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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

934 CRIMINAL WRIT PETITION NO.990 OF 2022

SUBHASH LACHHMANNA ANMULWAR

VERSUS

THE STATE OF MAHARASHTRA

Mr. Narayan B. Narwade, Advocate for the petitioner

Mr. P. N. Kutti, APP for the respondents/State

CORAM : KISHORE C. SANT, J.

DATE: 22^nd November, 2022

P. C.

1.

This petition is against an order dated 14-06-2022

passed by the learned Judge, Special Court (ACB), Ahmednagar

on an application below Exh.75 in Special (ACB) Case

No.19/2015, moved by the prosecution praying to the trial court

to direct the officer of the court to hear the tape recorded

conversation from memory card and to compare the transcript

with the same that is produced in the court. This application

came to be allowed. The Superintendent (Muddemal) of the

Court was directed to verify the transcript with the voice

recording noted in the panchanama already exhibited at Exh.37

and 42 and submit a report.

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2.

The petitioner who is facing trial for the offences

punishable under Sections 7, 12, 13(1)(d) and 13(2) of the

Prevention of Corruption Act and Section 201 of the Indian

Penal Code against him, has the challenged order on the

grounds firstly that transcription is already on record and the

same is exhibited through witness. Second that now the

evidence of the prosecution is practically over. At this stage the

application is moved by the prosecution. Thirdly that the

prosecution on its own has to prove the conversation/

transcription. Fourthly that prosecution has filed this application

at belated stage only to fill-up the lacuna in the evidence. The

court need not exercise its power for the purpose of getting

something on record by way of evidence. This exercise will

cause prejudice to the right of the accused etc.

3.

Thus, it is the submission of the learned counsel for

the petitioner that merely because power is vested in the court

by virtue of Rule 24 of Chapter VI of the Criminal Manual the

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same may not be invoked in such a manner. He submits that the

criminal manual was prepared when there was no provision like

65-B of the Evidence Act. Now in view of Section 65-B the

recorded conversation in any digital form needs to be proved

only by adducing a certificate under section 65-B etc. The

prosecution wants to prove something against accused without

following process as required under the Evidence Act. He

submits that the Superintendent of Court is not an expert to give

his opinion on the voice of a person.

4.

Learned counsel for the petitioner relied upon the

judgment delivered by the Hon’

ble Apex Court in the Civil

Appeal No. 4226/2012 wherein the Hon’

ble Apex Court has

considered provision under sections 65-A & 65-B of the Evidence

Act and the provisions of Information Technology Act. In respect

of the statement of objects and reasons to the Information

Technology Act, it is observed as below:

New communication systems and digital

technology have made drastic changes in the way we

live. A revolution is occurring in the way people

transact business. In fact, there is a revolution in the

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way the evidence is produced before the court.

Properly guided, it makes the systems function faster

and more effective. The guidance relevant to the

issue before us is reflected in the statutory provisions

extracted above. Any documentary evidence by way

of an electronic record under the Evidence Act, in

view of Sections 59 and 56-A, can be proved only in

accordance with the procedure prescribed under

Section 65-B. Section 65-B deals with the

admissibility of the electronic record. The purpose of

these provisions is to sanctify secondary evidence in

electronic form, generated by a computer. It may be

noted that the section starts with a non obstante

clause. Thus, notwithstanding anything contained in

the Evidence Act, any information contained in an

electronic record which is printed oin a paper,

stored, recorded or