# Basant Kumar Bihani v. Union of India

- **Citation:** (2024) 1 ILRA 1042
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-16
- **Case number:** Criminal Appeal No. 1553 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basant-kumar-bihani-v-union-of-india-51043
- **Pages:** 29

## Headnote

Criminal Law - Prevention of Corruption
Act, 1988 - Sections 7, 13(1)(d), 13(2) &
20 - Indian Evidence Act, 1872 - Section
65B - Code of Criminal Procedure, 1973 -
Sections 154, 234 & 313 - Appellant
challenged conviction under Sections 7 and
13(2) r/w 13(1)(d) of the Prevention of
Corruption
Act,
alleging
improper
FIR
registration, inadmissible electronic evidence,
and lack of corroborative evidence for bribe
demand and acceptance. Court held: (1) FIR
registration was valid under Section 154 Cr.P.C.,
as the complaint disclosed a cognizable offence,
requiring no preliminary inquiry (Lalita Kumari
Vs Govt. of U.P., (2014) 2 SCC 1; (2023) 9 SCC
695). (2) Electronic evidence (CDs Q-1, Q-2, Q3, Q-7 and transcripts Q-4, Q-5, Q-6) was
inadmissible due to lack of Section 65B
certificates at the time of filing and belated
submission
after
8-13
years,
violating
mandatory requirements (Anvar P.V. Vs P.K.
Basheer, (2014) 10 SCC 473; Arjun Panditrao
Khotkar Vs Kailash Kushanrao Gorantyal, (2020)
7 SCC 1). (3) No independent witness
corroborated
complainant's
claim
of
bribe
demand
and
acceptance;
her
testimony
contained contradictions, rendering it unreliable
(Neeraj Dutta Vs St. (NCT of Delhi), (2023) 4
SCC 731). (4) Trial court's approach, prioritizing
defense submissions over prosecution's case,
indicated a presumption of guilt, vitiating the
trial (Section 234 Cr.P.C.). (5) Prosecution failed
to prove demand and acceptance of bribe
beyond reasonable doubt, a sine qua non for
conviction under Sections 7 and 13(1)(d) (B.
Jayaraj Vs St. of A.P., (2014) 13 SCC 5; K.
Shanthamma Vs St. of Telangana, (2022) 4 SCC
574). Appeal allowed; conviction set aside;
appellant acquitted. (Paras 18-96)

Appeal Allowed; Conviction Set Aside.

List of Cases cited:

## Text

_Characters 0–39,851 of 94,501. This is a partial read: ask again with offset=39851 for what follows._

1042 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions Court, at the stage of Sections 203
and 204. The standard of proof and
judgment, which is to be applied finally
before finding the accused guilty or
otherwise is not exactly to be applied at the
stage of framing charges. A fortiori, at the
stage of Sections 202/204.

21. Thus, this Court is satisfied with
the
arguments
advanced
by
learned
Counsel for the petitioners and the
judgments referred above. The impugned
orders dated 15.11.1997, 05.07.1996 and
23.09.1995 were passed ignoring the legal
questions.

22. In view of the discussions and
observations and judgments referred above,
the impugned orders are liable to be set
aside.

23. Accordingly, the orders dated
15.11.1997, 05.07.1996 and 23.09.1995
passed by VIIth Additional District Judge,
Faizabad (now Ayodhya), Additional Chief
Judicial Magistrate IVth, Faizabad (now
Ayodhya) and Civil Judge, Junior Division,
Faizabad (now Ayodhya) are set aside and
reversed, in pursuance thereto further
proceedings
are
also
quashed,
consequently, the present petition is hereby
allowed.
----------
(2024) 1 ILRA 1042
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No. 1553 of 2023

Basant Kumar Bihani ...Appellant
Versus
Union of India ...Opposite Party
Counsel for the Appellant:
Pranjal Krishna

Counsel for the Opposite Party:
Shiv P. Shukla

Criminal Law - Prevention of Corruption
Act, 1988 - Sections 7, 13(1)(d), 13(2) &
20 - Indian Evidence Act, 1872 - Section
65B - Code of Criminal Procedure, 1973 -
Sections 154, 234 & 313 - Appellant
challenged conviction under Sections 7 and
13(2) r/w 13(1)(d) of the Prevention of
Corruption
Act,
alleging
improper
FIR
registration, inadmissible electronic evidence,
and lack of corroborative evidence for bribe
demand and acceptance. Court held: (1) FIR
registration was valid under Section 154 Cr.P.C.,
as the complaint disclosed a cognizable offence,
requiring no preliminary inquiry (Lalita Kumari
Vs Govt. of U.P., (2014) 2 SCC 1; (2023) 9 SCC
695). (2) Electronic evidence (CDs Q-1, Q-2, Q3, Q-7 and transcripts Q-4, Q-5, Q-6) was
inadmissible due to lack of Section 65B
certificates at the time of filing and belated
submission
after
8-13
years,
violating
mandatory requirements (Anvar P.V. Vs P.K.
Basheer, (2014) 10 SCC 473; Arjun Panditrao
Khotkar Vs Kailash Kushanrao Gorantyal, (2020)
7 SCC 1). (3) No independent witness
corroborated
complainant's
claim
of
bribe
demand
and
acceptance;
her
testimony
contained contradictions, rendering it unreliable
(Neeraj Dutta Vs St. (NCT of Delhi), (2023) 4
SCC 731). (4) Trial court's approach, prioritizing
defense submissions over prosecution's case,
indicated a presumption of guilt, vitiating the
trial (Section 234 Cr.P.C.). (5) Prosecution failed
to prove demand and acceptance of bribe
beyond reasonable doubt, a sine qua non for
conviction under Sections 7 and 13(1)(d) (B.
Jayaraj Vs St. of A.P., (2014) 13 SCC 5; K.
Shanthamma Vs St. of Telangana, (2022) 4 SCC
574). Appeal allowed; conviction set aside;
appellant acquitted. (Paras 18-96)

Appeal Allowed; Conviction Set Aside.

List of Cases cited:

1. Vineet Narain Vs U.O.I., (1998) 1 SCC 226
(Para 15)
1 All. Basant Kumar Bihani Vs. Union of India
1043
2. Lalita Kumari Vs Govt. of U.P., (2014) 2 SCC
1 (Para 16)

3. Lalita Kumari Vs St. of U.P., (2023) 9 SCC
695 (Para 17)

4. Neeraj Dutta Vs St. (NCT of Delhi), 2022 SCC
OnLine SC 1724 (Para 15)

5. Neeraj Dutta Vs St. (NCT of Delhi), (2023) 4
SCC 731 (Para 88)

6. Neeraj Dutta Vs St. (NCT of Delhi), 2023 SCC
OnLine SC 280 (Para 90)

7. K. Shanthamma Vs St. of Telangana, (2022)
4 SCC 574 (Para 92)

8. Anvar P.V. Vs P.K. Basheer, (2014) 10 SCC
473 (Para 25)

9. Arjun Panditrao Khotkar Vs Kailash Kushanrao
Gorantyal, (2020) 7 SCC 1 (Para 27)

10. Shafhi Mohammad Vs St. of Himachal
Pradesh, (2018) 2 SCC 801 (Para 26)

11. St. of Karn. Vs T. Naseer, 2023 SCC OnLine
SC 1447 (Para 31)

12. Bipin Shantilal Panchal Vs St. of Guj., (2001)
3 SCC 1 (Para 21)

13. Paras Jain Vs St. of Raj., 2015 SCC OnLine
Raj 8331 (Para 28)

14. Kundan Singh Vs St., 2015 SCC OnLine Del
13647 (Para 29)

15. B. Jayaraj Vs St. of A.P., (2014) 13 SCC 5
(Para 91)

16. Dashrath Singh Chauhan Vs CBI, (2019) 17
SCC 509 (Para 91)

17. N. Vijaykumar Vs St. of Tamilnadu, (2021) 3
SCC 687 (Para 91)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Pranjal Krishna, the
learned Counsel for the appellant and Sri
Shiv P. Shukla, the learned Counsel for the
respondent-C.B.I.

2. The instant Appeal has been filed
challenging the validity of the judgment
and order dated 31.03.2023 passed by the
learned Special Judge (Prevention of
Corruption Act), CBI Court No. 3,
Lucknow in Criminal Case No. 02 of 2011
titled State versus Basant Kumar Bihani,
arising out of RC No. 0062010A002 under
Sections 7 and 13 (2) read with 13 (1) (d),
Prevention
of
Corruption
Act,
1988
(hereinafter referred to as 'the Act'), Police
Station CBI/ACB, Lucknow.

3. Briefly stated, facts of the case are
that Sri Murad Ali, husband of the
complainant Noor Fatima, had died on
10.04.2004. On 20.07.2004 Noor Fatima
had given a letter stating that she will apply
for compassionate appointment of her elder
daughter Khushboo as soon as she attains
majority. On 02.12.2006 she gave another
letter stating that though the elder daughter
had attained majority, she did not want to
accept compassionate appointment as she
wanted to pursue higher studies and she
requested that her elder daughter be given
appointment after she completes higher
studies. On 30.05.2007, Noor Fatima gave
another letter stating that as her elder
daughter was keen to pursue higher studies,
a seat be kept reserved for the younger
daughter till she attains majority and
completes her education. On 09.05.2008
the appellant's predecessor sent a reply
stating that as per the Rules, the younger
daughter could not be appointed and the
complainant
herself
can
take
the
appointment.

4. The complainant gave another
letter on 04.06.2008 stating that her elder
daughter was getting married and the name
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
of her younger daughter Roshni be
registered for compassionate appointment.

5. In furtherance of the appellant's
comments, his subordinate officer replied
on 21.02.2009 that the above request was
not as per the rules.

6. The complainant again gave letters
dated 09.10.2009 & 10.04.2009 requesting
for registration of the name of her younger
daughter Roshni for the appointment and
the appellant had rejected the request by
writing a note on the letter itself.

7. At 05:59 p.m. on 07.10.2010, the
complainant sent a complaint through fax,
alleging that some unknown person had met
her as a messenger of the appellant and had
asked her to talk to the appellant with respect
to the appointment of her daughter. She
stated that some calls took place during the
period 01.01.2010 and 07.01.2010 between
the appellant and herself, wherein the
appellant had demanded Rs.2,50,000/- as
bribe for compassionate appointment of her
second daughter. On the aforesaid complaint,
the C.B.I. registered a First Information
Report (FIR) at 06:30 p.m. on 07.01.2010.

8. On 08.10.2010 a team of C.B.I.
officers
reached
Varanasi
for
trap
proceedings. It arranged two independent
witnesses from State Bank of India. Pretrap proceedings started in SBI Guest
House at Sigra, Varanasi at 05:30 p.m. the
complainant reached the guest house
between 06:00 to 06:15 p.m. and the pretrap proceedings concluded at 07:15 p.m.
and the C.B.I. team left for the official
bungalow of the appellant.

9. The trap proceedings were
conducted between 08:00 and 08:15 p.m.
and the C.B.I. claims to have caught the
appellant red handed while demanding and
accepting from the complainant Smt. Noor
Fatima bribe of Rs. 50,000/-, under
impression of the same being Rs.2,50,000/-
. A charge sheet was filed against the
appellant u/s 7 and 13(2) r/w 13(1)(d) of
the Act on 20.01.2011.

10. On 18.07.2011 the Trial Court had
framed the following charges against the
appellant: -

Firstly, that in the year 2010, the
appellant
was
working
as
Chief
Commercial
Officer,
Locomotive
Workshop, Railway, Varanasi and he had
demanded
Rs.2,50,000/-
from
the
complainant Noor Fatima, as bribe for
giving compassionate appointment to her
younger daughter. As the complainant had
only Rs 50,000/-, on 08.01.2010 the C.B.I.
team arranged the Rs 50,000/- in five
packets in such a manner as would make it
appear five packets of Rs. 500/- each (total
Rs.2,50,000/-) and a C.B.I. team arrested
him red handed while taking bribe on
08.01.2010 and recovered the said amount
of Rs 50,000/- from him. Thus the
appellant committed an offence punishable
under Section 7 of the Act.

Secondly, that on the above
mentioned date, time and place, the appellant
received an amount of Rs 50,000/- from the
complainant Noor Fatima in the above
manner, illegally in a corrupt manner and by
misusing his position and benefitted himself
financially, which is a criminal offence and
thus he committed an offence punishable
under Section 13 (2) read with Section 13 (1)
(d) of the Act 1988, of which cognizance had
been taken by the court.

11.

Prosecution
examined
15
witnesses and adduced some documentary
1 All. Basant Kumar Bihani Vs. Union of India
1045
evidence. Statement of the appellant was
recorded under Section 313 Cr.P.C. and he
produced 5 defense witnesses and 33
documents.

12. The Learned Trial Court had
framed
the
following
points
for
determination: -

I. Whether the accused is a public
servant and if yes, whether the competent
authority had granted sanction for his
prosecution in accordance with the law?

II. Whether the accused had
demanded and accepted bribe for making
compassionate
appointment
of
the
complainant's daughter?

III.
Whether
the
matter
of
compassionate
appointment
of
the
complainant's daughter was pending before
the
applicant
and
whether
he
was
competent to take a decision thereon?

IV. Whether the amount of bribe
received by the accused had been recovered
by the CBI team from him?

13. The Trial Court decided all the
points against the appellant and convicted
him for commission of offence under
Section 7 of the Act and has sentenced him
to undergo rigorous imprisonment for 2
years and pay a fine of Rs. 40,000/- and in
default in payment of fine to undergo
additional rigorous imprisonment for 2
months. He has been convicted for
committing the offence under Section 13(2)
read with 13(1)(d) of the Act and has been
sentenced
to
undergo
rigorous
imprisonment for 3 years and to pay a fine
of Rs. 60,000/- and in default of payment
of fine, to undergo rigorous imprisonment
for additional 3 months.

14. The order of conviction and
sentence passed by the trial Court has been
assailed before this Court on the following
grounds: -

I. The F.I.R. was registered
without verification of genuineness of the
allegations leveled in the complaint.

II. The electronic evidence in the
form of the compact discs containing
copies of the conversations recorded in a
Digital
Voice
Recorder,
were
not
accompanied by certificates under Section
65 B of the Indian Evidence Act and the
certificate was filed at a highly belated
stage. Therefore, the electronic evidences
were not admissible.

III. There was no witness of the
demand and acceptance of bribe, apart from
the complainant herself. In absence of a
shadow witness having accompanied her
and having corroborated her evidence,
conviction
cannot
be
based
on
the
statement
of
the
complainant
alone,
particularly when there are discrepancies in
the statements.

IV. The presumption provided
under Section 20 of the Act does not apply
to Section 13 (1) (d) and it is a legal and
rebuttable presumption.

V. The CBI officers have not
acted fairly in this manner. They have
tampered with the evidence and have
concealed relevant evidence from the
Court.

15. The learned Counsel for the
appellant has relied upon the judgments of
Vineet Narain and others versus Union
of India and another, (1998) 1 SCC 226,
Lalita Kumari v. Govt. of U.P., (2014) 2
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 1, Neeraj Dutta versus State (NCT
Of Delhi) 2022 SCC OnLine SC 1724,
Neeraj Dutta versus State (NCT Of Delhi)
2023
SCC
OnLine
SC
280,
K.
Shanthamma versus State of Telangana,
(2022) 4 SCC 574, Anvar P. V. versus P.
K. Basheer and others, (2014) 10 SCC
473 and Arjun Panditrao Khotkar versus
Kailash
Kushanrao
Gorantyal
and
others, (2020) 7 SCC 1.

16. In support of the first submission
that the F.I.R. was registered without
verification
of
genuineness
of
the
allegations leveled in the complaint, the
learned Counsel for the appellant has relied
upon the judgment in the case of Lalita
Kumari v. Govt. of U.P., (2014) 2 SCC 1,
wherein the Hon'ble Supreme Court had
issued the following directions: -

"120.1. The registration of FIR
is mandatory under Section 154 of the
Code,
if
the
information
discloses
commission of a cognizable offence and
no preliminary inquiry is permissible in
such a situation.

120.2. If the information received
does not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only
to ascertain whether cognizable offence is
disclosed or not.

120.3. If the inquiry discloses the
commission of a cognizable offence, the
FIR must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such
closure must be supplied to the first
informant forthwith and not later than one
week. It must disclose reasons in brief for
closing the complaint and not proceeding
further.

120.4. The police officer cannot
avoid his duty of registering offence if
cognizable offence is disclosed. Action
must be taken against erring officers who
do not register the FIR if information
received by him discloses a cognizable
offence.

120.5. The scope of preliminary
inquiry is not to verify the veracity or
otherwise of the information received but
only to ascertain whether the information
reveals any cognizable offence.

120.6. As to what type and in
which cases preliminary inquiry is to be
conducted will depend on the facts and
circumstances of each case. The category
of cases in which preliminary inquiry may
be made are as under:

(a) Matrimonial disputes/family
disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e)
Cases
where
there
is
abnormal
delay/latches
in
initiating
criminal prosecution, for example, over 3
months' delay in reporting the matter
without
satisfactorily
explaining
the
reasons for delay.

The
aforesaid
are
only
illustrations and not exhaustive of all
conditions which may warrant preliminary
inquiry.

120.7.
While
ensuring
and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
1 All. Basant Kumar Bihani Vs. Union of India
1047
be made time-bound and in any case it
should not exceed 7 days. The fact of such
delay and the causes of it must be reflected
in the General Diary entry.

120.8.
Since
the
General
Diary/Station Diary/Daily Diary is the
record of all information received in a
police
station,
we
direct
that
all
information relating to cognizable offences,
whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily
and meticulously reflected in the said diary
and the decision to conduct a preliminary
inquiry
must
also
be
reflected,
as
mentioned above."

17. Para 120.7 of Lalita Kumari
(Supra) has been modified by Lalita
Kumari v. State of U.P., (2023) 9 SCC
695, so as to make it as follows: -

"120.7.
While
ensuring
and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
be made time-bound and in any case it
should not exceed fifteen days generally
and in exceptional cases, by giving
adequate reasons, six weeks' time is
provided. The fact of such delay and the
causes of it must be reflected in the
General Diary entry."

18. If the information received does
not disclose a cognizable offence but
indicates the necessity for an inquiry, only
then
a preliminary
inquiry
may
be
conducted to ascertain whether cognizable
offence is disclosed or not but if the
information discloses commission of a
cognizable offence, registration of FIR is
mandatory under Section 154 of the Code
and no preliminary inquiry is permissible in
such a situation. As the F.I.R. in the present
case clearly discloses commission of a
cognizable offence, there was no need for
verification of the genuineness of the
allegations leveled in the complaint.
Accordingly, the first submission of the
learned Counsel for the appellant that the
judgment of the trial Court stands vitiated
because the F.I.R. was registered without
verification
of
genuineness
of
the
allegations levelled in the complaint,
cannot be accepted and the same is turned
down.

19. The second submission of the
learned Counsel for the appellant is that the
electronic evidence in the form of compact
discs containing the conversation recorded
in a Digital Voice Recorder and call detail
records,
was
not
accompanied
by
certificates under Section 65 B of the
Indian Evidence Act and the certificates
were filed at a highly belated stage and the
electronic evidence was not admissible for
this reason. The C.B.I. claims that the
conversations between the complainant and
the appellant were recorded in a Digital
Voice Recorder and the same were copied
on compact discs marked Q-1, Q-2 and Q-3
and transcripts of the conversations were
marked as Q-4, Q-5 and Q-6 respectively
and those were filed in the Court along
with the charge-sheet on 20.01.2011.

20. Examination of PW-1 commenced
on 18.08.2011 and it concluded on
21.12.2011. Examination of PW-2 started
on 26.03.2013 but thereafter PW-2 did not
appear on several dates and therefore,
examination-in-chief of PW-3 was started
on 07.03.2013, i.e. after almost 1 year, and
it continued on 12.04.2013 and 13.05.2013.
As PW-2 showed up on 30.05.2013, his
examination-in-chief was resumed and it
continued till 03.08.2015 and he was cross
examined
on
26.08.2015.
After
this
examination in chief of PW-3 resumed on
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
10.09.2015 and she was cross examined on
23.09.2015. PW-4 to PW-9 were examined
between 18.11.2015 to 31.01.2017.

21. On 22.04.2016 the appellant had
filed an application for excluding the
electronic record from consideration as it
was inadmissible and when no decision
was taken on the application, he filed
another application dated 17.02.2017 for
deciding
the
earlier
application. On
22.03.2017, the trial Court passed an order
that it was conducting the trial as per the
law laid down in Bipin Shantilal Panchal
v. State of Gujarat, (2001) 3 SCC 1,
wherein it was held that Whenever an
objection is raised during evidence-taking
stage regarding the admissibility of any
material or item of oral evidence the trial
court can make a note of such objection
and
mark
the
objected
document
tentatively as an exhibit in the case (or
record the objected part of the oral
evidence) subject to such objections to be
decided at the last stage in the final
judgment. If the court finds at the final
stage that the objection so raised is
sustainable the Judge or Magistrate can
keep
such
evidence
excluded
from
consideration.

22. Thereafter the examination of the
remaining prosecution witnesses continued.
Examination-in-chief
of
PW-13
commenced on 08.05.2019 and it continued
on 09.05.2019 and 31.05.2019 and during
continuance of examination in chief of PW13, an application was filed on 31.05.2019
for filing three certificates under Section
65-B of the Evidence Act and the same
were taken on record vide order dated
25.11.2021 and those were marked as A33, A-34 and A-35. On the appellant's
objections, the trial Court passed an order
dated 19.04.2022 that the certificates had
merely been taken on record and the issue
of admissibility was not considered at that
stage.

23. The prosecution evidence stood
closed on 15.12.2022 and the case was
fixed for examination of the accused under
Section 313 Cr.P.C. The accused remained
present in the Court on 11 dates, but he was
not examined. The prosecution moved
several applications for summoning an
additional witness and a witness who had
not appeared despite service of summons
and then an application dated 31.01.2023
was filed for taking a certificate dated
24.01.2023 regarding call detail records on
record. The appellant had opposed the
application, but the certificate was taken on
record vide order dated 01.02.2023.

24. Section 65 B of the Evidence Act
provides as follows: -

"65-B.
Admissibility
of
electronic records.-(1) Notwithstanding
anything contained in this Act, any
information contained in an electronic
record which is printed on a paper, stored,
recorded or copied in optical or magnetic
media
produced
by
a
computer
(hereinafter referred to as the computer
output) shall be deemed to be also a
document, if the conditions mentioned in
this section are satisfied in relation to the
information and computer in question and
shall be admissible in any proceedings,
without further proof or production of
the original, as evidence of any contents
of the original or of any fact stated therein
of which direct evidence would be
admissible.

(2) The conditions referred to in
sub-section (1) in respect of a computer
output shall be the following, namely-
1 All. Basant Kumar Bihani Vs. Union of India
1049

(a)
the
computer
output
containing the information was produced
by the computer during the period over
which the computer was used regularly to
store or process information for the
purposes of any activities regularly carried
on over that period by the person having
lawful control over the use of the
computer;

(b) during the said period,
information of the kind contained in the
electronic record or of the kind from
which the information so contained is
derived was regularly fed into the
computer in the ordinary course of the
said activities;

(c) throughout the material part
of the said period, the computer was
operating properly or, if not, then in
respect of any period in which it was not
operating properly or was out of operation
during that part of the period, was not such
as to affect the electronic record or the
accuracy of its contents; and

(d) the information contained in
the electronic record reproduces or is
derived from such information fed into the
computer in the ordinary course of the
said activities.

(3) * * *

(4) In any proceedings where it is
desired to give a statement in evidence by
virtue of this section, a certificate doing
any of the following things, that is to
say,-

(a) identifying the electronic
record containing the statement and
describing the manner in which it was
produced;

(b) giving such particulars of
any device involved in the production of
that
electronic
record
as
may
be
appropriate for the purpose of showing
that the electronic record was produced by
a computer;

(c) dealing with any of the
matters to which the conditions mentioned
in sub-section (2) relate,

and purporting to be signed by a
person occupying a responsible official
position in relation to the operation of the
relevant device or the management of the
relevant
activities
(whichever
is
appropriate) shall be evidence of any
matter stated in the certificate; and for the
purposes of this sub-section it shall be
sufficient for a matter to be stated to the
best of the knowledge and belief of the
person stating it.

(5) * * *."

(Emphasis supplied)

25. In Anvar P. V. v. P. K. Basheer,
(2014) 10 SCC 473, the Hon'ble Supreme
Court held that: -

"15. Under Section 65-B(4) of the
Evidence Act, if it is desired to give a
statement in any proceedings pertaining to
an electronic record, it is permissible
provided the following conditions are
satisfied:

(a) There must be a certificate
which identifies the electronic record
containing the statement;

(b) The certificate must describe
the manner in which the electronic record
was produced;
1050 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) The certificate must furnish
the particulars of the device involved in the
production of that record;

(d) The certificate must deal with
the applicable conditions mentioned under
Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed
by a person occupying a responsible
official position in relation to the operation
of the relevant device.

16. It is further clarified that the
person need only to state in the certificate
that the same is to the best of his knowledge
and belief. Most importantly, such a
certificate must accompany the electronic
record like computer printout, compact
disc (CD), video compact disc (VCD), pen
drive, etc., pertaining to which a statement
is sought to be given in evidence, when the
same is produced in evidence. All these
safeguards are taken to ensure the source
and authenticity, which are the two
hallmarks pertaining to electronic record
sought to be used as evidence. Electronic
records
being
more
susceptible
to
tampering,
alteration,
transposition,
excision, etc. without such safeguards, the
whole trial based on proof of electronic
records can lead to travesty of justice."

(Emphasis supplied)

26. In Shafhi Mohammad versus
State of Himachal Pradesh, (2018) 2 SCC
801, the Hon'ble Supreme Court had held
that: -

"29.
The
applicability
of
procedural requirement under Section 65B(4) of the Evidence Act of furnishing
certificate is to be applied only when such
electronic evidence is produced by a
person who is in a position to produce such
certificate being in control of the said
device and not of the opposite party. In a
case where electronic evidence is produced
by a party who is not in possession of a
device, applicability of Sections 63 and 65
of the Evidence Act cannot be held to be
excluded. In such case, procedure under
the said sections can certainly be invoked.
If this is not so permitted, it will be denial
of justice to the person who is in possession
of authentic evidence/witness but on
account of manner of proving, such
document is kept out of consideration by
the court in the absence of certificate under
Section 65-B(4) of the Evidence Act, which
party producing cannot possibly secure.
Thus, requirement of certificate under
Section 65-B(4) is not always mandatory.

30. Accordingly, we clarify the
legal position on the subject on the
admissibility of the electronic evidence,
especially by a party who is not in possession
of device from which the document is
produced. Such party cannot be required to
produce certificate under Section 65-B(4) of
the Evidence Act. The applicability of
requirement of certificate being procedural
can be relaxed by the court wherever interest
of justice so justifies."

27. In Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal, (2020) 7
SCC 1 the Hon'ble Supreme Court overruled
the judgment in Shafhi Mohammad (Supra)
so far as it held that "In a case where
electronic evidence is produced by a party
who is not in possession of a device,
applicability of Sections 63 and 65 of the
Evidence Act cannot be held to be excluded"
and held that: -

"45. Thus, it is clear that the
major premise of Shafhi Mohammad that
1 All. Basant Kumar Bihani Vs. Union of India
1051
such certificate cannot be secured by
persons who are not in possession of an
electronic device is wholly incorrect. An
application can always be made to a Judge
for production of such a certificate from the
requisite person under Section 65-B(4) in
cases in which such person refuses to give
it.

* * *

47.
...where
the
requisite
certificate has been applied for from the
person or the authority concerned, and the
person or authority either refuses to give
such certificate, or does not reply to such
demand,
the
party
asking
for
such
certificate can apply to the court for its
production
under
the
provisions
aforementioned of the Evidence Act, CPC
or CrPC. Once such application is made to
the court, and the court then orders or
directs that the requisite certificate be
produced by a person to whom it sends a
summons to produce such certificate, the
party asking for the certificate has done all
that he can possibly do to obtain the
requisite certificate. Two Latin maxims
become important at this stage. The first is
lex non cogit ad impossibilia i.e. the law
does not demand the impossible, and
impotentia excusat legem i.e. when there is
a disability that makes it impossible to obey
the law, the alleged disobedience of the law
is excused.

* * *

51. On an application of the
aforesaid maxims to the present case, it is
clear that though Section 65-B(4) is
mandatory, yet, on the facts of this case, the
respondents,
having
done
everything
possible to obtain the necessary certificate,
which was to be given by a third party over
whom the respondents had no control, must
be relieved of the mandatory obligation
contained in the said sub-section.

52. We may hasten to add that
Section 65-B does not speak of the stage at
which such certificate must be furnished to
the Court. In Anvar P.V. this Court did
observe
that
such
certificate
must
accompany the electronic record when the
same is produced in evidence. We may only
add that this is so in cases where such
certificate could be procured by the person
seeking to rely upon an electronic record.
However, in cases where either a defective
certificate is given, or in cases where such
certificate has been demanded and is not
given by the person concerned, the Judge
conducting the trial must summon the
person/persons referred to in Section 65B(4) of the Evidence Act, and require that
such
certificate
be
given
by
such
person/persons. This, the trial Judge ought
to do when the electronic record is
produced in evidence before him without
the
requisite
certificate
in
the
circumstances aforementioned. This is, of
course,
subject
to
discretion
being
exercised in civil cases in accordance with
law,
and
in
accordance
with
the
requirements of justice on the facts of each
case. When it comes to criminal trials, it is
important to keep in mind the general
principle that the accused must be supplied
all documents that the prosecution seeks to
rely upon before commencement of the
trial, under the relevant sections of the
CrPC.

* * *

56. Therefore, in terms of general
procedure, the prosecution is obligated to
supply all documents upon which reliance
may be placed to an accused before
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
commencement of the trial. Thus, the
exercise of power by the courts in criminal
trials in permitting evidence to be filed at a
later stage should not result in serious or
irreversible prejudice to the accused. A
balancing exercise in respect of the rights
of parties has to be carried out by the
court, in examining any application by the
prosecution under Sections 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 appropriate
cases allow the prosecution to produce
such certificate at a later point in time. If
it is the accused who desires to produce the
requisite certificate as part of his defense,
this again will depend upon the justice of
the case - discretion to be exercised by the
court in accordance with law."

(Emphasis supplied)

28. In Arjun Panditrao Khotkar
(Supra), the Hon'ble Supreme Court quoted
with approval the following approved the
following view of the High Court of
Rajasthan
in Paras
Jain v. State
of
Rajasthan, 2015 SCC OnLine Raj 8331: -

"15. Although, it has been
observed by the Hon'ble Supreme Court
that
the
requisite
certificate
must
accompany
the
electronic
record
pertaining to which a statement is sought to
be given in evidence when the same is
produced in evidence, but in my view it
does not mean that it must be produced
along with the charge-sheet and if it is not
produced along with the charge-sheet,
doors of the court are completely shut and
it cannot be produced subsequently in any
circumstance. Section 65-B of the Evidence
Act deals with admissibility of secondary
evidence in the form of electronic record
and the procedure to be followed and the
requirements be fulfilled before such an
evidence can be held to be admissible in
evidence and not with the stage at which
such a certificate is to be produced before
the court. One of the principal issues
arising for consideration in the above case
before the Hon'ble Court was the nature
and manner of admission of electronic
records.

* * *

23. When legal position is that
additional evidence, oral or documentary,
can be produced during the course of trial
if in the opinion of the court production of
it is essential for the proper disposal of the
case, how it can be held that the certificate
as required under Section 65-B of the
Evidence
Act
cannot
be
produced
subsequently in any circumstances if the
same was not procured along with the
electronic record and not produced in the
court with the charge-sheet. In my opinion
it is only an irregularity not going to the
root of the matter and is curable. It is also
pertinent to note that certificate was
produced along with the charge-sheet but it
was not in a proper form but during the
course of hearing of these petitioners, it
has been produced on the prescribed
form."

29. The Hon'ble Supreme Court also
approved the following view taken by a
Division Bench of the Delhi High Court
in Kundan Singh versus State, 2015 SCC
OnLine Del 13647: -

"50. Anvar P.V. partly overruled
the earlier decision of the Supreme Court
on the procedure to prove electronic
record(s) in Navjot Sandhu, holding that
1 All. Basant Kumar Bihani Vs. Union of India
1053
Section 65-B is a specific provision relating
to the admissibility of electronic record(s)
and, therefore, production of a certificate
under Section 65-B(4) is mandatory. Anvar
P.V. does not state or hold that the said
certificate cannot be produced in exercise
of powers of the trial court under Section
311 CrPC or, at the appellate stage under
Section 391 CrPC. Evidence Act is a
procedural law and in view of the
pronouncement
in Anvar
P.V. partly
overruling Navjot Sandhu, the prosecution
may
be
entitled
to
invoke
the
aforementioned provisions, when justified
and required. Of course, it is open to the
court/presiding officer at that time to
ascertain
and
verify
whether
the
responsible officer could issue the said
certificate and meet the requirements of
Section 65-B."

30. While approving the aforesaid
view,
the
Hon'ble
Supreme
Court
summarized the law on the point in Arjun
Panditrao Khotkar (Supra) by stating
that:-

"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."

* * *

61. We may reiterate, therefore,
that the certificate required under Section
65-B(4) is a condition precedent to the
admissibility of evidence by way of
electronic
record,
as
correctly
held
in Anvar P.V. , and incorrectly "clarified"
in Shafhi Mohammad v. State of H.P.,
(2018) 2 SCC 801. Oral evidence in the
place of such certificate cannot possibly
suffice as Section 65-B(4) is a mandatory
requirement of the law. Indeed, the
hallowed
principle
in Taylor v. Taylor (1875) LR 1 Ch D 426],
which has been followed in a number of the
judgments of this Court, can also be
applied. Section 65-B(4) of the Evidence
Act clearly states that secondary evidence
is admissible only if led in the manner
stated and not otherwise. To hold otherwise
would render Section 65-B(4) otiose.

* * *

64. To
obviate
this,
general
directions are issued to cellular companies
and internet service providers to maintain
CDRs and other relevant records for the
period concerned (in tune with Section 39
of the Evidence Act) in a segregated and
secure manner if a particular CDR or other
record is seized during investigation in the
said period. The parties concerned can
then summon such records at the stage of
defense evidence, or in the event such data
is required to cross-examine a particular
witness. This direction shall be applied, in
criminal trials, till appropriate directions
are issued under relevant terms of the
applicable licences, or under Section 67-C
of the Information Technology Act, which
reads as follows:

"67-C. Preservation
and
retention
of
information
by
intermediaries.-(1)
Intermediary
shall
preserve and retain such information as
may be specified for such duration and in
such manner and format as the Central
Government may prescribe.

(2) Any intermediary who intentionally or
knowingly contravenes the provisions of
sub-section (1) shall be punished with an
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment for a term which may extend
to three years and also be liable to fine."

73. The
reference
is
thus
answered by stating that:

73.1.Anvar P.V. , as clarified by
us hereinabove, is the law declared by
this Court on Section 65-B of the
Evidence Act. The judgment in Tomaso
Bruno, being per incuriam, does not lay
down the law correctly. Also, the
judgment in Shafhi Mohammad and the
judgment
dated
3-4-2018
reported
as Shafhi Mohd. v. State of H.P. , do not
lay down the law correctly and are
therefore overruled.

73.2. The clarification referred
to above is that the required certificate
under Section 65-B(4) is unnecessary if
the original document itself is produced.
This can be done by the owner of a laptop
computer, computer tablet or even a
mobile phone, by stepping into the
witness box and proving that the device
concerned,
on
which
the
original
information is first stored, is owned
and/or operated by him. In cases where
the "computer" happens to be a part of a
"computer
system"
or
"computer
network" and it becomes impossible to
physically bring such system or network
to the court, then the only means of
providing information contained in such
electronic record can be in accordance
with Section 65-B(1), together with the
requisite certificate under Section 65-B(4).
The last sentence in para 24 in Anvar P.V.
which reads as "... if an electronic record
as such is used as primary evidence under
Section 62 of the Evidence Act ..." is thus
clarified; it is to be read without the words
"under Section 62 of the Evidence Act,...".
With this clarification, the law stated in
para 24 of Anvar P.V. [Anvar P.V. v. P.K.
Basheer, does not need to be revisited.

73.3. The
general
directions
issued in para 64 (supra) shall hereafter be
followed by courts that deal with electronic
evidence, to ensure their preservation, and
production of certificate at the appropriate
stage. These directions shall apply in all
proceedings, till rules and directions under
Section
67-C
of
the
Information
Technology
Act
and
data
retention
conditions are formulated for compliance
by telecom and internet service providers.

(Emphasis supplied)

31. In reply to this submission, the
learned Counsel for the respondent - CBI
has relied upon the judgment in the case of
State of Karnataka Versus T.