Veer Singh vs CBI

Rakesh Kainthla, J

The present revision is directed against the order dated 17.5.2025, passed by learned Special Judge (CBI Court), Shimla (learned Trial Court), vide which an application filed under Section 311 of Cr.P.C. was allowed.

Briefly stated, the facts giving rise to the present petition are that a trial is pending before the learned Trial Court for the commission of offences punishable under Sections 120-B of the Indian Peal Code (IPC) and Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption (PC) Act. During the pendency of the trial, an application under Section 311 read with Section 91 of Cr.P.C. was filed by the CBI seeking permission to recall Amitosh Kumar (PW5) along with documents. It was asserted that Amitosh Kumar (PW5) produced the certificate under Section 65B of the Indian Evidence Act. The witness did not produce the certificate under Section 65B of the Indian Evidence Act. The original SD cards were on record and were duly exhibited during the prosecution's evidence. It was necessary to issue directions to Amitosh Kumar (PW5) to produce the certificate under Section 65B of the Indian Evidence Act. Production of the certificate would not cause any prejudice to the accused. Hence, it was prayed that the present application be allowed and the witness be recalled.

The application was opposed by filing a reply taking preliminary objections regarding the application having been filed to delay the trial and fill up the lacuna. It was asserted that the witness never stated before the Court that he had prepared Ex.P4 and sealed it. The certificate has to be prepared at the time of the preparation of the copy/document. The application does not mention that any certificate was prepared while preparing the copy of the record. The certificate was not relied on in the charge sheet, and it cannot be prepared at this juncture. Therefore, it was prayed that the application be dismissed.

Learned Trial Court held that one sealed parcel was produced during the examination of PW1. The parcel contained a DVD, which was exhibited as Ex.P-4. The witnesses identified its contents. This DVD was prepared by PW5, who had not given the certificate under Section 65B of the Indian Evidence Act. The contents of the DVD were copied from SD cards. Therefore, the production of a certificate under Section 65B of the Indian Evidence is necessary. The certificate can be produced at any stage. The accused would not suffer any prejudice as they have a right to cross-examine the witness. Consequently, the application was allowed.

Being aggrieved from the order passed by the learned Trial Court, the petitioner/accused has filed the present revision asserting that PW5 did not state that he had authored or sealed Ex.P4; therefore, the order passed by the learned Trial Court is not justified. The order would provide an opportunity to the prosecution to fill the lacuna. No certificate was produced along with the application filed by the prosecution. No justifiable reason was given for recalling the witness for further examination. Hence, it was prayed that the present application be dismissed.

I have heard Mr. N.K. Bhalla, learned counsel for the petitioner and Mr. Janesh Mahajan, learned Special Public Prosecutor, for the respondent/CBI.

Mr. N.K. Bhalla, learned counsel for the petitioner, submitted that the learned Trial Court erred in allowing the application. The certificate was not prepared at the time of preparing the DVD. The witness never deposed about the preparation of the DVD, and learned Trial Court erred in allowing the application. The application was filed to fill the lacuna left by the prosecution. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

Mr. Janesh Mahajan, learned Special Public Prosecutor, for the respondent-CBI, submitted that no interference is required with the order passed by the learned Trial Court.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The present revision has been filed against an order passed under Section 311 of the Cr.PC. It was held by this Court in Vishwa Narayan Goswami v. Ram Rattan Sharma, latest HLJ 2009(1) 552, that an order dismissing an application for leading additional evidence is an interlocutory order, which is not amenable to the revisional jurisdiction. It was observed: -

“7. The first question staring at the face is whether the order passed under Section 311 of the Code of Criminal Procedure by the learned trial Magistrate is an "interlocutory order" and not amenable to the revisional jurisdiction. My answer to it is in affirmative. The order passed by the court under Section 311 Cr.P.C. is an "interlocutory order" and revision against it is barred under Section 397(2) of the Code of Criminal Procedure.

In fact, the word "interlocutory order" has not been defined in the Code. However, in Amar Nath's case 1978 SCC (Cri)10, the Supreme Court held that the word "interlocutory order" in Section 397(2) of the Code has been used in a restricted sense and not in a broad or artistic sense and it merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights of the parties but any order which substantially affects the right of the parties can not be said to be an "interlocutory order".

In Madhu Limaye's case, 1980 SCC (Cri)695, a three-judge Bench of the Supreme Court held that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, cannot be held to be an "interlocutory order".

Further in Rajendra Kumar Sita Ram Pande vs. Uttam and another 1999(3) SCC 134, the apex court took note of the above proposition of law and held that the above being the position of law that if the order is not purely interlocutory but intermediate or quasi-final, the powers of High Court would be attracted.

Yet in another case K.K. Patel vs. State of Gujarat (2000)6 SCC 195, while relying upon Rajendra Kumar Sita Ram Pande's case supra, held that it is well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage, the feasible test is whether upholding the objections raised by a party, it would result in culminating the proceedings if so any order passed on such objection would not be merely interlocutory in nature as envisaged under Section 397(2) of the Code.

In the present case, the order passed on the application under Section 311 Cr.P.C. by the learned trial court is neither an intermediate nor a quasi-final order and further the proceedings in the main case against the accused petitioner would not culminate even on acceding to the request of the respondent, therefore the order impugned in revision petition by the accused before the learned Sessions Judge is an "interlocutory order" and was not amenable to his revisional jurisdiction.

It was held by the Hon’ble Supreme Court of India in Sethuraman vs Ratamanickam (2009) 5 SCC 153, that an order refusing to call the documents and lead additional evidence is interlocutory. It was observed: -

“5. Secondly, what was not realised was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C. were an interlocutory orders and, as such, the revision against those orders was clearly barred under Section 397(2) Cr. P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused, and the only defence that was raised was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and the other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), the revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.”

This judgment was followed by the Andhra Pradesh High Court in M. Koteswara Reddy v. State of A.P., 2019 SCC OnLine AP 318, and it was held that an application under Section 391 of Cr.P.C. is interlocutory and no revision lies against an order dismissing such an application. It was observed: -

“7. Now, it is well-settled law that an order summoning a witness under Section 391 Cr. P.C., the summoning of documents under Section 91 Cr. P.C., etc., are all pure and simple interlocutory orders. On the same analogy, the petitioner filed under Section 391 Cr. P.C. in the appellate Court also to summon a witness, even for further cross-examination, is also a pure and simple interlocutory order. Section 397(2) Cr. P.C. imposes a clear bar to exercise the power of revision under Section 397(1) Cr. P.C. in respect of interlocutory orders.

xxx

In view of the dictum laid down in the aforesaid judgment of the Apex Court that revision filed under Section 397 (1) Cr.P.C. against an interlocutory order is not maintainable in view of the bar engrafted under Section 397 (2) Cr.P.C., this revision, which is preferred against an interlocutory order passed under Section 391 Cr.P.C., to recall PW.1 for cross-examination, is also not maintainable.”

Delhi High Court also took a similar view in Mohd. Hasan v. State, 2023 SCC OnLine Del 5469 and held:

“11. It is trite law that an order passed under Section 311 Cr. P.C. is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr. P.C. Therefore, the present revision petition filed against the order dated 31.03.2023 passed by the Ld. ASJ dismissing the application under Section 311 Cr. P.C. is thus not maintainable.”

Hence, the present revision petition is not maintainable and is liable to be dismissed on this ground alone.

Even otherwise, the learned Trial Court had rightly held that the certificate under Section 65B of the Indian Evidence Act can be filed at any stage. A similar situation arose before the Hon’ble Supreme Court in State of Karnataka v. T. Naseer, 2023 SCC OnLine SC 1447, wherein an application was filed for re-summoning the witness and producing the certificate under Section 65B of the Indian Evidence Act. It was held by the Hon’ble Supreme Court that the certificate under Section 65(B) could be produced at any time, and its production does not amount to any prejudice to the accused. It was observed: -

The aforesaid issue was subsequently considered by this Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1. It was opined that there is a dif-ference between the original information contained in a computer itself and the copies made therefrom. The former is primary evidence and the latter is secondary one. The certificate under Section 65-B of the Act is unnecessary when the original document (i.e., primary evidence) itself is produced. Relevant paragraph ‘33’ thereof is extracted below:

“33. The non obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65-B, which is a special provision in this behalf — Sections 62 to 65 being irrelevant for this purpose. However, Section 65-B(1) clearly differentiates between the “original” document — which would be the original “electronic record” contained in the “computer” in which the original information is first stored — and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that Section 65-B differentiates between the original infor-mation contained in the “computer” itself and copies made therefrom — the former being primary evidence, and the latter being secondary evidence.” (Emphasis added)

In State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, this Court, after referring to the earlier judgment in An-war's case (supra), held that the non-production of the Certificate under Section 65B of the Act is a curable defect. Relevant paragraph ‘16’ thereof is extracted below:

“16. The same view has been reiterated by a two-Judge Bench of this Court in Union of India v. Ravin-dra V. Desai, (2018) 16 SCC 273. The Court emphasised that non-production of a certificate under Section 65-B on an earlier occasion is a curable defect. The Court re-lied upon the earlier decision in Sonu v. State of Haryana, (2017) 8 SCC 570, in which it was held:

‘32. … The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Ap-plying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prose-cution an opportunity to rectify the defi-ciency.’(Emphasis added)

Coming to the issue as to the stage of production of the certificate under Section 65-B of the Act is concerned, this Court in Arjun Panditrao Khotkar's case (supra) held that the certificate under 65-B of the Act can be produced at any stage if the trial is not over. Relevant paragraphs are ex-tracted below:

“56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused be-fore commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permit-ting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the ac-cused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examin-ing any application by the prosecution under Sec-tions 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may, in ap-propriate cases, allow the prosecution to produce such a certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case, discretion to be exercised by the court in accor-dance with law.

Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence.” (Emphasis added)

The courts below had gone on a wrong premise to opine that there was a delay of six years in producing the certifi-cate, whereas there was none. The matter was still pending when the application to resummon M. Krishna (PW-189) and produce the certificate under Section 65-B of the Act was filed under Section 311 of the Cr. P.C.

It was only vide order dated 07.04.2017 that the report prepared on the basis of electronic devices was refused to be taken on record by the Trial Court. The original elec-tronic devices had already been produced in evidence and marked as MOs. It was during the examination in chief of M. Krishna (PW-189) that the report of CFSL dated 29.11.2010 was sought to be exhibited. However, the Trial Court vide order dated 07.04.2017 declined to take the same on record in the absence of a certificate under Section 65B of the Act. When the aforesaid witness was further exam-ined in chief on 27.04.2017, the report under Section 65B was produced, to which objection was raised by the counsel of the defence, and vide order dated 20.06.2017, the Trial Court declined to take the certificate, issued under Section 65B of the Act, on record. It was thereafter that an applica-tion was filed under Section 311 of the Cr. P.C. for recalling M. Krishna (PW-189) and produce the certificate under Section 65-B of the Act on record. The same was rejected by the Trial Court vide order dated 18.01.2018.

From the aforesaid facts, it cannot be inferred that there was a delay of six years in producing the certificate. In fact, a report received from CFSL, Hyderabad, on the ba-sis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the origi-nal electronic devices were already produced and marked MOs, there was no need to produce the certificate under Section 65-B of the Act. Still, as a matter of abundant cau-tion, the same was produced, that also immediately after the objection was raised by the accused against the pro-duction of the CFSL report prepared on the basis of the electronic devices seized.

A fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty person should go scot-free and no innocent person should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prose-cution, is not evidence which has been created now. It is meeting the requirement of the law to provide a report on record. By permitting the prosecution to produce the cer-tificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The ac-cused will have a full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Sec-tion 311 of the Cr. P.C. is there. The object of the Code is to arrive at the truth. However, the power under Section 311 of the Cr. P.C. can be exercised to subserve the cause of justice and public interest. In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused.”

Therefore, in view of the binding precedent, the learned Trial Court had rightly held that the certificate under Section 65B of the Indian Evidence Act could have been produced at any stage, and there is no error in the approach of the learned Trial Court.

Consequently, the present petition fails, and the same is dismissed.

The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.