Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 13 (MP)

Sanju @ Sanjay Mali v. State of M. P.

2019-01-03

SHAILENDRA SHUKLA

body2019
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. 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 propounded by the M.P. High Court in the case of Shardendu Tiwari vs. Ajay Arjun and Others in Election Petition No. 01/2014 dated 17-1-2017 in which it has been specifically laid down that the secondary electronic evidence can be admitted in evidence only if it is accompanied with contemporaneous certificate submitted by a person who had copied the same from primary evidence and prepared the CDs etc. It is, therefore, prayed that the impugned order be set aside under the plenary provisions of section 482 of the Criminal Procedure Code and the so called secondary evidence be not allowed to be brought on record. 4. It is, therefore, prayed that the impugned order be set aside under the plenary provisions of section 482 of the Criminal Procedure Code and the so called secondary evidence be not allowed to be brought on record. 4. Learned counsel for the State has submitted that there is no impropriety in the impugned order dated 26-2-2018 and an important piece of evidence cannot be allowed to escape on the basis of hyper technicalities. The question before this Court is whether the impugned order dated 26-2-2018 passed by learned IInd ASJ, Mhow is erroneous and it breaches the mandate of section 65- B of the Evidence Act? 5. It is admitted on the part of prosecution that the certificate under section 65-B of the Evidence Act was produced subsequent to the production of the CD and pen drive containing the alleged conversation. In the case of Sharadendu Tiwari (supra), a reference was made to a previous judgment of another coordinate Bench of M.P. High Court passed in the case of Kamal Patel vs. Ramkishore Dogne, 2016 (1) MPLJ 528 in Election Petition No. 24/2014 in which it had been observed that in order to ensure the source and authenticity of electronic record, a contemporaneously issued certificate is necessary. As per the facts in Sharadendu Tiwari’s case (supra), the petitioner had sought to exhibit compact disks of video recording of election meetings of the respondent No. 1. These CDs were prepared in the office of the Returning Officer and were officially recorded CDs. The petitioner had obtained a certification of the Returning Officer regarding authenticity of the CDs. However, the Returning Officer did not issue the certificate in the manner as prescribed under section 65-B of the Evidence Act which had to be given along with the certified copies. In order to make it legally compliant, the petitioner applied for fresh certified copies and along with such certified copies, he again filed a certificate in the proper manner as mandatory under section 65-B of the Evidence Act. However, there was an objection from the opposite party regarding its admission. In order to make it legally compliant, the petitioner applied for fresh certified copies and along with such certified copies, he again filed a certificate in the proper manner as mandatory under section 65-B of the Evidence Act. However, there was an objection from the opposite party regarding its admission. The Hon’ble High Court while considering the objections so raised considered the judgment of the Apex Court pronounced in the case of Anwar P.V. vs. P.K. Bashir, (2014) 10 SCC 437, in which it has been held that in order to admit an electronic record which is presented on a paper, stored or recorded or copied in optical or magnetic media produced by a computer can be admitted only on the satisfaction of the four conditions enumerated under section 65-B(2) of the Evidence Act. These four conditions are as follows:- (i) The electronic record containing the information should have been produced by the computer during the period over which the computer was regularly used to store or process the information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer. (ii) The information of the kind contained in the electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity. (iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents. (iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. 6. The Hon’ble Court thereafter dealt with the importance of section 65-B(4) of the Evidence Act, as per which a statement in any proceedings pertaining to an electronic record can be permitted to be considered as evidence provided the following conditions are satisfied: (a) There must be a certificate which identified the electric record containing the statement. (b) The certificate must describe the manner in which the electronic record was produced. (c) The certificate must furnish the particulars of the device involved in the production of that record. (b) The certificate must describe the manner in which the electronic record was produced. (c) The certificate must furnish the particulars of the device involved in the production of that record. (d) The certificate must deal with the applicable conditions mentioned under section 65-B(2) of the Evidence Act. (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. 7. In the case of Sharadendu Tiwari (supra), reference of Apex Court judgment in the case of Anwar P.V. (supra) was made in which it was observed as under: 16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, 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. All these safeguards are taken to ensure the source and authenticit, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more suspceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 17. Only if the electronic record is duly produced in terms of section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to section 45-A-opinion of Examiner of Electronic Evidence. 18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under section 65-B of the Evidence Act are not complied with, as the law now stands in India. 8. The co-ordinate Bench in the case of Sharadendu Tiwari’s (supra) noted that these observations of the Apex Court had already been considered by another co-ordinate Bench of the M.P. High Court in Kamal Patel’s case (supra) and in para-10 of the judgment passed in Sharadendu Tiwari’s case, it was noted that the original electronic record was the memory card of the concerned video camera. From the memory card the electronic record must have been transferred to a computer and from the computer to the official compact disk maintained in the office of the Returning Officer. Thus, the compact disk maintained in the office of the Returning Officer was secondary evidence and from that compact disk certified copies have now been filed along with certificates. The Court in para-11 observed that the certificates which have been filed cannot be said to have been issued contemporaneously at the time of transfer of record from the memory card to the official compact disk. These subsequently procured certificates clearly constitute an attempt on the part of the petitioner to fill up the gaps in the electronic evidence. Thus, the certificate being not contemporaneous in nature, the electronic evidence was not permitted to be adduced as secondary evidence. 9. One can thus see that the case of Sharadendu Tiwari (supra) was based on the basis of observation made by the Apex Court in Anwar P.V. case (supra) and at the cost of repetition the principle that was crystallized in Anwar P.V. case was that a secondary electronic evidence is not admissible until and unless it is accompanied with contemporaneous certificate issued by the person who prepared such electronic evidence. 10. The Hon’ble Apex Court again dealt with the same issue in a later judgment pronounced in Shafhi Mohammad vs. State of Himachal Pradesh, (2018) 2 SCC 801 and in this case the observations made in Anvar P.V. case (supra) were again considered and it was ultimately observed as under: 29. The applicability of procedural requirement under section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the Court in the absence of certificate under section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under section 65-B(4) is not always mandatory. 30. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies. 11. From Shafhi Mohammad’s case (supra), it transpires that the strict provision of 65-B of the Evidence Act is applicable only in a circumstance when the electronic record has been produced by a person who himself had prepared the electronic record and such person would be required to give a contemporaneous certificate otherwise such evidence will not be brought on record. However, if the electronic record has been sought to be produced by a person who is not creator of the electronic record, then there will not be any need to file a contemporaneous certificate. 12. Learned counsel for the petitioner has also mentioned the observations made in Shafhi Mohammad’s case (supra) and submitted that in the case at hand, the CD and the pen drive carrying conversation were prepared by Banesingh from the mobile of Heerasingh and it was Banesingh who had given the CD to the Investigating Officer and the CD was seized from Banesingh only and Banesingh being the creator of the secondary evidence, he cannot be allowed to adduce the same as the contemporaneous certificate has not been filed by him. 13. 13. On due consideration, it is very clear that the CD and the pen drive were seized from Banesingh and Banesingh is the creator of the CD and pen drive and this electronic record has been sought to be proven by its creator i,e. Banesingh and in these circumstances, in view of the observations made by the Apex Court in the case of Shafhi Mohammad’s case (supra), such evidence cannot be brought forth as it is not accompanied with contemporaneous certificate of Banesingh. In order to adduce the CD and pen drive as secondary evidence, Banesingh ought to have prepared a certificate as mandated under section 65-B(2) read with section 65-B(4) of the Evidence Act and it should have been made clear that this certificate was prepared on the same day on which the CD and pen drive were prepared/loaded. However, there is no such certificate on record, therefore, the electronic evidence sought to be adduced is inadmissible and the impugned order of the learned trial Court being in contravention of the observations made in Anvar P.V. case (supra) and Shafhi Mohammad’s case (supra), is liable to be set aside. 14. In the result, the petition succeeds and the impugned order is set aside. However, for imparting true justice, the relevant facts need to be brought on record and in search for truth, the Courts should be ready to find an alternative route which has remained unhindered by such road blocks. Without elaborating any further, the petition filed under section 482, Criminal Procedure Code is allowed. Let the record of the trial Court be sent back along with a copy of this order for perusal and compliance. Petition allowed.