JUDGMENT

Umesh Chandra Sharma, J.

Heard Sri Krishna Gopal, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A for the State and perused the record.

2. The learned counsel for opposite party no. 2 neither appeared nor has the learned A.G.A filed any counter affidavit, hence heard the argument and perused the record.

3. The applicant has filed the present Application under Section 482 Cr.P.C to quash the order dated 02.08.2022 passed by A.S.J / Special Judge (Rape Z POCSO Act), Etah in Special Trial No 552 of 2021 - State v. Vivek Kumar arising out of Case Crime No. 35 of 2020 under Sections 3 63 , 366 I.P.C and 3A POCSO Act, 2012 Act, Police Station Pilua, District Etah.

4. In brief, facts of the case are that opposite party no. 2 lodged an F.I.R which was registered as Case Crime No. 35 of 2020 under Sections 3 63 , 366, 368, 506 I.P.C and 3A POCSO Act, in Police Station Pilua, District Etah. After investigation the I.O. submitted charge-sheet against the applicant and other co-accused persons under Sections 3 63 , 366, 368, 506, 376 I.P.C and 3A POCSO Act. Statement of the victim has been recorded under Section 164 Cr.P.C, which is annexed as annexure no. 3 to the affidavit. In this statement the victim has specifically stated that she had gone with the applicant with her own sweet will and has solemnized the marriage with him.

5. The learned court has taken cognizance and thereafter the trial proceeded. During the trial the victim has been examined as P.W. 2 and her statement is annexed as Annexure No. 4 to the affidavit. During the cross-examination the applicant's counsel moved an application for the submission of pen-drive and C.D to confront the statement of the victim and also to play it in the court. The application is annexed as Annexure No. 5 to the affidavit. The trial court vide its order dated 02nd August, 2022 rejected the application on the ground that electronic evidences are admissible only when a certificate under Section 65-B of the EVIDENCE ACT has been issued and in the present case no certificate is being filed therefore the same cannot be taken on record. A copy of the impugned order is annexed as Annexure No. 6 to the affidavit. The court below has rejected the application without applying its judicial mind, which is wholly illegal and arbitrary. The trial court may examine the electronic record as to whether it has substance or not, but the court rejected the same without applying judicial mind in a routine manner.

6. As per Section 138 of the EVIDENCE ACT , the examination-in-chief of the witnesses must relate to the relevant fact, but the cross-examination need not be confined to the fact to which the witness testifies in his examination-in-chief, therefore, the order dated 02.08.2022 passed by A.S.J / Special Judge (Rape Z POCSO Act) - II, Etah in Special Trial No. 552 of 2021 - State v. Vivek Kumar be set aside.

7. From the perusal of the impugned order dated 02.08.2022 it transpires that the trial court did not accept the Pen-drive and C.D. like electronic documents on the ground that until a certificate under Section 65-B of the Indian EVIDENCE ACT is not produced, the proposed pen-drive and C.D. cannot be taken on record.

8. From perusal of the record it is very much clear that the learned trial court without coming to the conclusion as to whether the proposed C.D and Pen-drive is primary evidence or secondary evidence required the certificate before admitting the said electronic documents.

9. This Court is of the view that first of all it was duty of the learned trial court to ascertain as to whether the proposed document is primary doc