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2019 Supreme(MP) 441
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
SHAILENDRA SHUKLA, J.
Sanju @ Sanjay Mali – Petitioner
Versus
State of M.P. – Respondent
M. Cr. C. No. 12419 of 2018
Decided On : 03-01-2019
Advocate Appeared:
For the Petitioner: Ms. Sonali Goyal.
For the Respondents: Swapnil Sharma, Vismit Panot.
The central legal point established in the judgment is the necessity of a contemporaneous certificate for the admissibility of secondary electronic evidence under section 65-B of the Evidence Act.
Headnote:
EVIDENCE - Secondary Electronic Evidence - Evidence Act - Section 65-B
Fact of the Case:
The petitioner sought to quash the order allowing tape recorded conversation as evidence without a contemporaneous certificate. The conversation implicated the accused in a conspiracy to eliminate an advocate, resulting in a fatal accident. The prosecution filed an application under section 65-B of the Evidence Act to admit the electronic evidence, which was protested by the accused.
Finding of the Court:
The court found that the impugned order breached the mandate of section 65-B of the Evidence Act as the certificate was not contemporaneous, rendering the electronic evidence inadmissible. The petition was allowed, setting aside the impugned order.
Issues: The main issue was the admissibility of secondary electronic evidence under section 65-B of the Evidence Act, specifically regarding the requirement of a contemporaneous certificate.
Ratio Decidendi: The court emphasized the necessity of a contemporaneous certificate for admissibility of secondary electronic evidence, citing previous judgments and the four conditions enumerated under section 65-B(2) of the Evidence Act. It clarified that the strict provision of section 65-B is applicable when the electronic record has been produced by the creator, and relaxed the requirement of a certificate for evidence produced by a party not in possession of the device.
Final Decision: The impugned order was set aside, and the petition was allowed. The court emphasized the importance of adhering to the legal provisions for admissibility of electronic evidence.
ORDER :
1. This petition has been filed by the petitioner under section 482, Criminal Procedure Code seeking quashment of the order dated 26-2-2018 passed by IInd Additional Sessions Judge, Mhow in S.T. No. 632/16 allowing the application filed under section 65-B of the Evidence Act. By the impugned order, learned trial Court has allowed the tape recorded conversation to be admitted as evidence even though the application was not accompanied with a contemporaneous certificate.
2. As per the prosecution case on 29-3-2016 at about 13.00 hrs. accused driving a dumper No. MP-09-GE-3412 rammed into a Verna car bearing registration No. MP-09-CN-3767 on Mhow-Indore Road. After hitting the Verna car, the dumper struck two motorcycles which were behind the Verna car resulting in instantaneous death of one of the motorcycle rider viz. Sunil along with injuries caused to other motorcycle borne persons as well as car borne persons. A case under sections 279, 337 and 304-A, Indian Penal Code was registered by Police Station Kishanganj. However, during investigation, a telephonically recorded conversation implicating accused along with other coconspirators was obtained by the Investigating Officer, as per which there was a conspiracy to eliminate an Advocate viz. Jaisingh, who was traveling in the Verna car and the collision of Verna car with the dumper was pre-planned in order to give effect to the said conspiracy. Thus, there was no rash and negligent act on the part of the driver but a well thought out strategic planning on the part of the driver, who, at the behest of other conspirators, collided his dumper against the Verna car. However, the conspiracy could not succeed as Jaisingh escaped only with injuries but in the process a motorcycle rider lost his life. A chargesheet under sections 301, 302, 307, 120-B, 467 and 468 of the Indian Penal Code was filed before the committal Court on 20-8-2016. The case was subsequently committed to the Court of Sessions from where it was made over to IInd A.S.J, Mhow. Accordingly, charges were framed under the provisions of the Indian Penal Code as shown in the charge-sheet. On 19-2-2018 during the examination of witness Banesingh, the prosecution sought to exhibit a compact disk (CD) and a pen drive carrying the alleged telephonic conversation between the two persons i.e Heerasingh and Umabai in which Umabai had purportedly unraveled the conspiracy theory to Heerasingh. Witness Banesingh stated that the conversation was recorded in the mobile phone of Heerasingh and Banesingh transferred the conversation in a pen drive as also in a CD and gave the same to the S.P (Rural), Mhow along with a complaint. The Police investigated the matter on the basis of the complaint and filed the charge-sheet enhancing the provisions of Indian Penal Code from that under section 304-A to section 302, Indian Penal Code along with other provisions of the Indian Penal Code. An application under section 65-B of the Evidence Act was subsequently filed by the prosecution during recording of evidence of Banesingh seeking to admit the secondary electronic evidence stored in the CD and pen drive accompanied with a certificate, prepared subsequently in order to ensure compliance of directions contained under section 65-B of the Evidence Act. This application was protested against by the accused and the main objection was that the certificate, prepared subsequently, being not contemporaneous in nature, was being presented in contravention of mandatory provisions and on the basis of such certificate the secondary evidence was not liable to be brought on record. However, learned trial Judge by the impugned order set aside the objections and allowed the secondary evidence.
3. The petitioner in this petition filed under section 482, Criminal Procedure Code has challenged the impugned order submitting that the order is in gross violation of the mandatory legal provisions and the learned trial Court has also over looked the guidelines pr
