Point of law: accused is not prejudiced in any manner by taking on record the certificate under Section 65-B of the Evidence Act at the later stage when trial is still on. Further, it is the duty of the court under Section 311 Cr.P.C. to see that the best available evidence is brought before it to prevent failure of justice and for the just decision of the case

JUDGMENT :

Dinesh Kumar Singh, J.

1. The present criminal revision has been referred by the accused-revisionist against the order dated 07.09.2019 passed by the learned Trial Court in Sessions Trail No. 385 of 2012 (C.B.I. v. Rahul Verma) arising out of Crime No. R.C. 14(S) of 2010 of Police Station C.B.I./S.C.B./Lucknow under Sections 302, 201, 364 IPC pending in the Court of learned Special Judge C.B.I., Court No. 2, Lucknow.

2. Vide impugned order, the learned Trial Court has accepted the application dated 06.08.2019 filed by the C.B.I. for taking on record the certificate under Section 65-B of the Evidence Act in respect of Call Details Record(C.D.R.) of Mobile Nos. 9869306235 and 9454741884.

3. The present case is based on circumstantial evidence. An FIR at Case Crime No. 842 of 2008 was registered under Section 302 and 201 IPC, Police Station Kalyanpur, District Kanpur on 03.09.2008 on the basis of inquest and post mortem report etc, and on the complaint of Mr. O.P. Arya,

4. This Court vide order dated 08.10.2010 passed in Writ Petition No. 15831(MB) of 2009 filed by Mr. S.K. Bajpai, transferred the investigation of both the cases to C.B.I./S.C.B., Lucknow. Charge-sheet No. 2 of 2012 was filed against the accused, Rahul Verma on 18.04.2012. According to the aforesaid charge-sheet, a stack of human bones was recovered from the I.I.T. Campus, Kanpur. It was sent to C.F.S.L. Chandigarh for examination. C.F.S.L. Chandigarh prepared its report dated 05.04.2011. According to the said report on the basis of Cellular and Molecular examination, the skeleton was of Sri Adesh Kumar Bajpai s/o. Surya Kumar Bajpai and Savitri Devi. Along with the aforesaid charge-sheet, document D-32, true copy of C.D.R. and D-33, E-mail messages and Exh.Ka29 and Ka25 were enclosed. Along with the charge-sheet certificate under Section 65-B of the Evidence Act was not enclosed.

5. The accused-applicant filed an application No. 25-B before the Trial Court stating that in absence of the certificate under Section 65-B of the Evidence Act, the electronic record/evidence is not admissible in evidence. The C.B.I. filed its objection to the said application and the learned Trial Court vide order dated 05.04.2019 held that as many as 41 witnesses were examined and the application dated 17.10.2018 was filed when the examination of P.W. 34, Rana Pratap Singh was on. The Trial Court held that decision on admissibility or inadmissibility of evidence should not be rendered at the stage of taking evidence on record inasmuch as there is no provision like Order XIII, Rule 3 C.P.C. in the Code of Criminal Procedure. Therefore, the trial Court said that the said application would be decided at the time of final stage and at this stage the decision could not be rendered on the admissibility or non admissibility of the evidence.

6. After the aforesaid order, it appears that the C.B.I. vide letter dated 12.07.2019 wrote to D.E.(Vigilance), BSNL, Kanpur Telecom District, Kanpur stating that during investigation of the case, C.D.Rs. of Mobile Nos. 9869306435 and 9454741884 were provided to the C.B.I. by the BSNL vide letter dated 08.06.2011 and now the Special Judge/C.B.I. trying the case had directed to produce the certificate under Section 65-B of the Evidence Act in respect of the above mentioned C.D.Rs. of the mobile numbers. It was, therefore, requested that certificate under Section 65-B of the Evidence Act, 1872 to be provided for the C.D.Rs. of the aforesaid two mobile numbers. Therefore, certificate under Section 65-B of the Evidence Act was issued on 20.07.2019 by Manoj Manjul, S.D.E. (MS) BSNL office of O/o. GM (Mobile Services), Kanpur in respect of C.D.Rs. of Mobile Nos. 9869306435 (for the period between 25.08.2007 to 28.08.2008) and 9454741884 (for the period between 10.08.2008 to 23.08.2008). It was said that the C.D.Rs. were directly fetched from the C.D.R. server Chandigarh by using printer of the available electronic records of BSNL, Kanpur. It was further said