Crl.A.671/2022

1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 671 of 2022

(Arising out of SLP (Crl) No 1225 of 2022)

Jyoti Sharma

Appellant

Versus

State of Rajasthan and Another

Respondents

O R D E R

1

Leave granted.

2

Sessions Case No 6 of 2019 is pending before the Special Judge, Special

Court, Protection of Children from Sexual Offences¹ Act 2012 No 1, Jaipur

Metropolitan Second, Jaipur. Charges have been framed. The second

respondent, who is the accused is Additional Inspector General of the Police.

1“POCSO Act”

Digitally signed by

Chetan Kumar

Date: 2022.04.28

15:26:40 IST

Reason:

Signature Not Verified

Crl.A.671/2022

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3

During the course of the trial the evidence which was sought to be adduced

by the prosecution was recorded. Final arguments were heard at which stage,

an application was filed on behalf of the complainant who is in appeal before

this Court, under Section 311 of the Code of Criminal Procedure 1973 for

allowing PW-8 to be summoned for reexamination so as to produce a pen

drive in the evidence. The application was rejected by the trial Judge by an

order dated 7 December 2021. The trial Judge held that (i) the application did

not state the source from which the pen drive was prepared or obtained; (ii)

no certificate from a recognized forensic lab was produced in regard to the

authenticity of the material contained in the pen drive; and (iii) no voice test

had been carried out for the purpose of certifying the person whose voice is

stated to be reflected in the pen drive. On these grounds, the trial Judge held

that there was no necessity of taking the pen drive on the record or for

calling PW-8 for reexamination for that purpose.

4

The order of the trial Judge was questioned before the High Court in a

proceeding under Section 482 CrPC. A Single Judge of the High Court of

Rajasthan has dismissed the miscellaneous petition, while agreeing with the

reasons which weighed with the trial Judge.

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5

Notice was issued in these proceedings on 21 February 2022, when liberty

was granted to implead the accused as a respondent to the present

proceedings. In pursuance of the order issuing notice, the second respondent

has entered appearance through counsel and has filed a counter affidavit.

The State of Rajasthan has also appeared through Standing Counsel in these

proceedings.

6

The Special Judge rejected the application for reexamination of PW-8 for the

purpose of producing the pen drive in evidence. The grounds which weighed

with the trial Judge are essentially based on whether the contents of the

pend drive would be eventually proved in evidence. The trial Judge observed

that the source from which the pen drive had been prepared was not stated;

a certificate of a forensic lab has not been produced and no voice test had

been carried out in respect of the voice of the person purportedly in the pen

drive. These are evidently matters which relate to evidentiary proof. Once

PW-8 is summoned for reexamination, it would be undoubtedly open to the

accused to cross-examine the witness. Whether the pen drive is admissible in

evidence and if so, the authenticity of its contents would have to be decided

on the basis of the established legal position. The effect of the order of the

trial Judge is to shut out even an opportunity being granted to PW-8 to

produce and mark the pen drive on grounds which relate essentially to the

Crl.A.671/2022

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merits of whether the pen drive is admissible and its contents are true.

Neither the trial Judge nor the High Court for that matter were therefore

justified in declining to entertain the request of the appellant.

7

In the counter, which has been filed on behalf of the second respondent, it

has been sought to be submitted that the case of the appellant that the pen

drive was handed over to the police during the course of the investigation

does not appear to be supported by any contemporaneous record.