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SUPREME COURT OF INDIA
VIKRAM NATH, RAJESH BINDAL, JJ
State of Karnataka – Appellant
Versus
T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi – Respondent
Criminal Appeal No. 3456 of 2023, Special Leave Petition (Crl.) No. 6548 of 2022
Decided On : 06-11-2023
(A) Indian Evidence Act, 1872 – Section 65B – Criminal Procedure Code, 1973 – Section 311 – Electronic evidence – Recall of witness – Serial bomb blasts – In such terror attacks investigation had to be scientific – Electronic devices were recovered and seized – Trial Court without appreciating legal position in this regard had dismissed application – It was primarily for reason of delay in producing certificate under Section 65B of the Act – Certificate under Section 65B of the Act is not required if electronic record is used as a primary evidence – Certificate under Section 65-B of the Act is unnecessary when original document (primary evidence) itself is produced – Non-production of Certificate under Section 65B of Act is a curable defect – Certificate under 65-B of the Act can be produced at any stage if trial is not over – Courts below had gone on a wrong premise to opine that there was delay of six years in producing certificate whereas there was none – Matter was still pending when application to resummon witness and produce certificate under Section 65-B of the Act was filed under Section 311 of Cr.P.C. (Paras 7, 8, 9, 10, 11 and 12)
(B) Criminal Procedure Code, 1973 – Section 311 – Indian Evidence Act, 1872 – Section 65B – Recall of witness – Production of electronic evidence – Serial bomb blasts – Fair trial in a criminal case does not mean that it should be fair to one of parties – Rather, object is that no guilty should go scot-free and no innocent should be punished – Certificate under Section 65-B of the Act, which is sought to be produced by prosecution is not an evidence which has been created now – It is meeting requirement of law to prove a report on record – By permitting prosecution to produce certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to accused – Accused will have full opportunity to rebut evidence led by prosecution – This is the purpose for which Section 311 of Cr.P.C. is there – Object of Code is to arrive at truth – However, power under Section 311 of Cr.P.C. can be exercised to subserve cause of justice and public interest – In case in hand, this exercise of power is required to uphold truth, as no prejudice as such is going to be caused to accused – Application filed by prosecution under Section 311 of Cr.P.C. allowed. (Paras 15 and 16)
Facts of the case:
Vide order passed by High Court in Criminal Petition No. 2585 of 2019 filed by appellant-State, order dated 18.01.2018 passed by Trial Court was upheld. Vide the aforesaid order an applications4 filed by prosecution under Section 311 of Cr.P.C., seeking recall of M. Krishna (PW-189) and permit prosecution to produce report and certificate under Section 65B of Act was rejected.
Findings of Court:
Orders passed by the courts below are set aside. Resultantly, application filed by the prosecution under Section 311 of the Cr.P.C. is allowed. Trial Court shall proceed with the matter further.
Result : Appeal allowed.
Key Points: - The certificate under Section 65B of the Indian Evidence Act is not required if the electronic record is used as primary evidence; production of the certificate can be a curable defect if the trial is not over. (!) - A certificate under Section 65B can be produced at any stage of the trial if the trial is not over, balancing rights of both parties and avoiding prejudice to the accused. (!) - The prosecution was allowed to recall a witness and produce the 65B certificate under Section 311 Cr.P.C. to prove the CFSL report, as it serves to uphold the truth and is not prejudicial to the accused. (!) (!) - The original electronic devices and the CFSL report dated 29.11.2010 were already on record; the issue was only with the absence of a 65B certificate at the relevant time. (!) (!) - Anwar PV v. Basheer and Arjun Panditrao Khotkar establish that when electronic records are used as primary evidence, 65B certification is not mandatory; otherwise, it differentiates between original electronic information (primary) and copies (secondary). (!) (!) (!) - The court emphasized that the object of the Code is to arrive at the truth; delay in certificate production should not automatically prejudice the accused if no substantial prejudice occurs. (!)
JUDGMENT :
RAJESH BINDAL, J.
1. Leave granted.
2. Vide order1 [Dated 27.01.2022] passed by the High Court2 [High Court of Karnataka at Bengaluru] in Criminal Petition No. 2585 of 2019 filed by the appellant-State, an order dated 18.01.2018 passed by the Trial Court3 [XLVIII Additional City Civil and Sessions Judge (Special Court for Trial of CBI Cases) City Civil Court, Bangalore] was upheld. Vide the aforesaid order an applications4 [S.C. Nos. 1480/2010 and 1481/2010] filed by the prosecution under Section 311 of the Cr.P.C.5 [The Code of Criminal Procedure, 1973] seeking recall of M. Krishna (PW-189) and permit the prosecution to produce the report and the certificate under Section 65B of the Act6 [The Indian Evidence Act, 1872] was rejected.
3. Genesis of the trial is that in a serial bomb blasts which took place in Bangalore on 25.07.2008, one woman lost her life whereas several persons were injured. Several FIRs were registered at Madivala7 [Criminal Case No. 483/2008], Koramangala8 [Criminal Case No. 297/2008], Byatarayanapura9 [Criminal Case No. 314/2008], Kengeri10 [Criminal Case No. 117/2008], Ashokanagar11 [Criminal Case No. 260/2008 and 261/2008], Sampangirama12 [Criminal Case No. 92/2008] and Adugodi13 [Criminal Case No. 217/2008] Police Stations for the offence punishable under Sections 120B, 121, 121A, 123, 153A, 302, 307, 326, 337, 435, 506 and 201 of the IPC14 [The Indian Penal Code, 1860] and Sections 3 to 6 of the Explosive Substances Act, 1908, Sections 3 and 4 of the Prevention of Destruction and Loss of Property Act, 1981, Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967. During the course of investigation certain electronic devices such as one Laptop, one external Hard Disc, 3 Pen Drives, 5 floppies, 13 CDs, 6 SIM cards, 3 mobile phones, one memory card and 2 digital cameras etc. were seized at the instance of accused no. 3 i.e. Sarafaraz Nawaz @ Seju @Hakeem. The original electronic devices were submitted before the Trial Court along with the additional charge-sheet dated 09.06.2010. The Trial Court vide order dated 07.04.2017 ordered that the CFSL Report dated 29.11.2010 with reference to the electronic devices was inadmissible in evidence in the absence of a certificate under Section 65-B of the Act. Though, according to the prosecution, the original devices being already on record (as a primary evidence), there was no requirement of a certificate under Section 65-B of the Act. Still, as a matter of abundant caution, a certificate under Section 65-B of the Act was obtained and when M. Krishna (PW-189) was further examined in chief on 27.04.2017, a certificate under Section 65-B of the Act was sought to be produced. Objection was raised by the counsel for the accused. Vide order dated 20.06.2017, the Trial Court opined that the certificate issued under Section 65-B of the Act produced on 27.04.2017 was not admissible in evidence. Thereafter an application was filed in the court to allow the prosecution to recall M. Krishna (PW-189) and to produce the certificate under Section 65-B of the Act in evidence. The application was rejected by the Trial Court holding the same to be delayed. The order of the Trial Court was upheld by the High Court. It is the aforesaid order which is under challenge before this Court.
4. Mr. Aman Panwar, Additional Advocate General, appearing for the appellant-State, in his brief argument submitted that in the case in hand, which shocked the whole country as such, serial bomb blasts in Bangalore were master minded by the accused. The courts below should have considered the application in that light. What was sought to be produced by the prosecution was not something, which was created later on. Rather it was merely a certificate under Section 65B of the Act. The primary evidence in the form of electronic devices was already on record along with the report from CFSL. It is only because th
(1) Electronic evidence – Certificate under Section 65B of Evidence Act is not required if electronic record is used as a primary evidence – Non-production of Certificate under Section 65B of Evidenc....
The certificate under Section 65-B of the Evidence Act must accompany the electronic record when it is produced in evidence, and the prosecution is obligated to supply all documents upon which relian....
The main legal point established in the judgment is that the certificate under Section 65B(4) of the Evidence Act is a condition precedent to the admissibility of electronic evidence, and the trial J....
The duty of the trial judge to ensure the just determination of the case and the importance of following the legal provisions for admitting electronic evidence.
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