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High Court of KeralaSingle JudgeDisposed of with modifications

Vishnu and others v. State of Kerala

Case / Petition Number:Crl.M.C. 6783/22

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Bechu Kurian Thomas
Judgment Date
2023-03-06
Court Decision / Holding
The High Court affirmed the Sessions Court’s approach to permit the 65B certificate, but modified the order by ruling that the contents of the CD should not be displayed in open court. A copy of the CD must be supplied to the accused before recalling PW9 to testify, and the certificate under Section 65B should accompany the CD’s contents for admissibility. The petition is disposed with these modifications, upholding the belated certificate’s admissibility while safeguarding the accused’s right to cross-examine with a proper copy of the CD.
Final Disposition
Disposed of with modifications

Parties to the Case

Appellants / Petitioners

  • Vishnu
  • Shinto
  • Jikkumon Joseph
  • Saji Joy
  • Lijo

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala
  • The Inspector of Police, Kattappana Police Station, Idukki District

Legal Representation & Advocates

Counsels for Petitioners

  • • George Mathew

Counsels for Respondents

  • • Smt. Sreeja V., Public Prosecutor

Case Synopsis & Summary

This Kerala High Court criminal misc. petition arises from a trial for serious offences including Section 302 IPC. A witness had recorded the incident on a mobile phone and handed a CD to the investigating officer. The CD was marked as a material object since the prosecution had not produced a 65B certificate under the Indian Evidence Act. The prosecution sought permission to receive the 65B certificate to make the CD’s contents admissible. The defense opposed, arguing that admitting the CD as a document at a belated stage would enable tampering and prejudice the accused, undermining fair trial since all documents should be supplied with the final report. The Sessions Court allowed the belated 65B certificate and permitted the prosecution to display the CD’s contents in court, with PW9 recalled to prove the contents. The Public Prosecutor pressed that the 65B certificate is a procedural safeguard, not an evidentiary creator. The court invoked Section 311 Cr.P.C., noting its wide discretion to aid truth-seeking while ensuring justice. Relying on precedents (Sabharwal, Soni, Varsha Garg, and Khotkar), the High Court held that belated production of the certificate is permissible if no prejudice arises, and that copying the CD must be provided to the accused. The court disposed the petition with modifications, preserving the certificate’s admissibility while restricting public display of the CD contents and directing transfer of a CD copy to the accused before recalled testimony.

Provisions of Law Cited

Section 302 IPCSection 65B of the Indian Evidence Act, 1872Section 311 Cr.P.C.Section 207 Cr.P.C.

Legal Doctrines & Maxims

  • Inherent power and wide discretion of the court under Section 311 Cr.P.C to elicit evidence for a just decision, with caution and in the interests of justice.
  • Power not constrained by the mere closure of evidence; necessity to reach truth as recognized in Varsha Garg (2022) and related precedents.
  • Admission or reliance on electronic records with 65B certificates can be belatedly permitted where prejudice to the accused is not established (Arjun Panditrao Khotkar)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the CD, sought to be received as a document along with the 65B certificate, cannot be admitted due to lack of assurance against tampering and because it constitutes a belated insertion that would prejudice the accused; they argue that all documents in the final report must be supplied originally, and introducing new material at the late stage would violate fair trial guarantees. They rely on the need for substantive evidence to be properly tested via cross-examination, and on Section 311 Cr.P.C. to ensure fairness, but stress that admission must not undermine defence by introducing unverified material. They also seek to avoid compulsory public display of the CD in court, and request that any contents be provided to the defence in copy form to enable proper cross-examination.

Contentions of Respondents

The prosecution submits that the CD is already part of the evidence and had been marked as a material object; the Section 65B certificate is a procedural safeguard to enable admissibility of electronic records, not to create new evidence. Belated production is permissible under Arjun Panditrao Khotkar unless serious prejudice is shown. The prosecution argues that the court’s wide discretion under Section 311 Cr.P.C supports measured intervention to ensure justice, and that copies of the CD will be essential for the accused to mount an effective defence; the earlier order to display the CD publicly is improper and must be revised in light of fair trial norms.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Himanshu Singh Sabharwal v. State of Madhya Pradesh and Others(2008) 3 SCC 602PositiveCited to illustrate the court’s broad discretion under Section 311 Cr.P.C. and the need for cautious exercise of that power in light of justice.
Mohanlal Shamji Soni v. Union of India and Another(AIR 1991 SC 1346)PositiveAlso cited to support the principle of broad discretionary power of the court under section 311 Cr.P.C. with judicial caution.
Varsha Garg v. State of Madhya Pradesh and Others[2022] SCC OnLine SC 986PositiveCited for reiterating that Section 311 Cr.P.C. power is not constrained even by the closure of evidence, guiding its exercise in fairness and justice.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others[(2020) 7 SCC 1]PositiveCited to justify that 65B certificates can be produced belatedly after final report unless substantial prejudice to the accused occurs.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 CRL.MC NO. 6783 OF 2022** **AGAINST SC 405/2017 OF III ADDITIONAL SESSIONS COURT,** **THODUPUZHA** **CRIME NO.1495/2016 OF KATTAPPANA POLICE STATION, IDUKKI** ## **PETITIONERS/RESPONDENTS/ACCUSED:** **1 VISHNU AGED 29 YEARS, S/O. LALABHU, MANGADAMPALLIL HOUSE, KALTHOTTI KARA, KANCHIYAR VILLAGE, IDUKKI DISTRICT - 685 511** **2 SHINTO AGED 42 YEARS, S/O. CHACKO, KATTEZHATHU HOUSE, PEZHUMKANDAM BHAGOM, KANCHIYAR VILLAGE, IDUKKI DISTRICT - 685 511** **3 JIKKUMMON JOSEPH AGED 35 YEARS,S/O. JOSEPH, CHEERAMKUNNEL HOUSE, KALTHOTTI KARA, KANCHIYAR VILLAGE, IDUKKI DISTRICT - 685 511** **4 SAJI JOY AGED 36 YEARS, S/O. JOY, MATTUMMANNIL HOUSE, KALYANATHANDU KARA, THOVARAYAR BHAGOM, KANCHIYAR VILLAGE, IDUKKI DISTRICT - 685 511** **5 LIJO AGED 38 YEARS, S/O. MATHEW, CHERIPURATHU HOUSE, PEZHUMKANDAM BHAGOM, KANCHIYAR VILLAGE & KARA, IDUKKI DISTRICT - 685 511** **BY ADVS. SRI.GEORGE MATHEW** Crl.M.C. 6783 /22 ## **-:2:-** **SRI.PRAVEEN S. SMT.STEPHY K REGI SRI.DIPU JAMES SRI.SUNIL KUMAR A.G SRI.MATHEW K.T. SRI.GEORGE K.V.** ## **RESPONDENTS/PETITIONER/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 2 THE INSPECTOR OF POLICE KATTAPANA POLICE STATION, IDUKKI DISTRICT - 685 515 BY SMT.SREEJA V., PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON 06.03.2023 PASSED THE FOLLOWING:** **-:3:-** Crl.M.C. 6783 /22 ## **BECHU KURIAN THOMAS, J. -----------------------------------Crl.M.C. No.6783 of 2022 ------------------------------------** Dated this the 6[th] day of March, 2023 ## **ORDER** Petitioners are facing indictment for various offences including section 302 of the Indian Penal Code, 1860. While examining a witness during the course of the trial, it was deposed that the witness had recorded the occurrence on his mobile phone and copied it into a computer disc (CD) and handed it over to the investigating officer. When the investigating officer was examined, the marking of the CD as a document was objected to by the defence, contending that the certificate under section 65B of the Indian Evidence Act, 1872, (for short, ‘IEA’) was not produced. In such circumstances, the CD was marked as a material object through PW9 instead of as a document. 2. Thereafter a petition was filed by the prosecutor as Crl.M.P. No.2515 of 2022 seeking permission to receive the certificate issued under section 65B of IEA as an additional document so as to enable the contents of the CD to be admissible in evidence. The defence again objected to the said petition stating that production of the certificate at a belated stage would cause prejudice to the accused and therefore the Crl.M.C. 6783 /22 ## **-:4:-** application ought to be dismissed. 3. The learned Sessions Judge by the impugned order allowed the application and directed the certificate produced under section 65B of IEA to be received on file and also accorded permission to the prosecution to display the contents of the CD in court, for proving its contents, apart from directing recalling of PW9 for further examination to prove the contents of the CD. 4. Sri. George Mathew, the learned counsel for the petitioners assailed the impugned order of the learned Sessions Judge contending that the CD now sought to be produced in evidence as a document cannot be admitted since there is no guarantee that the same is free from tampering. It was further submitted that the said document is an attempt to fabricate evidence without adhering to the procedures and, that too, trying to bring on record a document which was not given to the accused earlier. The learned counsel also asserted that once the prosecution had prepared its case, every document accompanying the final report was bound to be given so that the accused could formulate his defence properly. Learned counsel also stated that if during the final stage of the evidence, a new document is brought in, the entire defence would be prejudiced and therefore it will affect the concept of a fair trial. 5. Smt.Sreeja V., the learned Public Prosecutor on the other hand contended that the CD was always a part of the evidence and it had even **-:5:-** Crl.M.C. 6783 /22 been marked as a material object since there was an objection from the accused that the electronic record was not supported by a certificate under section 65B of the Evidence Act. The production of the certificate is not a means to create evidence but only a means to avoid a technical objection which occurred on account of an inadvertent omission on the part of the investigating officer. 6. Section 311 of Cr.P.C. confers a wide power on the court to elicit all necessary materials by playing an active role in the evidence-collecting process. Even when the prosecutor is remiss in certain ways, the court can control the proceedings effectively so that the ultimate objective, i.e. truth, is arrived at. The only restriction in section 311 Cr.P.C is that the court must deem it essential for a just decision of the case that the evidence is required. 7. In the decisions in **Himanshu Singh Sabharwal v. State of Madhya Pradesh and Others** [(2008) 3 SCC 602] and **Mohanlal Shamji Soni v. Union of India and Another** (AIR 1991 SC 1346), the Supreme Court has held that the terminology used in section 311 Cr.P.C indicates that wide discretion has been granted to the court though such discretion confers a corresponding caution and the same has to be exercised depending upon the exigencies of justice. Similarly, in a recent decision in **Varsha Garg v. State of Madhya Pradesh and Others** [2022 SCC OnLine SC 986] also the Supreme Court reiterated that the power of the **-:6:-** Crl.M.C. 6783 /22 court under section 311 Cr.P.C is not constrained even by the closure of evidence and the powers are governed by requirements of justice. 8. In the instant case, the CD which can be treated as an electronic record was already produced but without the required certificate under Section 65B of IEA. In the absence of the certificate, the court marked it as a material object. The prosecution deems it appropriate to rely upon the contents of the said CD. The certificate under section 65B IEA to accompany the CD is a statutory requirement which has not been complied with. The omission to produce the certificate cannot be treated as a lacuna in the prosecution case but only as an inadvertent omission. No prejudice would be caused to the accused if the said certificate is produced since the accused will have an opportunity to cross-examine and question the correctness of the contents of the document. 9. Further in the decision in **Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others** [(2020) 7 SCC 1] the Supreme Court had held that the certificate under Section 65B of IEA could be produced even after the final report is filed unless serious or irreversible prejudice is caused to the accused. In the instant case, no such prejudice will be caused to the accused. Thus there is no illegality in the belated production of the certificate under section 65B of the IEA, also. 10. However, the direction of the learned Sessions Judge in the impugned order that the contents of the CD should be displayed in open Crl.M.C. 6783 /22 **-:7:-** court is not legally tenable. It is settled that copies of every document, proposed to be relied upon by the prosecution must be given to the accused under section 207 of the Cr.P.C. Since the contents of the CD are not expressly stated to be containing any obscene matter or as containing any matter that intrudes into privacy, it is necessary for a proper defence to be raised that a copy of the CD be given to the petitioner. The impugned order is required to be modified to the above extent. 11. Thus, having regard to the nature of the evidence that is sought to be produced, I find no reason to interfere with the order of the learned Sessions Judge in permitting production of the certificate under section 65B of IEA. However, while affirming the order of the learned Sessions Judge, it is directed that a copy of the CD be given to the accused without further delay and before the witness is recalled for examination. With the above modification, this Crl M.C is disposed. **Sd/BECHU KURIAN THOMAS JUDGE** vps Crl.M.C. 6783 /22 ## **-:8:-** ## **APPENDIX** ## **PETITIONER ANNEXURES** **ANNEXURE A1 TRUE COPY OF PETITION DTD. 02.09.2022 IN CRL. M.P. NO. 2515 OF 2022 IN S.C. NO. 405 OF 2017 OF THE III ADDITIONAL SESSIONS JUDGE'S COURT, THODUPUZHA ANNEXURE A2 TRUE COPY OF OBJECTION DTD. 06.09.2022 FILED BY PETITIONERS IN CRL. M.P. NO. 2515 OF 2022 IN S.C. NO. 405 OF 2017 OF THE III ADDITIONAL SESSIONS JUDGE'S COURT, THODUPUZHA** **ANNEXURE A3 TRUE COPY OF ORDER DTD. 17.09.2022 IN CRL. M.P. NO. 2515 OF 2022 IN S.C. NO. 405 OF 2017 OF THE III ADDITIONAL SESSIONS JUDGE'S COURT, THODUPUZHA ARISING FROM CR. NO. 1495 OF 2016 OF KATTAPPANA POLICE STATION, IDUKKI DISTRICT**