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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 08.08.2019

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CRL.REV.P. 732/2017

CHATTRAPAL SINGH LODHA & ORS

..... Petitioners

versus

STATE OF NCT

..... Respondent

Advocates who appeared in this case:

For the Petitioner

:

Mr. Garvesh Kabra with Mr. Prakhar Srivastava and

Ms. Pooja Kabra, Advocates.

For the Respondent

:

Mr. Hirein Sharma, APP for the State.

ACP Anil Dureja, PS Crime Branch.

CORAM:

HON'BLE MR. JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

CRL.REV.P. 732/2017 & Crl.M.A.16099/2017 (stay)

1.

Status report is filed. Same is taken on record.

2.

Petitioners impugn order on charge dated 10.08.2017, whereby,

charges have been framed against the petitioners under Section

13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 read

with Section 120B Indian Penal Code.

3.

The only challenge raised by learned counsel for the petitioners

is that petitioners are liable to be discharged as the audio-video CDs

relied upon by the prosecution, being copies of the electronic

evidence, were not admissible in evidence without a certificate under

Section 65B of the Evidence Act and thus the Trial Court erred in

relying upon them even for the purposes of framing of charges.

Reliance is placed on the judgment of the Supreme Court in Anwar

P.V. vs. P.K. Bashir & Ors.: (2014) 10 SCC 473.

4.

Learned Additional Public Prosecutor for the State submits that

the requirement of a certificate under Section 65B would arise only if

secondary evidence is sought to be produced and further that it is only

at the stage of trial that the court is called upon to consider as to

whether the requirements of Section 65B of the Evidence Act, if

applicable, are satisfied or not.

5.

Learned APP for the State submits that where original device

and the original media, on which the recordings have been made, is

tendered in evidence, there is no requirement of furnishing a

certificate under Section 65B of the Evidence Act.

6.

He further under instructions from the Investigating Officer

submits that the original devices and original media on which the

recording was made have been produced by the prosecution and in

case secondary evidence of electronic record is produced, appropriate

certificate would be produced at the relevant stage.

7.

The Supreme Court of India in Anwar P.V. vs. P.K. Bashir &

Ors (supra) has held as under:-

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8.

The Supreme Court in Anwar P.V. (supra) heldthat any

documentary evidence by way of an electronic record under the

Evidence Act, in view of Sections 59 and 65-A, can be proved only in

accordance with the procedure prescribed under Section 65-B. The

purpose of this provision is to sanctify secondary evidence in

electronic form, generated by a computer. Such a certificate must

accompany the electronic record like computer printout, compact disc

(CD), video compact disc (VCD), pen drive, etc., pertaining to which

a statement is sought to be given in evidence, when the same is

produced in evidence. Further that electronic record by way of

secondary evidence shall not be admitted in evidence unless the

requirements under Section 65-B are satisfied. In the case of CD,

VCD, chip, etc., the same shall be accompanied by the certificate in

terms of Section 65-B obtained at the time of taking the document,

without which, the secondary evidence pertaining to that electronic

record, is inadmissible.

9.

Requirement of a certificate under section 65B of the Evidence

Act arises only if secondary evidence is sought to be produced in

place of original evidence. In case the original device and the original

media on which the recording is made is produced, there is no

requirement of a certificate under Section 65B of the Evidence Act. It

is only where the secondary evidence is sought to be tendered in

evidence that a certificate under Section 65B of the Evide