Evidence Act, 1872: s. 65B(4) – Admissibility of electronic records – Secondary evidence of the electronic record based on the spy camera – Requirement of production of certificate u/s. 65B – When – Held: Requirement of producing a certificate arises when the electronic record is sought to be used as evidence in the trial – On facts, allegation that a trap was set up and second accused was apprehended while receiving money on behalf of the respondent towards initial payment of bribe – Complainant is alleged to have met the respondent during the course of the meeting and conversation was recorded on a spy camera – Prior thereto, the investigating officer had handed over the spy camera to the complainant – This stage does not represent the commencement of the investigation – At that stage, the purpose was to ascertain, in the course of a preliminary inquiry, whether the information furnished by the complainant would form the basis of lodging a first information report – No investigation as such commenced before the lodging of FIR – High Court erred in holding that the failure to produce a certificate u/s. 65B(4) at the stage when the charge-sheet was filed was fatal to the prosecution – Order of the High Court set aside – Order passed by the trial judge dismissing the discharge application filed by the respondent maintained.
Allowing the appeal, the Court
HELD: 1.1 Section 65B(4) of the Evidence Act, 1872 is attracted in any proceedings “where it is desired to give a statement in evidence by virtue of this section”. Emphasising this facet of sub-section (4) the decision in Anvar’s case holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. In CDR Ravindra V Desai’s case it was held that non-production of a certificate under Section 65B on an earlier occasion is a curable defect. Having regard to the said principle of law, the High Court erred in coming to the conclusion that the failure to produce a certificate under Section 65B(4) at the stage when the chargesheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise. [Paras 14, 16] [722-B, C, E, F; 723-A-B] Anvar P.V. v P.K. Basheer (2014) 10 SCC 473 : [2014]
11 SCR 399 ; Union of India and Others v CDR
Ravindra V Desai (2018) 16 SCC 272 – relied on.
1.2 In the instant case, on 15 November 2016, the complainant is alleged to have met the respondent. During the course of the meeting, a conversation was recorded on a spy camera. Prior thereto, the investigating officer had handed over the spy camera to the complainant. This stage does not represent the commencement of the investigation. At that stage, the purpose was to ascertain, in the course of a preliminary inquiry, whether the information which was furnished by the complainant would form the basis of lodging a first information report. In other words, the purpose of the exercise which was carried out on 15.11.2012 was a preliminary enquiry to ascertain whether the information reveals a cognizable offence. The High Court erred on all the above counts. The High Court erred in coming to the conclusion that in the absence of a certificate under Section 65B when the charge sheet was submitted, the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court evidently lost sight of the other material on which the prosecution sought to place reliance. Finally, no investigation as such commenced before the lodging of the first information report. The investigating officer took recourse to a preliminary inquiry. This was consistent with the decision in Lalita Kumari’s case. [Paras 21, 22] [726-E-H]
Lalita Kumari v Government of Uttar Pradesh (2014) 2 SCC 1 : [2013] 14 SCR 713 - relied on.
1.3 The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. [Para 23] [727-A-C]
1.4 The judgment and order of the High Court is set aside. The order passed by the trial judge dismissing the discharge application filed by the respondent is maintained. [Para 24] [727-F]
Sonu alias Amar v State of Haryana (2017) 8 SCC
570 : [2017] 8 SCR 151 ; P. Sirajuddin v State of Madras (1970) 1 SCC 595 : [1970] 3 SCR 931 ; State of Tamil Nadu v N Suresh Rajan (2014) 11 SCC 709 : [2014] 1 SCR 135 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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