IMPORTANT POINT
The absence of a Section 65-B certificate for electronic evidence is a curable defect and does not invalidate trial proceedings.

ORDER :

1. The petitioner is before this Court calling in question an order dated 09-01-2024 passed by the Additional District and Sessions Judge and Fast Track Special Judge, Davangere in S.C. No. 56 of 2021 by which, additional material that was placed before the Court is permitted to be marked, as also recalling PW-3 for further cross-examination in order to demonstrate contents of the compact disc that was marked on the said date. The petitioner would further challenge an order dated 11-06-2024 by which, the concerned Court permits recalling of PW-1 and PW-2 for further examination and consequently seeks quashment of entire trial.

2. Sans details, facts in brief, germane, are as follows:

The 2nd respondent is the complainant, cousin brother of the victim. The petitioner is accused No. 1. It is the case of the prosecution that the petitioner is a tuition teacher and the victim is his student. When the student was studying in 8th standard, she used to visit the house of the teacher/petitioner for the purpose of tuitions. It is alleged that the teacher raped the student, records the said act in his mobile phone and threatens the victim not to reveal the same to anyone. Long after the incident was over, accused No. 2 shares the video with the cousin brother of the victim, after which, the offence comes into life by which time six years have passed by. A crime then comes to be registered against the petitioner and several others in Crime No. 102 of 2020 for offences punishable under Sections 376 and 506 of the IPC, Sections 6 and 15 of the Protection of Children from Sexual Offences Act, 2012 and Section 66 of the Information Technology Act, 2008. The issue in the lis does not concern merit of the matter before the concerned Court.

3. The Police conduct investigation in the crime and file a charge sheet before the concerned Court. The complainant had transferred the video into a CD and had handed it over to the Investigating Officer. Notwithstanding the same, that fact was never made part of the charge sheet. Long after filing of the charge sheet, the prosecution seeks to get the CD marked in evidence through examination-in-chief of PW-3, the victim’s mother. It was seriously objected to by the petitioner on the score that it did not accompany to it a certificate under Section 65-B of the Indian Evidence Act. The Police then file an additional charge sheet with Section 65-B certificate to which again the petitioner objected, on the score that it was not in a prescribed format and that there was no question of filing additional charge sheet after commencement of evidence. The Court allows the prosecution to play the video in the CD and to be viewed by the mother of the victim. The mother identifies the daughter. The prosecution then files an application to recall the victim and the 2nd respondent/complainant PW-2 for further examination-in-chief. Since the CD was an important and material evidence, the petitioner and other accused objected to recall of PWs 1 and 2 on the score that the CD could not have been marked through PW-3 as it is filed after one year of commencement of evidence only to fill in lacunae with proper Section 65-B certificate. All the applications filed by the prosecution come to be allowed by order of the concerned Court. Aggrieved by the said order, the petitioner is before the Court in the subject petition.

4. Heard Sri H. Giridhar, learned counsel appearing for the petitioner and Sri P. Thejesh, learned High Court Government Pleader appearing for respondent No. 1.

5. The learned counsel appearing for the petitioner would vehemently contend that once the charge sheet is fled, charges are framed and evidence would commence, the Court cannot permit filing of a supplementary charge sheet. It is filed to mark electronic evidence initially. It did not contain a Section 65-B certificate. Later the certificate so issued which is appended was not by the Competent Authority. He would, therefore, contend that all the appli