Sunny v. State of Kerala & Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944 ``` ## `CRL.MC NO. 7525 OF 2022` ``` [CRIME NO.200/2017 OF Chalakkudy Police Station, Thrissur] ``` ``` [TO QUASH THE ORDER DATED 14.10.2022 IN CRL.M.P.NO.264/2022 IN S.C.NO.436/2018 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, ``` ## `IRINJALAKUDA]` ## `PETITIONER/1ST RESPONDENT/1ST ACCUSED:` ``` SUNNY,AGED 46 YEARS SON OF VARGHESE, KOYIKKARA HOUSE, PULINGARA DESOM, KUTTICHIRA VILLAGE, PIN - 680724 BY ADVS. GEO PAUL RADHIKA RAJASEKHARAN P. C.R.PRAMOD JACOB GEORGE PALLATH NAVEEN T.U. SOHAIL AHAMMED HARRIS P.P. ``` ## `RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3/STATE & ACCUSED 2 & 3:` ``` 1STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, CHALAKUDY PS, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2PRINCE,AGED 35 YEARS SON OF JOSEPH, KUTTIKADAN HOUSE, PULINGARA DESOM, KUTTICHIRA VILLAGE, PIN - 680724 3BIJU,AGED 42 YEARS SON OF THOMMAN, PAYYAPPILLY HOUSE, PONNAMBIYOLI DESOM, KUTTICHIRA VILLAGE, PIN – 680724 ``` ``` R1 BY ADV VIPIN NARAYAN, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.01.2023, THE COURT ON 20.01.2023 PASSED THE FOLLOWING: ``` ``` Crl.MC No.7525/2022 2 ``` ## `O R D E R` ``` The petitioner is the 1[st] accused in S.C No 436 of 2018 on the files of the Court of the Additional Sessions Judge, Irinjalakuda, which is arising from Crime No.200/2017 of Chalakkudy Police Station. The offences alleged against the petitioner and other accused are punishable under sections 302, 307 read with section 120B of the Indian Penal Code (IPC). ``` ``` 2. The prosecution case is that, the first ``` ``` accused, while driving a tipper lorry from Chalkudy to Athirappilly, saw the deceased and his brother going to Chalakudy through the other side of the road, and thereupon the 1[st] accused took a ‘U’ turn in front of the Silver Storm Park, situated on the side of the said road, went towards the Chalakudy side and hit behind the scooter of the deceased Libin, thereby caused his death. ``` ``` Crl.MC No.7525/2022 3 ``` ``` 3.The images of the 1[st] accused taking ‘U’ ``` ``` turn and the collision between the vehicles were ``` ``` captured by CCTV cameras installed in front of the said Silver Storm Park. Therefore, on ``` ``` 22.02.2017, the investigation officer, with the assistance of CW 20, who is an Electrical ``` ``` Engineer by profession and was working as the Mechanical and Operation Department of the said ``` ``` park, got the said video footage copied in DVD and produced the same before the court. However, ``` ``` while producing the said DVD before the court, ``` ``` the investigation officer mistakenly did not obtain and produce the certificate under section ``` ``` 65B of the Evidence Act. Therefore at the ``` ``` commencement of the trial, the learned Public ``` ``` Prosecutor filed Crl.M.P 264/2022 under sections ``` ``` 91 and 311 of Cr.P.C summoning CW20 to produce the said certificate, the copy of which is produced in this Crl.MC as Annexure A1. ``` ``` Crl.MC No.7525/2022 4 ``` `4. The petitioner submitted a detailed` ``` objection and it is Annexure A2. It was contended that, the application submitted by the prosecution to get the certificate after more than five years of its seizure is not ``` ``` permissible and the prosecution is attempting to ``` ``` fill up the lacunae, which would cause serious prejudice to the accused. The mahazer prepared at the time of seizure does not contain any indication as to the fulfillment of conditions in section 65B(2) of the Evidence Act. The ``` ``` statement of CW20 recorded under section 161 of Cr.P.C is also silent about the compliance of the said conditions. Hence he sought the ``` ``` dismissal of the petition. ``` ``` 5. However, after hearing both sides,the learned Sessions Judge, allowed the said application as per Annexure A3 order and the same is under challenge in this Crl.M.C. ``` ``` Crl.MC No.7525/2022 5 ``` ``` 6. Heard Sri. Geo Paul, learned Counsel for the petitioner and Sri Vipin Narayan, learned Public Prosecutor for the State. ``` `7. The crucial question that arises for` ``` consideration is whether the certification under section 65B of the Evidence Act, can be permitted to be prepared and produced before the court, after the lapse of years (five years) and without verifying the original data. ``` ``` 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 ``` ``` Crl.MC No.7525/2022 6 ``` ``` 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]. ``` ``` 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: ``` ``` “(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a ``` ``` Crl.MC No.7525/2022 7 ``` ``` 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 ``` ``` (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 ``` ``` Crl.MC No.7525/2022 8 ``` ``` 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 relevantactivities(whicheveris 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 knowledge and belief of the person stating it. ``` ``` Crl.MC No.7525/2022 9 ``` ``` (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 certainconditions are satisfied. Sub-section (2) contemplates the ``` ``` Crl.MC No.7525/2022 10 ``` ``` conditions, four in number, to be satisfied, which are essentially related to the operation, use and 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 ``` ``` Crl.MC No.7525/2022 11 ``` ``` operation of the relevant device or management of the relevant activities. ``` ``` 11. Earlier, a two judge bench of the Honourable Supreme Court inNavjot 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, inAnvar P.V (supra),a ``` ``` 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 principlesGeneraliaspecialibusnon ``` ``` Crl.MC No.7525/2022 12 ``` ``` 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 Honorable 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 the electronicrecord,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 the following observations made in para 50, which reads as follows; ``` ``` Crl.MC No.7525/2022 13 ``` ``` “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 ``` ``` Crl.MC No.7525/2022 14 ``` ``` this case, the question that arises is whether the prosecution can be permitted to get a certification of an electronic record done, in respect of a document which was generated from the computer system five years ago. The prosecution as well as the defence are relying upon the various observations made by the Honourable Supreme Court in Arjun 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 in Arjun Panditrao (supra),permitted the ``` ``` prosecution to produce the certificate under section 65B of the Act, after taking evidence during the appellate stage, while considering ``` ``` Crl.MC No.7525/2022 15 ``` ``` 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 in Anvar.P.V (supra) ``` ``` held that, to treat an electronic record as admissible, it must accompany, a certificate obtained at the time of taking the document and the principles in Anvar (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 ``` ``` Crl.MC No.7525/2022 16 ``` ``` in existence, as admittedly the certificate under section 65B was not procured at the time of taking the document by the police. 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 the Honourable Supreme Court in Anvar P.V(supra), as confirmed and clarified inArjun Panditrao (supra). ``` ``` However, a careful reading of Anvar(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 ``` ``` Crl.MC No.7525/2022 17 ``` ``` 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 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 ``` ``` Crl.MC No.7525/2022 18 ``` ``` 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 of Arjun 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 ``` ``` Crl.MC No.7525/2022 19 ``` ``` require that such certificate be given by ``` ``` such person/persons.” ``` ``` 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, ``` ``` Crl.MC No.7525/2022 20 ``` ``` fortifies the same, i.e“ This the trial ``` ``` judge ought to do when the electronic record ``` ``` is produced in evidence before him without therequisitecertificatesinthe ``` ``` circumstances mentioned.” Thus, I am of the view that, in the absence of specific ``` ``` observations curtailing the powers of the trial court in issuing summons to ``` ``` the persons concerned requiring certification 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 counsel for the accused ``` ``` indeed raised a contention that, the ``` ``` aforesaid observation was pertaining to the civil cases and a different yardstick is to ``` ``` Crl.MC No.7525/2022 21 ``` ``` be applied with respect to 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, ``` ``` 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 ``` ``` Crl.MC No.7525/2022 22 ``` ``` the observations in the said judgment itself. In para 51, the observations made by the Honourable Supreme Court inState of ``` ``` Karnataka v. M.R Hiremath [(2019 7 SCC 515] after referring toAnvar 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, in ``` ``` Hiremath’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 beproduced 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 inHiremmath’s case (supra), inArjun ``` ``` Crl.MC No.7525/2022 23 ``` ``` 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 documentscannotbeproduced 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 ``` ``` Crl.MC No.7525/2022 24 ``` ``` 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.” ``` ``` 20.Thus, the crucial aspect to be taken ``` ``` note 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, ``` ``` Crl.MC No.7525/2022 25 ``` ``` after referring to P.V Anvar (supra) in paras ``` ``` 15 to 20, 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 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 ``` ``` Crl.MC No.7525/2022 26 ``` ``` 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. 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 ``` ``` Crl.MC No.7525/2022 27 ``` ``` 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 canalsobeissuedtothe 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-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.” ``` ``` Crl.MC No.7525/2022 28 Further, inParas 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.” ``` ``` 22.Similarly, in Kundan Singh v. The ``` ``` State(MANU/DE/3674/2015),the Delhi High ``` ``` Court took a similar view.. It was held that ``` ``` Anvar P.V (supra)does not state or hold that ``` ``` the said certificate cannot be produced in the exercise of the powers of the trial court ``` ``` Crl.MC No.7525/2022 29 ``` ``` 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 prosecution may be entitled invoke the aforementioned provisions, when justified and required. ``` ``` 23. InArjun 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 ``` ``` Crl.MC No.7525/2022 30 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 case, it is to be noted that the DVD is already produced before the court along with the final report. The prosecution has a specific case that, a copy of the said DVD was given to the petitioner in compliance with section 207 of Cr.P.C, during the committal stage. However, as the accused denied the receipt of copy of the same, even while maintaining the stand that the copy was already provided, the learned Public Prosecutor, provided another copy to them before the trial of the case. Therefore, what is sought to be produced is only the certificate under section 65B which has its applicability with respect to the ``` ``` Crl.MC No.7525/2022 31 ``` ``` admissibility of the document and it is not concerning the contents of the DVD sought to be admitted in evidence. Since the contents of the said DVD 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. ``` ``` 24. This takes us to the next level of ``` ``` the issue as to whether such permission can ``` ``` Crl.MC No.7525/2022 32 ``` ``` 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 ``` ``` Crl.MC No.7525/2022 33 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 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 video footage captured in CCTV camera in this case) is not available for verification, the identification of electronic records may not be possible, and therefore, the ``` ``` Crl.MC No.7525/2022 34 ``` ``` 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 or each ``` ``` details contained in the electronic document ``` ``` by cross-verification with the original data. ``` ``` Identification contemplated in the said provision is identifying the electronic ``` ``` record, by the person making it or the person ``` ``` responsible for the same, as the record which ``` ``` was retrieved or generated from the digital device maintained in compliance with the conditions stipulated in sub-section (2) of Section 65B. It is to be noted in this regard ``` ``` Crl.MC No.7525/2022 35 ``` ``` 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/device, or any other responsible person, is identifying the electronic record from his memory, as the electronic record retrieved by him from the ``` ``` digital device, nothing precludes the court ``` ``` from treating it as admissible evidence, provided, he certifies that the computer ``` ``` system or digital device from which such ``` ``` Crl.MC No.7525/2022 36 ``` ``` electronic document was 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 ``` ``` Crl.MC No.7525/2022 37 ``` ``` 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 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 ``` ``` Crl.MC No.7525/2022 38 ``` ``` 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 under section 65B is to be done simultaneously at the time of preparing the same, and such certification cannot be permitted after the original system/digital device or data is irretrievably destroyed, would result in undesired results and undue hardships to the party who intends to rely on ``` ``` such evidence. In this case, the case of the prosecution is that, the investigation officer mistakenly did not procure the certificate under section 65B while the DVD ``` ``` Crl.MC No.7525/2022 39 ``` ``` was obtained. As rightly observed by the learned Sessions Judge in the impugned order, after referring to the decision of the Honourable Supreme Court in Central Bureau of Investigation v. R.S Pai [(2002) 5 SCC 82], there is no absolute prohibition in the production of the documents in criminal cases, at a later point of time. If some mistake is committed in not producing the relevant documents at the time of submitting charge sheet it is always open to the investigation officer to produce them after getting permission from the court. Thus, nothing precludes the court from permitting the prosecution to produce documents after filing the final report. It is also to be noted in this regard that, accepting the contention of the accused in this regard ``` ``` Crl.MC No.7525/2022 40 ``` ``` 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 electronic records were obtained and, thus, would get an undue advantage to the accused in certain ``` ``` circumstances, which cannot be permitted. ``` ``` 28.In such circumstances, 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 DVD. The question as to whether to rely upon the same for deciding the question of guilt of the accused should be ``` ``` Crl.MC No.7525/2022 41 ``` ``` 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 inM.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 upon Arjun Panditrao (supra).Thelearned counsel for the accused contended that while taking the said decision by the Division Bench, the observations made by the Honourable Supreme Courtinpara52oftheArjun ``` ``` Panditrao(supra),were not brought to the notice of the court.However, I am not prepared to accept the same. There is nothing ``` ``` Crl.MC No.7525/2022 42 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 the 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 DVD), before the trial 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 ``` ``` Crl.MC No.7525/2022 43 ``` ``` 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 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 DVD is not available, nothing would ``` ``` Crl.MC No.7525/2022 44 ``` ``` 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 ``` ``` Crl.MC No.7525/2022 45 ``` ``` document in existence and it cannot be invoked to direct the persons concerned to prepare a document and submit the same. However, it is to be noted in this regard ``` ``` that, inArjun 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 ``` ``` Crl.MC No.7525/2022 46 ``` ``` report, is generated and details of the ``` ``` computer system/digital device 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).` ``` Thus in the light of the discussion ``` ``` made, I do not find any valid ground to ``` ``` interfere with the order passed by the ``` ``` learned Sessions Judge. Hence I do not find ``` ``` any merits in this Crl.M.C and accordingly, ``` ``` it is dismissed by confirming the Annexure A3 ``` ``` order, subject to the observations made in this order. ``` ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` ``` Crl.MC No.7525/2022 47 ``` ## `A PPENDIX OF CRL.MC 7525/2022` ``` PETITIONER’S ANNEXURES: ANNEXURE A1TRUE COPY OF THE PETITION FILED BY THE PUBLIC PROSECUTOR DATED 10-10-2022 ANNEXURE A2TRUE COPY OF THE OBJECTION FILED BY THE COUNSEL FOR THE PETITIONER DATED 11-10- 2022 ANNEXURE A3TRUE COPY OF THE ORDER OF THE HONOURABLE ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA IN CRL.M.P 264/2022 OF S.C. 436/2018 DATED 14-10-2022 ANNEXURE A4TRUE COPY OF THE SEIZURE MAHAZAR DATED 22-02-2017 IN CRIME 200/2017 BY THE INSPECTOR OF POLICE, CHALAKKUDY PS ANNEXURE A5TRUE COPY OF THE 161 STATEMENT OF CW 20, AKHIL RECORDED BY THE INVESTIGATIVE OFFICER ```