the period when the telecom companies retained the said data, ie. within two years. Thus, ``` ``` it is contended that now the prosecution is attempting to fill up the lacunae to the prejudice of the accused. ``` ``` 15. Thus, the contentions raised by the accused ``` ``` are mainly stressing on the observations made by ``` ``` Crl.MC No.4551/2022 ``` ``` 20 ``` ``` the Honourable Supreme Court in Anvar P.V(supra), as confirmed and clarified inArjun Panditrao (supra).However, a careful reading ofAnvar (supra) would reveal that the question as to the time/stage at which the document is to be produced and prepared, was not the issue that came up for consideration. The case dealt with therein was related to corrupt practices played by the returned candidate in an Assembly election, and to substantiate the said contentions, the petitioner therein sought to rely on certain Compact Discs (CDs) without producing a certificate under section ``` ``` 65B of the Evidence Act. In paragraph 23 of the judgment, it was observed that, no such certification was produced by the appellant ``` ``` therein. Thus the only question considered was, whether such an electronic record could be admitted in evidence without such certification. Therefore, the principles laid by the Honourable Supreme Court in the said decision were not pertaining to the time/stage at which the certification is to be ``` ``` Crl.MC No.4551/2022 ``` ``` 21 done, but it was confined to the mandatory requirement of the certificate. ``` ``` 16. The observations made by the Honourable Supreme Court in para 50 in Arjun Panditrao (supra) also confirm the same, wherein the observations made inAnvar P.V (supra) were explained and understood to mean that, the electronic record must accompany the certificate when it was produced before the court in evidence. The contention of the defence in this case, is by placing reliance upon the observations in the said para ofArjun ``` ``` Panditrao (supra), that, “We may only add that this is so 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 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.” ``` ``` Crl.MC No.4551/2022 ``` ``` 22 ``` ``` 17.A careful reading of the observations ``` ``` referred to above would reveal that the Honourable Supreme Court held that, when a defective certificate is given or in cases such certificate was not given by the person concerned despite demand for the same, the trial court must summon ``` ``` the person referred to sub section (4) of section 65B and require such person to give such ``` ``` certificate. An obligation was thus created upon ``` ``` the court to provide an opportunity to the party concerned to get the certificate in the ``` ``` circumstances mentioned above. There is no express ``` ``` prohibition in summoning the persons concerned, ``` ``` even in other circumstances. The observation ``` ``` following the above quoted lines, fortifies the ``` ``` same, ie. “This the trial judge ought to do when the electronic record is produced in evidence before him without the requisite certificates in the circumstances mentioned.” Thus, I am of the ``` ``` view that, in the absence of specific observations ``` ``` curtailing the powers of the trial court in ``` ``` Crl.MC No.4551/2022 ``` ``` 23 ``` ``` issuing summons to the persons concerned, requiring certification, even in the circumstances not mentioned in para 50 of the said judgment, it cannot be held that, the trial court is prevented from exercising its powers under section 91 or 311 of the Cr.P.C, as the case may be. ``` ``` 18. The learned counsels for the accused indeed ``` ``` raised a contention that, the aforesaid observation was pertaining to the civil cases and a different yardstick is to be applied with respect of the criminal cases. The said contention was raised by relying upon the observations in para 50 in Arjun Panditrao (supra),which reads as follows: “This ``` ``` is, of course, subject to the 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, ``` ``` Crl.MC No.4551/2022 ``` ``` 24 ``` ``` under the relevant Sections of the Code of Criminal ``` ``` Procedure.” ``` ``` 19. However, I am of the view that the said contention is not legally sustainable and the answer to the said contention is in the ``` ``` observations in the said judgment itself. In para ``` ``` 51, the observations made by the Honourable Supreme Court in State of Karnataka v. M.R Hiremath [(2019) ``` ``` 7 SCC 515] after referring to Anvar P.V (supra), were extracted, wherein it was held that, non production of certificate under section 65B of the Evidence Act in a criminal prosecution is a curable defect. More importantly, inHiremath’s case (supra), it was also observed by the Honourable Supreme Court that, the need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial and it is at that stage the necessity of the production of the certificate would arise. After referring to the observations made in Hiremmath’s ``` ``` Crl.MC No.4551/2022 ``` ``` 25 ``` ``` case (supra), inArjun Panditrao (supra),it was observed in paras 53 and 54, as follows: ``` ``` “53. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an Accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in Central Bureau of Investigation v. R.S. Pai MANU/SC/0246/2002 : (2002) 5 SCC 82, the only exception to this general Rule is if the prosecution had 'mistakenly' not filed a document, the said document can be allowed to be placed on record. The Court held as follows: ``` ``` 7. From the aforesaid Sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge- sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge- sheet, it is always open to the investigating officer to produce the same with the permission of the court.” ``` ``` “54. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an Accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the Accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution Under Sections 91 or 311 of the 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 ``` ``` Crl.MC No.4551/2022 ``` ``` 26 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.” ``` **==> picture [428 x 13] intentionally omitted <==** ``` of for allowing the production of such a ``` ``` certificate in criminal cases is only the prejudice ``` ``` that is likely to cause to the accused and there is no absolute prohibition in allowing the production as such. ``` ``` 21.There are certain other aspects also, which ``` ``` would fortify the aforesaid view. In Paras Jain v. ``` ``` State of Rajasthan (2015 SCC Online Raj 8331), the ``` ``` Rajasthan High Court, after referring to P.V Anvar ``` ``` (supra)in paras 15 to 20, it was observed as ``` ``` follows: ``` ``` “15. Although, it has been observed by Hon'ble Supreme Court that the requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but in my view it does not mean that it must be produced alongwith the charge-sheet and if it is not produced alongwith the charge-sheet, doors of the Court are completely shut and it cannot be produced subsequently in any circumstance. Section 65-B of the Evidence Act deals with admissibility of secondary evidence in the form ``` ``` Crl.MC No.4551/2022 ``` ``` 27 ``` ``` of electronic record and the procedure to be followed and the requirements be fulfilled before such an evidence can be held to be admissible in evidence and not with the stage at which such a certificate is to be produced before the Court. One of the principal issues arising for consideration in the above case before Hon'ble Court was the nature and manner of admission of electronic records. ``` ``` 16. From the facts of the above case it is revealed that the election of the Respondent to the legislative assembly of the State of Kerala was challenged by the Appellant-Shri Anwar P.V. by way of an election petition before the High Court of Kerala and it was dismissed vide order dated 16.11.2011 by the High Court and that order was challenged by the Appellant before Hon'ble Supreme Court. It appears that the election was challenged on the ground of corrupt practices committed by the Respondent and in support thereof some CDs were produced along with the election petition, but even during the course of trial certificate as required Under Section 65-B of the Evidence Act was not produced and the question of admissibility of the CDs as secondary evidence in the form of electronic record in absence of requisite certificate was considered and it was held that such electronic record is not admissible in evidence in absence of the certificate. It is clear from the facts of the case that the question of stage at which such electronic record is to be produced was not before the Hon'ble Court. ``` ``` 17. It is to be noted that it has been clarified by Hon'ble Court that observations made by it are in respect of secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act and 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 with the conditions in Section 65-B of the Evidence Act. ``` ``` 18. To consider the issue raised on behalf of the Petitioners in a proper manner, I pose a question to me whether an evidence and more particularly evidence in the form of a document not produced along with the charge-sheet cannot be produced subsequently in any circumstances. ``` ``` Crl.MC No.4551/2022 ``` ``` 28 ``` ``` My answer to the question is in negative and in my opinion such evidence can be produced subsequently also as it is well settled legal position that the goal of a criminal trial is to discover the truth and to achieve that goal, the best possible evidence is to be brought on record. ``` ``` 19. Relevant portion of Sub-section (1) of Section 91 Code of Criminal Procedure provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producement of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge- sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it. ``` ``` 20. As per Section 311 Code of Criminal Procedure, any Court may, at any stage of any trial under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined; and the Court shall summon and examine or recall and re- ``` ``` Crl.MC No.4551/2022 ``` ``` 29 ``` ``` examine any such person if his evidence appears to it to be essential to the just decision of the case. Under this provision also wide discretion has been conferred upon the Court to exercise its power and paramount consideration is just decision of the case. In my opinion under this provision it is permissible for the Court even to order production of a document before it if it is essential for the just decision of the case.” ``` ``` Further, in Paras Jain (supra), after referring to ``` ``` various provisions in Cr.P.C such as, Sections 91, ``` ``` 311, 173 (8), 231 it was observed in para 23 as ``` ``` follows: ``` ``` “23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge- sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form. ``` **==> picture [429 x 13] intentionally omitted <==** ``` State(MANU/DE/3674/2015,the Delhi High Court took ``` **==> picture [465 x 11] intentionally omitted <==** **==> picture [464 x 13] intentionally omitted <==** ``` Crl.MC No.4551/2022 ``` ``` 30 ``` ``` certificate cannot be produced in the exercise of ``` ``` the powers of the trial court under section 311 of ``` ``` Cr.P.C or at the appellate stage under section 391 of Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement ofAnvar P.V(supra) partially overrulingNavjoth Sandhu(supra), the prosecutionmaybeentitledinvokethe ``` ``` aforementioned provisions, when justified and required. ``` ``` 23. In Arjun Panditrao (supra), the Honourable Supreme Court, after quoting the aforesaid observations in Paras Jain (supra) and Kundan Singh (supra), observed that the law laid down by these ``` ``` two High Courts has their concurrence, subject to ``` ``` the caveat laid down in paras 50 and 54 above. As ``` ``` mentioned above, observations in para 50 and 54 do ``` ``` not contain any prohibition in producing the certificate under section 65B. The only aspect to ``` ``` be considered is the prejudice that is likely to be ``` ``` caused to the accused. When coming to the question ``` ``` of prejudice being caused to the accused in this ``` ``` Crl.MC No.4551/2022 ``` ``` 31 ``` ``` case, it is to be noted that the CDRs were already produced before the court along with the final ``` ``` report and the copies thereof were already served on the accused in compliance with section 207 of ``` ``` Cr.P.C. What is sought to be produced is only the certificate under section 65B which has its ``` ``` applicability with respect to the admissibility of the document and it does not concern the contents of the CDR sought to be admitted in evidence. Since the contents of the said CDR is already made available to the accused, the question of prejudice being caused to the accused would not arise. Thus, ``` ``` I am of the view that the legal position that emerges in the light of the observations by the ``` ``` Honourable Supreme Court in the decisions referred to above is that, nothing would preclude the trial court from permitting the production of a certificate under section 65B of the Evidence Act at a later stage of the proceedings, if there is no possibility of any prejudice being caused to other party, due to its production. ``` ``` Crl.MC No.4551/2022 ``` ``` 32 ``` ``` 24. This takes us to the next level of the issue as to whether such permission can be granted in respect of the certificate which was not ``` ``` prepared at the time when the electronic record was generated and also the question as to whether, it is possible to permit such certification when the original device is not in existence or the original electronic data is no longer in the computer system. This is one of the crucial objections raised by the accused, which is by relying on the stipulations in sub-section (4) of Section 65B. The said provision deals with the contents and manner in which such certification is to be made and also as to the person who is competent to issue such a certificate. It is provided in subsection (4) of section 65B that, where it is desired to give a statement in evidence a certificate doing the things mentioned in the said provision is required to be made, and it should contain the details such as (1) identifying the electronic record containing the statement and describing the manner in which it ``` ``` Crl.MC No.4551/2022 ``` ``` 33 ``` ``` was made, (2) 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 and (3) the matters to which the ``` ``` conditions mentioned in sub-section (2) of section ``` ``` 65B relate. It was contended by the learned ``` ``` counsels for the accused that, when the original data, (which is CDR in this case) are not available ``` ``` for verification, the identification of electronic records may not be possible, and therefore, the stipulation in section 65B (4) (a) cannot be complied with. ``` ``` 25.However, I am of the view that the said ``` ``` contention is not legally sustainable. The meaning of the term “identifying the electronic record containing the statement” contained in section 65B(4)(a) is not intended to identify each entry contained in the document by cross-verification with the original data. Identification contemplated ``` ``` in the said provision is identifying the electronic ``` ``` Crl.MC No.4551/2022 ``` ``` 34 ``` ``` record, by the person making it or the person responsible for the same, as the document which was retrieved or generated from the computer system maintained in compliance with the conditions stipulated in sub-section (2) of Section 65B. It is to be noted in this regard that, sub section (2) of section 65B is the crucial provision, which stipulates the conditions, for making an electronic ``` ``` record admissible in evidence and therefore, the focus is on the compliance of the conditions therein, which in turn, are more concentrated on the maintenance of the system and feeding of the data into the system, as part of the ordinary course of activities. Therefore, if the person who retrieved/generated the same from the system, or ``` ``` any other responsible person, is identifying the ``` ``` electronic record from his memory, as the document retrieved by him from the computer system, nothing precludes the court from treating it as admissible evidence, provided, he certifies that the computer system from which such electronic document was ``` ``` Crl.MC No.4551/2022 ``` ``` 35 ``` ``` generated/prepared was being maintained in ``` ``` compliance with the conditions specified in sub section (2) of Section 65B. However, the ``` ``` identification from the memory and the lack of ``` ``` original data, may have some relevance when the ``` ``` evidentiary value of such record is considered ``` ``` during the trial, though the electronic record ``` ``` could be admitted in evidence. ``` ``` 26.In this regard, I am of the view that, admitting a document in evidence and the ``` ``` evidentiary value of such document are two ``` ``` different concepts. When a document is admitted in ``` ``` evidence, such document will become part of the ``` ``` records and the same could be relied on, discussed ``` ``` and appreciated or rejected by the court, based on ``` ``` the materials collected during the course of the ``` ``` trial. On the other hand, if such a document is not ``` ``` admitted in evidence, such document cannot be ``` ``` relied on, and the doors towards the said document are shut permanently for the party who desires to rely on the same. Similarly, merely because a ``` ``` Crl.MC No.4551/2022 ``` ``` 36 ``` ``` document is admitted in evidence, it would not become conclusive automatically, but still, it would be open for the other party to challenge the evidentiary value and credibility of such a document during the trial by adducing evidence or discrediting the evidence adduced by the party who produces the same. Therefore, by permitting the person who retrieved or generated the electronic record from the system to certify the electronic record, it only makes such electronic record eligible to be admitted as part of the records, and nothing precludes the other party from challenging its evidentiary value. The court can still consider the evidentiary value while taking a final decision on the matter. ``` ``` 27.I am of the view that accepting the ``` ``` contention of the accused that certification of section 65B is to be done simultaneously at the time of preparing the same, and such certification cannot be permitted after the original system or data is irretrievable destroyed, would result in ``` ``` Crl.MC No.4551/2022 ``` ``` 37 ``` ``` undesired results and undue hardships to the party who intends to rely on such evidence. This case is a classic illustration of such injustice/prejudice being caused to the prosecution, if such certification is not permitted. It is to be noted that, in this case, immediately after the commission of the crime, the local police started the investigation and as part of the same, the CDRs were collected from the telecom companies without the required certification. Later even though the Crime Branch took over the investigation, they also did not care to obtain the certificate. Thereafter, this court having found that the investigation was not proper, a change of the investigation agency was ordered and accordingly, the same was entrusted to the CBI in the year 2007, which is after five years of the commission of the crime. By then, Call Data Records maintained by the telecom companies were destroyed, as they were supposed to retain the same for only two years. Therefore, the denial of permission to get a certification under section 65B ``` ``` Crl.MC No.4551/2022 ``` ``` 38 to the prosecution and asking them to get the ``` ``` certificate only after cross verification with the original CDR, would be asking them to do the ``` ``` impossible. It is also to be noted in this regard ``` ``` that, accepting the contention of the accused in ``` ``` this regard would enable the prosecution to suffer ``` ``` due to the willful or negligent acts or omissions of the investigation officers in getting the ``` ``` certification done when the documents were created ``` ``` and, thus, would get an undue advantage to the accused in certain circumstances, which cannot be permitted. ``` ``` 28.Insuchcircumstances,after ``` ``` considering all the relevant aspects, I am of the ``` ``` view that the prosecution has to be permitted to ``` ``` summon the persons concerned to get the ``` ``` certification under the Section 65B of the Evidence ``` ``` Act done, subject to the condition that, it shall be open for the trial court to consider the ``` ``` evidentiary value of the CDR and the question as to ``` ``` whether to rely upon the same for deciding on the ``` ``` Crl.MC No.4551/2022 ``` ``` 39 ``` ``` question of the guilt of the accused is to be decided at the time of taking a final decision in the matter. In this regard,it is profitable to refer to the decision rendered by a Division bench of this court in M.H. Faisal and others v. State and others (MANU/KE/1457/2022),wherein, a ``` ``` certificate was permitted to be prepared and produced during the appellate stage, in an appeal against the conviction. The said decision was rendered after placing reliance uponArjun ``` ``` Panditrao (supra).Thelearned counsel for accused No 10 contended that while taking the said decision by the Division Bench, the observations made by the Honourable Supreme Court in para 52 of the Arjun Panditraor(supra),were not brought to the notice ``` ``` of the court. However, I am not prepared to accept the same. There is nothing in para 52 of the said decision that would preclude the court from taking such a view. It is to be noted that, the ``` ``` observations in the said para are pertaining to the ``` ``` compliance of section 207 of the Cr.P.C by giving ``` ``` Crl.MC No.4551/2022 ``` ``` 40 ``` ``` copies of the documents to the accused, which are to be relied on by the prosecution. In this case, as well as in the case of M.H. Faisal (supra), the accused were furnished with the relevant documents (in this case CDR), along with the final report and therefore, they were put to notice of the contents of the same and what is sought to be produced at a later stage is only the certification under section 65B alone. Therefore, I am unable to see any prejudice. Hence, granting permission to get a certification would not be against the principles laid down by the Honourable Supreme Court. ``` ``` 29.However, I wish to make a clarification in this regard. By permitting the prosecution to get the certification done, it would not mean that the prosecution can compel the person concerned to certify it. If the person concerned feel that, he cannot certify it without the original records being verified, it shall be open for him to decide as to whether to certify it or not. After all, what ``` ``` Crl.MC No.4551/2022 ``` ``` 41 ``` ``` he is certifying is his bonafide belief and knowledge, which cannot be created by compulsion. Thus, upon receipt of the summons, if the person concerned refuses to certify on the ground that the original CDR is not available, nothing would preclude such person from maintaining that stand. ``` ``` 30.Another contention raised by the accused relates to the prejudice being caused to the accused, as the lack of original CDR for comparison would deprive him of getting the same verified by an expert as contemplated under section 45A of the Evidence Act. However, I am of the view that, this is an issue not relating to the question of admitting the electronic records, but it is a matter about the evidentiary value of the same and hence would not stand in the way of certification of such records. ``` ``` 31. It was further contended by the learned counsels for the accused that, a direction under section 91 of the Cr.P.C can be issued only for the production of a document in existence and it cannot be invoked to direct the persons concerned ``` ``` Crl.MC No.4551/2022 ``` ``` 42 ``` ``` to prepare a document and submit the same. However, it is to be noted in this regard that, in Arjun Panditrao (supra) it was observed that, in cases where is a defective certificate was given or no certificate was given despite demand, party concerned could be summoned to produce such certificate. Therefore, it is evident that, as far ``` ``` as the production of certificate under section 65B of the Evidence Act is concerned, there is no absolute prohibition in asking to prepare and produce the said document, at the time of the ``` ``` evidence. Moreover, what is required to be produced is a certificate in respect of the manner in which an electronic record, which is already produced along with the final report, is generated and details of the computer system from which it was generated. Thus the question of prejudice to the accused does not arise. The view which I have taken is fortified by the decision of this court in M.H Faisal(supra) and State of Kerala v. Sunil N.A @ Pulsar Suni and others (2022 (1) KLT 512). ``` ``` Crl.MC No.4551/2022 ``` ``` 43 ``` ``` 32. Now, when coming to the order passed by the learned Session Judge in this case, it can be seen thattheapplicationsubmittedbythe ``` ``` petitioner/prosecution was rejected mainly on three ``` ``` grounds. The first ground is that three decisions namely (1) Navjot Sandhu(supra), (2)Shafhi Muhammed ``` ``` (supra) and (3)Madras High Court judgment in Ramajayan.K @ Appu v. Inspector of Police, Chennai ``` ``` (2016 KHC 2837), in which favourable views were ``` ``` taken supporting the prosecution, were overruled in Arjun Panditrao (supra). Therefore, it was observed ``` ``` in the impugned order that, those favourable views that would have otherwise validated the ``` ``` certification by just refreshing one's own memory without any further cross-checks and verification with the electronic data having been negatived, the prayer sought by the prosecution cannot be allowed. However, as observed above, as far as the ``` ``` observations inNavjot Sandhu (supra) and Shafhi Muhammed (supra) are concerned, what was overruled in Arjun Panditrao (supra), is the law declared in ``` ``` Crl.MC No.4551/2022 ``` ``` 44 ``` ``` those decisions to the effect that, even in the absence of certification under Section 65B of the Evidence Act, the electronic record could be admitted, if the court is satisfied with its authenticity. The time or stage at which such ``` ``` certification is to be done was not the issue ``` ``` considered, and no principles about the same were ``` ``` laid down in the said decisions or overruled in ``` ``` P.V. Anvar(supra)or Arjun Panditrao (supra). ``` ``` Therefore, overruling the said decisions in Navjot ``` ``` Sandhu (supra) andShafhi Muhammed(supra), can ``` ``` have no impact as far as the said issue is ``` ``` concerned. Similarly, overruling the Madras High ``` ``` Court decision inRamajayam(supra)inArjun ``` ``` Panditrao (supra) was also not in respect of the stage of certification. The said aspect is evident ``` ``` from the observations in Arjun Panditrao (supra) in para 60 which reads as follows: ``` ``` “In view of the above,the decision of the Madras High Court inK. Ramajyam(supra), which states that evidence aliundecan be given through a person who was in-charge of a computer device in the place of the requisite certificate under Section 65B(4) of the Evidence Act is also an incorrect statement of the law and is accordingly, overruled.” ``` ``` Crl.MC No.4551/2022 ``` ``` 45 ``` ``` Thus, it can be seen that the said ground, that formed the basis of the decision by the learned Sessions Judge, is not legally sustainable. ``` ``` 33. The second ground was that, according to the learned Sessions Judge inArjun Panditrao’s ``` ``` case (supra), it was observed in para 22 that, “ 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”. This observation was treated as an ``` ``` indication that the certification with regard to ``` ``` the four conditions mentioned therein could be made ``` ``` only after verifying and cross-checking with the original data available in the original device or saved in the computer. However, the observation extracted above is not made in para 22 of the ``` ``` decision in Arjun Panditrao(supra), but it was the observation made in para 22of Anvar P.V (supra), which was extracted in para 24 of Arjun Panditrao ``` ``` Crl.MC No.4551/2022 ``` ``` 46 ``` ``` (supra). The said observations inAnvar P.V. (supra)were already dealt with and explained in the Arjun Panditrao(supra). I have already considered the impact of such observations in earlier paras of this order, in the light of the observations made by the Honourable Supreme Court in Arjun Panditrao ``` ``` (supra) confirming the views expressed by the Rajasthan High Court and Delhi High Court in Paras Jain(supra)andKundanSingh(supra) respectively. Thus the above ground is also not legally sustainable. ``` ``` 34. The third ground was concerning the impact of section 45A of the Evidence Act, as the original electronic data is not available. I have already discussed this issue in the earlier part of this order, and a contrary view has been taken. ``` ``` 35. Thus, from the discussions made above, the only irresistible conclusion possible is that the application submitted by the petitioner is to be allowed by interfering with the order passed by the learned Sessions Judge. However, even while ``` ``` Crl.MC No.4551/2022 ``` ``` 47 ``` ``` permitting the prosecution to get the certification ``` ``` under section 65B of the Evidence Act done, a reasonable opportunity has to be granted to the accused to cross-examine the witnesses who gave evidence touching upon the matters relating to the contents of the said CDRs. ``` ``` In the result; ``` **a** `This Crl.MC is allowed, and the Annexure` ``` A5 order dated 18[th] May, 2022 passed by the Court of the III Additional Sessions Judge/Special Judge(SPE/CBI)-I Ernakulam in Crl.M.P No.576/2021 is hereby set aside; ``` **b** `The petitioner/prosecution is permitted to summon CWs 47 and 49, to produce the certificate under section 65B in respect of the respective CDRs retrieved by them for production before the investigating officer and appropriate orders in this regard shall be passed by the learned Special Judge. If the said witnesses are` ``` Crl.MC No.4551/2022 ``` ``` 48 prepared to certify the same, such certification can be admitted in evidence, subject to the condition that it shall be open for the accused to dispute the credibility and the evidentiary value of the same, at the time of the trial and the trial court can take an appropriate decision, at the time of taking a final decision. cIn case the accused wants to recall any of the witnesses already examined for cross-examination, pertaining to the contents of the CDRs so admitted in evidence, a reasonable opportunity for the same shall be granted to them upon an application being submitted in this regard. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` ``` Crl.MC No.4551/2022 ``` ``` 49 ``` ## `APPENDIX OF CRL.MC 4551/2022` |`PETITIONER’S`|`ANNEXURES:`| |---|---| |`ANNEXURE A1`|`A TRUE COPY OF THE CRL.M.P NO. 576 OF 2022`| ||`IN S.C NO. 725 OF 2015 DATED 10.03.2022`| ||`FILED BEFORE THE COURT OF THE III`| ||`ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE`| ||`(SPE/CBI)-I, ERNAKULAM`| |`ANNEXURE A2`|`A TRUE COPY OF THE OBJECTION DATED`| ||`14.03.2022 FILED BY THE ACCUSED 1 AND 2 IN`| ||`CRL.M.P NO. 576 OF 2022 IN S.C NO. 725 OF`| ||`2015`| |`ANNEXURE A3`|`A TRUE COPY OF THE OBJECTION DATED`| ||`14.03.2022 FILED BY THE ACCUSED 6 TO 9 IN`| ||`CRL.M.P NO. 576 OF 2022 IN S.C NO. 725 OF`| ||`2015`| |`ANNEXURE A4`|`A TRUE COPY OF THE OBJECTION DATED`| ||`13.04.2022 FILED BY THE 10TH ACCUSED IN SC`| ||`NO. 725/2015`| |`ANNEXURE A5`|`A TRUE COPY OF THE ORDER OF THE COURT OF`| ||`THE III ADDITIONAL SESSIONS JUDGE /SPECIAL`| ||`JUDGE`<br>`(SPE/CBI)-I,`<br>`ERNAKULAM`<br>`DATED`| ||`18.05.2022 IN CRL.M.P NO. 576 OF 2022 IN`| ||`S.C NO. 725 OF 2015`|