Point of Law: Main documents, in respect of which the certificate under Section 65B of the Evidence Act is required, have already been marked or produced. Therefore, it cannot be found that production of the certificate now would cause prejudice to the accused.

ORDER :

The petitioner is the first accused in the case C.C.No.15/2011 pending in the Court of the Special Judge (SPE/CBI), Thiruvananthapuram.

2. The facts of the case do not need narration here. Suffice it to state that the offences alleged against the accused are punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and also under Section 120B of the Indian Penal Code.

3. The trial of the case is in progress before the Special Court. The prosecution has examined 26 witnesses and marked 37 documents in the case. While so, the Public Prosecutor filed Annexure-A2 application in the Special Court under Section 91 of the Code of Criminal Procedure, 1973 (for short 'the Code'). The prayer made in that application was to issue summons to Mr. M.V. Varghese, Assistant General Manager (Rtd), State Bank of Travancore, Pala Branch to produce certificate under Section 65B of the Indian Evidence Act in respect of the documents which have already been marked as Exts.P6 and P17 to P20. The Public Prosecutor also filed another application under Section 311 of the Code for issuing summons to two additional witnesses, including Mr. M.V. Varghese.

4. The petitioner filed objection to the above applications. But, as per Annexure-A5 order dated 20.10.2021, the Special Court allowed Annexure-A2 application. This order is challenged by the first accused in this petition filed under Section 482 of the Code.

5. Heard learned senior counsel who appeared for the petitioner and the learned Central Government Standing Counsel who appeared for the Central Bureau of Investigation (CBI).

6. It appears that the prosecution had omitted to produce certificate under Section 65B of the Indian Evidence Act in respect of some of the documents which have already been marked during the trial of the case. The Special Court allowed Annexure-A2 application on the finding that there is no bar to produce a certificate under Section 65B of the Indian Evidence Act at a later stage of the trial of the case.

7. Learned senior counsel for the petitioner contended that Mr. M.V. Varghese is not the person who is now in custody of the documents sought to be summoned. Learned senior counsel would also contend that the attempt of the prosecution is to fill the lacuna in evidence and it would cause serious prejudice to the accused.

8. Failure to produce certificate under Section 65B(4) of the Indian Evidence Act at the time of filing the charge-sheet is not fatal to the prosecution (See State v. M.R. Hiremath, AIR 2019 SC 2377).

9. 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 documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the charge sheet, it is always open to the investigation officer to produce the same with the permission of the Court. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently (See Central Bureau of Investigation v. R.S. Pai, AIR 2002 SC 1644).

10. If the certificate under Section 65B of the Evidence Act is not produced alongwith the charge-sheet, it does not mean that doors of the court are completely shut and it cannot be produced subsequently in any circumstance. So long as the hearing in a trial is not over, certificate under Section 65B of the Evidence Act can be directed to be produced by the Court at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence. But, the exercise of power by the courts in criminal trials in permitting documents to be filed at a stage after filing the charge-sheet should not r