Vishnu vs State Of Kerala

Bechu Kurian Thomas, J

Petitioners are facing indictment for various offences including section 302 of the Indian Penal Code, 1860. While examining a witness during the course of the trial, it was deposed that the witness had recorded the occurrence on his mobile phone and copied it into a computer disc (CD) and handed it over to the investigating officer. When the investigating officer was examined, the marking of the CD as a document was objected to by the defence, contending that the certificate under section 65B of the Indian Evidence Act, 1872, (for short, ‘IEA’) was not produced. In such circumstances, the CD was marked as a material object through PW9 instead of as a document.

Thereafter a petition was filed by the prosecutor as Crl.M.P. No.2515 of 2022 seeking permission to receive the certificate issued under section 65B of IEA as an additional document so as to enable the contents of the CD to be admissible in evidence. The defence again objected to the said petition stating that production of the certificate at a belated stage would cause prejudice to the accused and therefore the application ought to be dismissed.

The learned Sessions Judge by the impugned order allowed the application and directed the certificate produced under section 65B of IEA to be received on file and also accorded permission to the prosecution to display the contents of the CD in court, for proving its contents, apart from directing recalling of PW9 for further examination to prove the contents of the CD.

Sri. George Mathew, the learned counsel for the petitioners assailed the impugned order of the learned Sessions Judge contending that the CD now sought to be produced in evidence as a document cannot be admitted since there is no guarantee that the same is free from tampering. It was further submitted that the said document is an attempt to fabricate evidence without adhering to the procedures and, that too, trying to bring on record a document which was not given to the accused earlier. The learned counsel also asserted that once the prosecution had prepared its case, every document accompanying the final report was bound to be given so that the accused could formulate his defence properly. Learned counsel also stated that if during the final stage of the evidence, a new document is brought in, the entire defence would be prejudiced and therefore it will affect the concept of a fair trial.

Smt.Sreeja V., the learned Public Prosecutor on the other hand contended that the CD was always a part of the evidence and it had even been marked as a material object since there was an objection from the accused that the electronic record was not supported by a certificate under section 65B of the Evidence Act. The production of the certificate is not a means to create evidence but only a means to avoid a technical objection which occurred on account of an inadvertent omission on the part of the investigating officer.

Section 311 of Cr.P.C. confers a wide power on the court to elicit all necessary materials by playing an active role in the evidence-collecting process. Even when the prosecutor is remiss in certain ways, the court can control the proceedings effectively so that the ultimate objective, i.e. truth, is arrived at. The only restriction in section 311 Cr.P.C is that the court must deem it essential for a just decision of the case that the evidence is required.

In the decisions in Himanshu Singh Sabharwal v. State of Madhya Pradesh and Others [(2008) 3 SCC 602] and Mohanlal Shamji Soni v. Union of India and Another (AIR 1991 SC 1346), the Supreme Court has held that the terminology used in section 311 Cr.P.C indicates that wide discretion has been granted to the court though such discretion confers a corresponding caution and the same has to be exercised depending upon the exigencies of justice. Similarly, in a recent decision in Varsha Garg v. State of Madhya Pradesh and Others [2022 SCC OnLine SC 986] also the Supreme Court reiterated that the power of the court under section 311 Cr.P.C is not constrained even by the closure of evidence and the powers are governed by requirements of justice.

In the instant case, the CD which can be treated as an electronic record was already produced but without the required certificate under Section 65B of IEA. In the absence of the certificate, the court marked it as a material object. The prosecution deems it appropriate to rely upon the contents of the said CD. The certificate under section 65B IEA to accompany the CD is a statutory requirement which has not been complied with. The omission to produce the certificate cannot be treated as a lacuna in the prosecution case but only as an inadvertent omission. No prejudice would be caused to the accused if the said certificate is produced since the accused will have an opportunity to cross-examine and question the correctness of the contents of the document.

Further in the decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others [(2020) 7 SCC 1] the Supreme Court had held that the certificate under Section 65B of IEA could be produced even after the final report is filed unless serious or irreversible prejudice is caused to the accused. In the instant case, no such prejudice will be caused to the accused. Thus there is no illegality in the belated production of the certificate under section 65B of the IEA, also.

However, the direction of the learned Sessions Judge in the impugned order that the contents of the CD should be displayed in open court is not legally tenable. It is settled that copies of every document, proposed to be relied upon by the prosecution must be given to the accused under section 207 of the Cr.P.C. Since the contents of the CD are not expressly stated to be containing any obscene matter or as containing any matter that intrudes into privacy, it is necessary for a proper defence to be raised that a copy of the CD be given to the petitioner. The impugned order is required to be modified to the above extent.

Thus, having regard to the nature of the evidence that is sought to be produced, I find no reason to interfere with the order of the learned Sessions Judge in permitting production of the certificate under section 65B of IEA. However, while affirming the order of the learned Sessions Judge, it is directed that a copy of the CD be given to the accused without further delay and before the witness is recalled for examination.

With the above modification, this Crl M.C is disposed.