Satish Meharwal vs State of M.P.

Prakash Shrivastava, J.—This Writ Petition under Article 226 and 227 of the Constitution is directed against the order of Special Judge (under Prevention of Corruption Act) dated 22/5/2012 whereby the learned Judge has rejected the petitioner''s objection in respect of admission of audio CD in evidence. The petitioner is facing a trial before the Special Judge in Crime No. 28/2011 for offence u/s 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. According to the petitioner, during the examination of chief panch witness L.R. Meena the Special Public Prosecutor had desired to exhibit the CD and the envelope of the CD to which the petitioner had submitted an objection in the form of application to the admissibility of the electronic evidence of CD, thereafter the recording of the statement of panch witness L.R. Meena was suspended without deciding the objection. Then the statement of the complainant Mohd. Faruq started and the Special Public Prosecutor again insisted on exhibiting and opening the envelope containing CD which was again objected by the petitioner and the said objection has been rejected by the Special Judge by the impugned order dated 22/5/2012.

Learned counsel for petitioner submits that while rejecting the petitioner''s objection, the Special Judge has not properly considered the provisions contained in Section 65-B of the Indian Evidence Act 1872. He further submitted that though the learned Special Judge has taken note of the judgment of this Court in the matter of Kailash Vs. Suresh Chandra, but has not considered the ratio of the said judgment. He further submitted that the objection which has been raised by the petitioner has not been properly decided by the learned Special Judge.

Learned counsel for respondent State has supported the impugned order.

Having heard the learned counsel for parties, it is noticed that the petitioner vide application dated 26/4/2012 had raised the specific objection that the conditions enumerated in Section 65-B of the Act are not complied with, therefore, the CD is not admissible in evidence. Learned Special Judge is required to properly appreciate the requirement of Section 65-B of the Act more particularly the requirement of the certificate as contained in 65(4) of the Act which he has failed to appreciate in the present matter. It is also found that though the learned Special Judge has taken note of the judgment of this Court in the matter of Kailash (supra) but has not examined the ratio of the said judgment and its effect in the present case.

Having considered the aforesaid aspect of the matter, we find that the impugned order passed by the learned Special Judge cannot be sustained and is hereby set aside with a direction to the learned Special Judge to decide the petitioner''s objection afresh keeping in view the provisions of Section 65-B of the Act and the aforesaid judgment of this Court and other relevant judgments on this point. The Writ Petition is allowed to the extent indicated above.