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2022 DIGILAW 677 (GUJ)

DHRUBEN GURALDAS BALANI v. STATE OF GUJARAT

2022-05-06

ILESH J.VORA

body2022
ORDER : 1. By way of this petition, the petitioner invoking extraordinary jurisdiction of this Court under Article 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C, 1973, seeks to quash and set aside impugned order dated 07.09.2021 passed by the learned 3rd Additional Sessions Judge, Gandhinagar, below Exh 499, in Sessions Case No. 34 of 2014, whereby, the application of the petitioner to permit her to produce 3 original video cassettes, dated 13.12.1988, 21.10.1991 and 1996 which were initially recorded by Sadhak Motiben Sevaram Pariyani, wherein, Dr. Nourm (resident of Canada) and other foreign lady had given a speech in English which was translated in Gujarati language by witness no.31, Ishwarbhai Naranji Naik, who had given his opinion in one religious discourse held at Surat, which video cassettes are necessary to confront and examine the witness Ishwarbhai Naik. The application Exh. 499 rejected by the trial Court vide its order dated 27.09.2021. 2. Aggrieved with the impugned order, present petition has been filed. 3. This Court has heard learned counsel Mr. P.P. Majmudar and learned APP Mrs. Krina Calla for the respondent State. 4. Brief facts giving rise to present petition is that, an FIR being CR.No. I.218 of 2013 dated 06.10.2013, came to be registered with Chandkheda Police Station, Gandhinagar against the petitioner and others for the offence punishable under Sections 120, 175, 179, 201, 232, 342, 346, 357, 376 and 377 of IPC. Pursuant to the FIR, charge-sheet came to be filed and case was committed to the sessions Court. During the trial, prosecution has examined PW-31, Ishwarbhai Naik. During the examination of the witness, petitioner herein moved an application Exh. 340, to prove and establish the opinion of the witness alleged to have been given, which had been recorded in 3 video cassettes along with its transcript with a prayer to dispense with the necessity to produce the certificate as provide under Section 65B of the Indian Evidence Act, which came to be rejected vide order dated 29.05.2018 and same was challenged before this Court, wherein, the petitioner herein had withdrawn the application with a liberty to file a fresh application before the trial Court for the same purpose as per guidelines set-out by the Apex Court in the case of Arjun Pandit Vs. Kailash Kushan Rao (2020) 7 SCC 1 .During the trial, sincere efforts made by the petitioner herein to trace out the original video cassettes which were found from one Sadhak Motibhai Pariyani and therefore, the petitioner herein preferred an application Exh. 499 to permit her to produce 3 video cassettes to confront and cross-examine the witness Ishwarbhai Naranji Naik. The learned Sessions Judge, while rejecting the application, observed that original source was in English language and thereafter, PW-31, had translated the same in Gujarati language and therefore, Gujarati language speech recorded by Motibhai Pariyani cannot be said to be original source as the contents are not in original source. The learned Sessions Judge further observed that speech given by Dr. Nourm is said to be a primary evidence and subsequent translation of the speech is in Gujarati language, can be said to a secondary evidence and therefore, production of necessary certificate under Section 65B(4) of the Indian Evidence Act is a pre-condition to admit in evidence. 5. Learned counsel Mr. P.P. Majmudar for and on behalf of petitioner herein, submitted that the learned trial Court has totally misinterpreted the facts on record as well as the distinction between primary evidence and secondary evidence. It is the case of the petitioner that during a program, when Dr. Nourm was giving his lecture in English, at the very same time, witness No.31, Ishwar Naik was translating the lecture in Gujarati language and same was recorded by way of videography. It was further submitted that 3 video cassettes recorded by one Sadhak Motibhai, who has also filed an affidavit regarding the same and therefore, there is no question of producing the certificate in compliance with the provisions of Section 65B(4) of the Evidence Act. Lastly, placing reliance on the case of Arjun Pandit (supra), it was submitted that the certificate is unnecessary if the original document itself is produced. 6. Learned APP Mrs. Krina Calla, for the State vehemently opposed the petition, contending that, the learned trial Court has rightly said that there is a need to produce certificate as contemplated under Section 65B(4) of the Act to prove the contents of secondary evidence. 6. Learned APP Mrs. Krina Calla, for the State vehemently opposed the petition, contending that, the learned trial Court has rightly said that there is a need to produce certificate as contemplated under Section 65B(4) of the Act to prove the contents of secondary evidence. In this background facts, it was submitted that present petition has been filed with a view to delay the trial proceedings and therefore, the petitioner failed to make out a case for interference by this court to exercise extraordinary jurisdiction. 7. Having heard the learned counsels for the respective parties and upon perusal of the findings recorded by the learned trial Court, the issue falls for consideration of this Court, whether impugned order dated 27.09.2021, needs any interference or not. 8. Before adverting to the rival contentions raised by the learned counsel for the respective parties, it is necessary to bear in mind the settled law with regard to admissibility of electronic evidence. If electronic record is filed in its original form to make its admissible before the court, no certificate in terms of Section 65 of the Evidence is required. The Indian Evidence Act regulates the procedure for taking of evidence before a court of law. The law of evidence requires that, best evidence must be given in proof of the facts or relevant facts and primary evidence is considered to be the best evidence since it is the best available corroboration of existence of a fact. Section 64 of the Evidence Act provides that the documents must be proved by primary evidence, whereas, Section 65 provides under what circumstances, the secondary evidence is admissible. Sections 65A and 65B were introduced in the chapter relating to documentary evidence. Section 64 of the Evidence Act provides that the documents must be proved by primary evidence, whereas, Section 65 provides under what circumstances, the secondary evidence is admissible. Sections 65A and 65B were introduced in the chapter relating to documentary evidence. Section 65A states that the contents of electronic record may be proved in accordance with the provisions of Section 65B of the Act, which provides that any information contained in the electronic record shall be deemed to be also a document and shall be admissible in any proceedings without further proof or production of the original as evidence, whereas, Section 65B (4) provides that, in any proceedings where it is desire to give statement in evidence, a certificate as prescribed being required to be issued and signed by a person occupying the responsible official position in relation to operation of relevant device or the management of the relevant activity shall be evidence in any matter as indicated in the certificate. 9. Recently in the case of Arjun Pandit (supra), the Apex Court in a Reference dealing with the interpretation of Section 65B of the Evidence Act, has held that the certificate required under Section 65B(4) of the Act is a condition precedent, to the admissibility of the evidence by way of electronic record. The Apex Court further held that the requisite certificate in terms of Section 65B(4) is unnecessary if the original document itself is produced. 10. In the facts of present case, 3 original video cassettes have been produced by the petitioner herein before the trial Court, which were recorded by Motibhai Sevaram Pariyani. The speech referred in the cassettes was delivered by Dr. Nourm and same was translated at the same time when Dr. Nourm was giving his speech by PW-31 Ishwarbhai Naik. In this background facts, this Court is of the view that the speech recorded in 3 video cassettes can be said to be a primary evidence, as the PW-31 had translated the speech of English language, at the same time, when speech was delivered by Dr. Nourm. The learned trial Court failed to appreciate the facts that as such there is no subsequent translation of the speech. The translation was made at the time of speech delivered by Dr. Nourm. Nourm. The learned trial Court failed to appreciate the facts that as such there is no subsequent translation of the speech. The translation was made at the time of speech delivered by Dr. Nourm. This Court is the view that when primary evidence in the form of electronic evidence, being produced before the Court, question does not arise to comply Section 65B(4) of the Indian Evidence Act. 11. In view of the foregoing reasons, case is made out warranting interference in the impugned order. Hence, the impugned order passed below Exh. 499 in Sessions Case No. 34 of 2014 dated 27.09.2021 is hereby quashed. The petition is allowed. The matter is remitted to the trial Court for fresh decision on the application Exh. 499. The learned trial Court shall decide the same in accordance with law after considering the observations made hereinabove and pass appropriate order. It is learnt that the coordinate Bench of this Court, directed the trial Court to decide the trial within a period of 6 months, and the prayer for further extension will not be entertained. Parties are directed to cooperate with the proceedings so as to complete the trial in a time limit.