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2022 Supreme(Guj) 5

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
DHRUBEN GURALDAS BALANI - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CRIMINAL APPLICATION NO. 3973 of 2018
Decided On : 06-01-2022

Advocates Appeared:
For The Appellant :MR I.H. SYED SENIOR ADVOCATE WITH MR AKASH A SINGH ADVOCATE, MR. BHADRISH S RAJU
For The Respondent: NIMIT Y SHUKLA, MR PRANAV TRIVEDI APP.

Headnote:

Code of Criminal Procedure, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 120, 175, 179, 201, 232, 342, 346, 357, 376 and 377 - Criminal Procedure Code,1973 - Sections 309, 311, 294, 482, 313, 294(3), Sub-section (1) of Section 293 - Evidence Act - Sections 58, 65B, 157, 77 and 60 - Information Technology Act, 2000 - Section 79A - Examination-in-chief of victim - Commits rape - Offence being sessions triable, was committed to Sessions Court and was numbered as Sessions Case prosecution examined victim – P.W.27 at Exhibit-278 and during the course of examination-in-chief of victim, accused moved an application with prayer to exhibit the documents/electronic record produced at Serial Nos.1 to 8 on ground that the admission is not disputed by the parties - During the course of deposition of victim – P.W.27, State moved application under Exhibits-317 and 318 for exhibiting few electronic evidences and it is contended that accused had supported said application of State by producing an affidavit below Exhibit-308 – Held, Court without due certification - CDs cannot be admitted in evidence since mandatory requirements of Section 65B Evidence Act are not satisfied - It is clarified that notwithstanding what have stated herein in preceding paragraphs on secondary evidence on electronic record with reference to Section 59, 65A and 65B of Evidence Act, if an electronic record as such is used as primary evidence - Genuineness, veracity or reliability of the evidence is seen by court only after stage of relevancy and admissibility”. Thus, even if the parties to litigation, be it prosecution or defence, admits to the secondary evidence of electronic record and process to rely on it for Court to consider it as ‘genuine’ – petition rejected.

Judgement Key Points

Key Points: - Electronic records must comply with mandatory certification requirements under Section 65B of the Evidence Act to be admissible (!) (!) (!) . - Non-compliance with Section 65B conditions renders electronic records inadmissible, even if parties admit their genuineness (!) (!) . - The Court must be satisfied with the certification and conditions before admitting electronic evidence; mere assertion of genuineness is insufficient (!) (!) . - Original device possession by the owner can negate the need for certification if the device can be physically produced and its authenticity directly established (!) . - Electronic records are treated as documents, and their admissibility depends on passing the three-stage test: relevancy, admissibility, and proof (!) (!) (!) .

How to admit electronic records as evidence in criminal proceedings?

What are the conditions for admissibility of electronic records under the Evidence Act?

What is the effect of non-compliance with certification requirements for electronic records?


JUDGMENT :

1. Rule. Learned APP waives service of notice of rule on behalf of respondent State.

2. The petitioner is an accused in Sessions Case No.34 of 2014, which is being tried in the Court of Additional Sessions Judge, Gandhinagar. The FIR being C.R.No.I-218 of 2013 dated 07.10.2013 was registered before the Chandkheda Police Station, Gandhinagar for the offences punishable under Sections 120, 175, 179, 201, 232, 342, 346, 357, 376 and 377 of the Indian Penal Code.

2.1 The present petition has been filed for quashing and setting aside the orders passed under Exhibits 312, 318, 321 and 329 in Sessions Case No.34 of 2014 pending in the Court of learned Additional Sessions Judge, Gandhinagar and further prayed to allow exhibition of documents without disclosing the defence of the accused. It is contended that the learned Court was pleased to reject the prayer to exhibit documentary/electronic evidence. Thus, the petitioner under Articles 14, 21, 226 and 227 of the Constitution of India, 1950 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for short) seeks appropriate direction in connection with Sessions Case No.34/2014.

3. The petitioner states that after the completion of investigation, charge-sheet came to be filed on 09.01.2014. The offence being sessions triable, was committed to the Sessions Court, Gandhinagar and was numbered as Sessions Case No.34 of 2014. It is stated that during January 2018, the prosecution examined the victim – P.W.27 at Exhibit-278 and during the course of examination-in-chief of the victim, the accused moved an application, Exhibit-312 with the prayer to exhibit the documents/electronic record produced at Serial Nos.1 to 8 on the ground that the admission is not disputed by the parties. Thereafter, during the course of deposition of the victim – P.W.27, the State moved application under Exhibits-317 and 318 for exhibiting few electronic evidences and it is contended that accused had supported the said application of the State by producing an affidavit below Exhibit-308, which came to be rejected and therefore it is prayed that the said electronic evidence is required to be exhibited as being admitted by both the parties.

3.1 It is further stated that during the course of examination of the victim – P.W.27, the accused moved an application being Exhibit-321 before the learned Court below with the prayer to exhibit Serial nos.1 to 4 undisputed by the parties. The accused further moved application below Exhibit-329 contending that the documents / electronic records produced at Sr. No.1 and 2 are required to be exhibited and not merely marked, as the admission is not disputed by the parties.

3.2 Being aggrieved by the orders dated 03.03.2018, the petitioner has moved this Court contending that the impugned orders against the accused is illegal, invalid and bad in law and the orders are unreasoned and without application of mind in connection to the provisions of law, therefore, are required to be set aside.

4. Senior advocate Mr. I.H. Syed along with Mr. Akash A.Singh, learned advocate for the petitioner submitted that, the petitioner is a senior citizen and suffering from various health issues and further cannot be denied constitutional obligation in State for speedy trial. Mr. Syed referring to the provisions under the Criminal Amendment 2013, for speedy trial in relation to the offences under Section 376 and other specified offences, submitted that the trial is required to be completed within two months from the date of filing of the chargesheet. Mr. Syed submitted that, the mandate under Section 309 of Cr.P.C. of speedy disposal requires the trial to be conducted on day-to-day basis. Mr. Syed, therefore, submitted that the learned trial Court Judge has not considered the said mandate under the provisions of law while rejecting the application and

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