# Rahul Verma Revisionist v. State Opp. Party

- **Citation:** (2019) 2 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** Criminal Revision No. 1269 of 2019
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-verma-revisionist-v-state-opp-party-44824
- **Pages:** 13

## Headnote

Cr.P.C.,
1973-Section
319
-
Revisionists though nominated in the
F.I.R exonerated in the Police Report on
basis of alibi -" Evidence" - is limited to
the evidence recorded by the trial court -
Statement recorded under Section 161
of the Cr.Pc - Has only the limited
purpose of contradicting the maker
thereof- the other evidence which has
come on record between the stage of
taking cognizance by the Court till the
commencement of the trial can merely
be used for corroborative purposes - Plea
of Alibi- Section 103 of the Evidence Act
- Burden of Proof for establishing the
plea of alibi - Could be done by leading
evidence in trial court and not by relying
on
the
material
collected
during
investigation n- The Court in exercise of
its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi
of an accused- Precedent-a decision is
precedent on its own facts- the only
thing binding a party is the ratio
decidendi which is generally secundum
subjectam materiam-Application under
Section 319 Cr.P.C.- is maintainable only
when implicative evidence of probative
value more than strong suspicion comes
on record in shape of documentary or
oral evidence in trial - Power under
Section 319 of the Code - is conferred on
the court to ensure that justice is done
to the society by bringing to book all
those guilty of an offence and to render
justice to the victim.

Scope, ambit and sweep of expression
"evidence" contained under Section 319 Cr.P.C.
and explained in the para 85 in the
Constitution Bench judgement of Hardeep
Singh was not considered in the subsequent
cases in Brijendra Singh's and Shiv Prakash
Mishra's cases to the extent that any evidence
collected during investigation either in favour
of the prosecution or the accused cannot be
taken into account while exercising the power
under
Section
319
Cr.P.C.
In
view
of
unambiguous interpretation to the
word
'evidence'; it is limited to the evidence
recorded by the trial court".

A decision is precedent on its own facts- The
only thing in Judge's decision binding a party
is the principle upon which the case is decided
and for this reason it is important to analyze a
decision and isolate from it the ratio decidendi.
548 INDIAN LAW REPORTS ALLAHABAD SERIES
Application under Section 319 Cr.P.C. is
maintainable only when implicative evidence of
probative value more than strong suspicion
comes on record in shape of documentary or
oral evidence in trial.

Statement under Section 161 Cr.P.C. is not a
substantive piece of evidence. In view of
proviso to subsection (1) of Section 162
Cr.P.C., the statement can be used only with
limited purpose of contradicting the maker
thereof in the manner laid down in the said
proviso.

Consideration of plea of alibi -Section 103 of
Evidence Act - burden of proof as to any
particular fact lies on that person who wishes
the court to believe in its existence, unless it is
proved by any law that proof of that fact lies
on a particular person- The Court in exercise
of its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi of an
accused at the stage of taking cognizance,
framing of charges or summoning the accused
on the basis of evidence recorded during trial
under Section 319 Cr.P.C.

The power under Section 319 of the Code is
conferred on the court to ensure that justice is
done to the society by bringing to book all
those guilty of an offence and to render justice
to the victim. One of the aims and purposes of
the Criminal Justice System is to maintain
social order. It is in recognition of this that the
Code has specifically conferred a power in the
court to proceed against others not arrayed as
accused in the circumstances set out by this
Section. Revision accordingly dismissed.

Criminal Revision dismissed (E-3)

Case law relied upon/discussed: -

## Text

_Characters 0–39,753 of 43,350. This is a partial read: ask again with offset=39753 for what follows._

2 All. Rahul Verma Vs State
547
comparison to what is required at the time of
framing of the charges and the evidence
should be such that the court should be of the
view that it will certainly lead to the
conviction of such person who is being sought
to be summoned under section 319 Cr.P.C.

16. In view of the above discussions,
I find that there is no material illegality
and infirmity in the impugned order nor
there is any jurisdictional error.

17. This revision has got no force
and it is accordingly dismissed.

18. The stay order, if any, shall
stand vacated.

19. The court below shall take all
endeavors in concluding the trial.
----------

(2019)10ILR A 547

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.09.2019

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Revision No. 1269 of 2019

Rahul Verma ...Revisionist
Versus
State ...Opp. Party

Counsel for the Revisionist:
Pranjal Krishna

Counsel for the Opposite Party:
A.S.G.

A.
Cr.P.C.,
1973-Section
319
-
Revisionists though nominated in the
F.I.R exonerated in the Police Report on
basis of alibi -" Evidence" - is limited to
the evidence recorded by the trial court -
Statement recorded under Section 161
of the Cr.Pc - Has only the limited
purpose of contradicting the maker
thereof- the other evidence which has
come on record between the stage of
taking cognizance by the Court till the
commencement of the trial can merely
be used for corroborative purposes - Plea
of Alibi- Section 103 of the Evidence Act
- Burden of Proof for establishing the
plea of alibi - Could be done by leading
evidence in trial court and not by relying
on
the
material
collected
during
investigation n- The Court in exercise of
its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi
of an accused- Precedent-a decision is
precedent on its own facts- the only
thing binding a party is the ratio
decidendi which is generally secundum
subjectam materiam-Application under
Section 319 Cr.P.C.- is maintainable only
when implicative evidence of probative
value more than strong suspicion comes
on record in shape of documentary or
oral evidence in trial - Power under
Section 319 of the Code - is conferred on
the court to ensure that justice is done
to the society by bringing to book all
those guilty of an offence and to render
justice to the victim.

Scope, ambit and sweep of expression
"evidence" contained under Section 319 Cr.P.C.
and explained in the para 85 in the
Constitution Bench judgement of Hardeep
Singh was not considered in the subsequent
cases in Brijendra Singh's and Shiv Prakash
Mishra's cases to the extent that any evidence
collected during investigation either in favour
of the prosecution or the accused cannot be
taken into account while exercising the power
under
Section
319
Cr.P.C.
In
view
of
unambiguous interpretation to the
word
'evidence'; it is limited to the evidence
recorded by the trial court".

A decision is precedent on its own facts- The
only thing in Judge's decision binding a party
is the principle upon which the case is decided
and for this reason it is important to analyze a
decision and isolate from it the ratio decidendi.
548 INDIAN LAW REPORTS ALLAHABAD SERIES
Application under Section 319 Cr.P.C. is
maintainable only when implicative evidence of
probative value more than strong suspicion
comes on record in shape of documentary or
oral evidence in trial.

Statement under Section 161 Cr.P.C. is not a
substantive piece of evidence. In view of
proviso to subsection (1) of Section 162
Cr.P.C., the statement can be used only with
limited purpose of contradicting the maker
thereof in the manner laid down in the said
proviso.

Consideration of plea of alibi -Section 103 of
Evidence Act - burden of proof as to any
particular fact lies on that person who wishes
the court to believe in its existence, unless it is
proved by any law that proof of that fact lies
on a particular person- The Court in exercise
of its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi of an
accused at the stage of taking cognizance,
framing of charges or summoning the accused
on the basis of evidence recorded during trial
under Section 319 Cr.P.C.

The power under Section 319 of the Code is
conferred on the court to ensure that justice is
done to the society by bringing to book all
those guilty of an offence and to render justice
to the victim. One of the aims and purposes of
the Criminal Justice System is to maintain
social order. It is in recognition of this that the
Code has specifically conferred a power in the
court to proceed against others not arrayed as
accused in the circumstances set out by this
Section. Revision accordingly dismissed.

Criminal Revision dismissed (E-3)

Case law relied upon/discussed: -

1. Hardeep Singh Vs St. of Punj. (2014) 3 SCC
92
2. Brijendra Singh & Ors. Vs St. of Raj. (2017)
7 SCC 706
3. Shiv Prakash Mishra Vs St. of U.P.& ors.
passed in Criminal Appeal No.1105 of 2019
(arising out of S.L.P. (Crl.) No.2168 of 2019)
dated 23.7.2019
4. Quinn Vs Leathem (1901) AC 495 Earls of
Halsbury L.C.
5.
St.
of
Har.
Vs
Sher
Singh,
Manu
SC/0236/1981
6. Gurcharan Singh Vs St. of Punj. Manu
SC/0122/1955
7. Chandrika Prasad Singh Vs St. of Bihar
Manu SC/0084/1971
8. St. of Ori. Vs Debendra Nath Padhi (2004) 8
SCC 568

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present criminal revision has
been referred by the accused-revisionist
against the order dated 07.09.2019 passed
by the learned Trial Court in Sessions
Trail No. 385 of 2012 (C.B.I. versus
Rahul Verma) arising out of Crime No.
R.C. 14 (S) of 2010 of Police Station
C.B.I./S.C.B./Lucknow under Sections
302, 201, 364 IPC pending in the Court of
learned Special Judge C.B.I., Court No. 2,
Lucknow.

2. Vide impugned order, the learned
Trial Court has accepted the application
dated 06.08.2019 filed by the C.B.I. for
taking on record the certificate under
Section 65-B of the Evidence Act in
respect of Call Details Record(C.D.R.) of
Mobile
Nos.
9869306235
and
9454741884.

3. The present case is based on
circumstanial evidence. An FIR at Case
Crime No. 842 of 2008 was registered
under Section 302 and 201IPC, Police
Station Kalyanpur, District Kanpur on
03.09.2008 on the basis of inquest and
post mortem report etc, and on the
complaint of Mr. O.P. Arya,
2 All. Rahul Verma Vs State
549

4. This Court vide order dated
08.10.2010 passed in Writ Petition
No.15831(MB) of 2009 filed by Mr. S.K.
Bajpai, transferred the investigation of
both the cases to C.B.I./S.C.B., Lucknow.
Charge-sheet No.2 of 2012 was filed
against the accused, Rahul Verma on
18.04.2012. According to the aforesaid
charge-sheet, a stack of human bones was
recovered
from
the
I.I.T.
Campus,
Kanpur. It was sent to C.F.S.L. Candigarh
for examination. C.F.S.L. Chandigarh
prepared its report dated 05.04.2011.
According to the said report on the basis
of Cellular and Molecular examination,
the skeleton was of Sri Adesh Kumar
Bajpai s/o Surya Kumar Bajpai and
Savitri Devi. Along with the aforesaid
charge-sheet, document D-32, true copy
of C.D.R. and D-33, E-mail massages and
Exh.Ka29 and Ka25 were enclosed.
Along with the charge-sheet certificate
under Section 65-B of the Evidence Act
was not enclosed.

4. The accused-applicant filed an
application No.25-B before the Trial
Court stating that in absence of the
certificate under Section 65-B of the
Evidence
Act,
the
electronic
record/evidence is not admissible in
evidence. The C.B.I. filed its objection to
the said application and the learned Trial
Court vide order dated 05.04.2019 held
that as many as 41 witnesses were
examined and the application dated
17.10.2018
was
filed
when
the
examination of P.W.34, Rana Pratap
Singh was on. The Trial Court held that
decision
on
admissibility
or
inadmissibility of evidence should not be
rendered at the stage of taking evidence
on record inasmuch as there is no
provision like Order XIII, Rule 3 C.P.C.
in the Code of Criminal Procedure.
Therefore, the trial Court said that the said
application would be decided at the time
of final stage and at this stage the decision
could not be rendered on the admissibility
or non admissibility of the evidence.

5. After the aforesaid order, it
appears that the C.B.I. vide letter dated
12.07.2019 wrote to D.E.(Vigilance),
BSNL, Kanpur Telecom District, Kanpur
stating that during investigation of the
case, C.D.Rs. of Mobile Nos. 9869306435
and 9454741884 were provided to the
C.B.I. by the BSNL vide letter dated
08.06.2011
and
now
the
Special
Judge/C.B.I. trying the case had directed
to produce the certificate under Section
65-B of the Evidence Act in respect of the
above mentioned C.D.Rs. of the mobile
numbers. It was, therefore, requested that
certificate under Section 65-B of the
Evidence Act, 1872 to be provided for the
C.D.Rs. of the aforesaid two mobile
numbers. Therefore, certificate under
Section 65-B of the Evidence Act was
issued on 20.07.2019 by Manoj Manjul,
S.D.E. (MS) BSNL office of O/o GM
(Mobile Services), Kanpur in respect of
C.D.Rs. of Mobile Nos. 9869306435 (for
the
period
between
25.08.2007
to
28.08.2008) and 9454741884 (for the
period
between
10.08.2008
to
23.08.2008). It was said that the C.D.Rs.
were directly fetched from the C.D.R.
server Chandigarh by using printer of the
available electronic records of BSNL,
Kanpur. It was further said that no
tampering was made in the aforesaid
C.D.Rs.

6. C.B.I. vide application dated
06.08.2019
submitted
the
aforesaid
certificate in the court of learned Trial
Court stating therein that by inadvertent
mistake a certificate under Section 65-B
550 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Evidence Act in respect of C.D.Rs.
of aforesaid two mobile numbers could
not be filed by the investigating officer
and, now the certificate under Section 65B of the Evidence Act had been obtained
in respect of C.D.Rs. of the aforesaid two
mobile numbers from the competent
authority and, therefore, the same be
taken on record.

7. The accused filed objection a on
13.08.2019 against the said application
dated 06.08.2019 stating that the S.P.,
C.B.I.(S.C.B.) at Lucknow in its letter
dated 12.07.2019 had mislead the BSNL
inasmuch as it was wrongly mentioned
that "Now the Hon'ble Court of Spl. Judge
C.B.I. Anti Corruption has directed to
produce certificate u/s 65-B, Evidence
Act in respect of above mentioned mobile
number". It was further said that the
prosecution could not be allowed to plug
in the holes in its case so as to take
advantage of its own wrong. The
certificate obtained under Section 65-B of
the Evidence Act in the garb of direction
by
the
trial
Court
amounted
to
reinvestigation of the case to plug in the
holes in the prosecution story which was
not permissible under the law. It was
further
said
that
application
dated
06.08.2019 for taking on record the
certificate under Section 65-B of the
Evidence Act should be rejected.

8.

Besides
taking
primarily
objections on merit, it was said that the
Evidence Act was amended in the year
2000 incorporating Sections 65-A and 65B. The investigating officer filed chargesheet in the year 2012 and, therefore, it
should be assumed that he had knowledge
of the existing provisions of the Evidence
Act. However, no such certificate as
required under Section 65-B of the
Evidence Act was filed along with the
charge-sheet and, therefore, at this stage
the Court should not allow any lacunae in
the investigation to be filled in during the
trial. It was also said that the certificate
under Section 65-B of the Evidence Act
had been obtained only on 20.07.2019
and, it was not part of the charge-sheet
and, therefore, it was not provided to the
accused under Section 207 Cr.P.C. neither
the said certificate was available before
the Court at the time of framing of the
charge. It was said that as many as 44
prosecution witnesses had been examined
since 06.04.2013 and, the accused did not
have liberty to cross examine the
witness(es) on the said certificate under
Section 65-B of the Evidence Act. It is
well established law that the certificate
has to be of the date when electronic
record is generated and it cannot be of the
later date.

9. The Trial Court after considering
the submissions of the parties has passed
the impugned order whereby it has
accepted the application dated 06.08.2019
filed by the C.B.I. and taken it on record
the Certificate under Section 65-B of the
Evidence Act on the ground that non
filing of certificate under Section 65-B of
the Evidence Act along with electronic
record is a irregularity which can be
rectified later on.

10. Heard Mr. Nandit Srivastava,
Senior Advocate assisted by Mr. Pranjul
Krishna appearing for the revisionist, Mr.
S.B. Pandey Senior Advocate assisted by
Mr. Kazim Ibrahim, appearing for the
respondent.

11. Assailing the order dated
07.09.2019 passed by the Trial court, Sri
Nandit
Srivastava,
learned
Senior
2 All. Rahul Verma Vs State
551
Advocate submits that there is no
provision in law which permits the
prosecution to move an application for
taking on record the certificate under
Section 65-B of the Evidence Act at the
belated stage inasmuch if same is not filed
with the charge sheet. Trial court has no
power to take the certificate on record at
the later stage. It is further submitted that
as many as 44 prosecution witnesses have
been examined and the certificate which
was not part of the charge sheet, was not
given to the accused under Section 207
Cr.P.C. and, therefore, the accused did not
have liberty to cross examine any of the
witnesses on the certificate. He further
submits that certificate dated 20.07.2019
has been obtained almost after 7 years
from the date of submission of the charge
sheet wherein in the case of Anvar P.V.
versus P.K. Basheer and ors : (2014) 10
SCC 473, it has been held that the
certificate has to be of the date when the
electronic
record
is
produced
and,
therefore,
it
cannot
be
generated
subsequently. He further submits that
there is no provision under the Code of
Criminal Procedure except under Section
391 Cr.P.C. to take additional evidence.
Accepting certificate under Section 65-B
of the Evidence Act vide impugned order
dated 07.09.2019 amounts to filling in the
lacunae in the prosecution case and, the
same is not permitted under the law
inasmuch as it would seriously prejudice
the case of the accused.

12. On the other hand, Mr.
S.B.Pandey, learned Senior Advocate
submits that non filing of the certificate
under Section 65-B of the Evidence Act
along with the electronic record was a
mere omission which could be rectified at
later stage. He further submits that
evidence has not been closed and trial is
still on and, the accused would have
liberty to cross examine any of the
witnesses on the certificate. Further,
certificate has been taken on record and,
when it is proved, the accused would have
liberty to cross examine the witness. He,
therefore, submits that no prejudice has
been caused to the accused by taking
certificate under Section 65-B of the
Evidence Act on record.

13.

I
have
considered
the
submissions carefully.

14. Chapter 5 of the Evidence Act
provides
for
documentary
evidence.
Section 65 of the Evidence Act provides
the case in which secondary evidence
relating to document is given. Section 65A and 65-B were inserted by the
Information Technology Act, 2000 with
effect
from 17.10.2000. These two
sections provides special provisions as to
evidence relating to Electronic records.
Section 65-A of the Evidence Act
provides that contents of electronic
records may be produced in accordance
with the provisions of Section 65-B of the
Evidence Act.

Section 65-B of the Evidence Act
reads as under:-

"65B. 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
552 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subsection (1) in respect of a computer output
shall be the following, namely:--

(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)Where over any period, the
function
of
storing
or
processing
information for the purposes of any
activities regularly carried on over that
period as mentioned in clause (a) of subsection (2) was regularly performed by
computers, whether--

(a) by a combination of computers
operating over that period; or

(b) by different computers operating
in succession over that period; or

(c) by different combinations of
computers operating in succession over
that period; or

(d) in any other manner involving the
successive operation over that period, in
whatever order, of one or more computers
and one or more combinations of
computers, all the computers used for that
purpose during that period shall be treated
for the purposes of this section as
constituting a single computer; and
references in this section to a computer
shall be construed accordingly.

(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 subsection (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.
2 All. Rahul Verma Vs State
553

(5) For the purposes of this section,--

(a) information shall be taken to be
supplied to a computer if it is supplied
thereto in any appropriate form and
whether it is so supplied directly or (with
or without human intervention) by means
of any appropriate equipment;

(b) whether in the course of activities
carried on by any official information is
supplied with a view to its being stored or
processed for the purposes of those
activities
by
a
computer
operated
otherwise than in the course of those
activities,
that
information,
if
duly
supplied to that computer, shall be taken
to be supplied to it in the course of those
activities;

(c) a computer output shall be taken
to have been produced by a computer
whether it was produced by it directly or
(with or without human intervention) by
means of any appropriate equipment.
Explanation.--For the purposes of this
section any reference to information being
derived from other information shall be a
reference to its being derived therefrom
by calculation, comparison or any other
process.]"

15.

Preliminary
purpose
of
incorporating Sections 65-A and 65-B of
the Evidence Act is to sanctify proof by
secondary evidence. Computer output is a
deemed document for the purpose of
proof. Under sub-section 1 of Section 65B, it is mandated that 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, shall also be
deemed to be a document. The section
lays down certain conditions which have
to be satisfied in relation to the
information and computer in question. If
those
conditions
are
satisfied,
the
electronic record 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.

16. Sub-section 2 of the Section 65B of the Evidence Act provides conditions
which have to be satisfied so as to make
computer output as primary evidence.
Thus, when a statement is to be produced
under this section, it should be identifying
the electronic record containing the
statement and describing the manner in
which it was produced; giving particulars
of the device involved in the production
of the electronic record showing that the
same was produced by the computer and
showing compliance with conditions of
Sub-section 2 of Section 65-B of the
Evidence Act. The statement should 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
such statement shall be evidence of the
matter stated in the certificate.

17. Under Sub-section 4 of Section
65-B of the Evidence Act, it would be
sufficient for this purpose that the
statement is made to the best of the
knowledge and belief of the person
making it.

18. The present case is based on
circumstantial
evidence.
Evidence
consists of three parts (i) electronic
record; (ii) documentary evidence other
than electronic record; and (iii) oral
evidence.

19. The Supreme Court in the case of
Anvar P.V. versus P.K. Basheer and
ors (supra) held that the evidence relating
554 INDIAN LAW REPORTS ALLAHABAD SERIES
to electronic record by way of secondary
evidence shall not be admitted in evidence
unless the requirements under Section 65B of the Evidence Act are satisfied. It has
further been held that the electronic
records should be accompanied by the
certificate in terms of Section 65-B of the
Evidence Act obtained at the time of
taking the document, without which, the
secondary evidence pertaining to that
electronic record is inadmissible.

Para 22 of the said judgment is
extracted hereinbelow:-

"22.
The
evidence
relating
to
electronic record, as noted hereinbefore,
being a special provision, the general law
on secondary evidence under Section 63
read with Section 65 of the Evidence Act
shall yield to the same. Generalia
specialibus non derogant, special law will
always prevail over the general law. It
appears, the court omitted to take note of
Sections 59 and 65-A dealing with the
admissibility
of
electronic
record.
Sections 63 and 65 have no application in
the case of secondary evidence by way of
electronic record; the same is wholly
governed by Sections 65-A and 65-B. To
that extent, the statement of law on
admissibility
of
secondary
evidence
pertaining to electronic record, as stated
by this Court in Navjot Sandhu case
[State (NCT of Delhi) v. Navjot Sandhu,
(2005) 11 SCC 600 : 2005 SCC (Cri)
1715] , does not lay down the correct
legal position. It requires to be overruled
and we do so. An electronic record by
way of secondary evidence shall not be
admitted
in
evidence
unless
the
requirements under Section 65-B are
satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied
by the certificate in terms of Section 65-B
obtained at the time of taking the
document, without which, the secondary
evidence pertaining to that electronic
record, is inadmissible."

20. Thus, the aforesaid judgment is
not an authority on the point whether
certificate under Section 65-B of the
Evidence Act in respect of the electronic
record can be produced subsequently as is
the case at hands. Section 311 Cr.P.C.
provides that at any stage of inquiry or
trial or other proceedings under the Code,
the Court may summon any person as a
witness or examine any person in
attendance though not summoned as
witness, recall and re-examine any person
already examined, if it appears to be
essential to the just decision of the case.
Thus, what is relevant for calling the
additional evidence is to prevent failure of
justice and, once the Court is of the
opinion that to prevent the failure of
justice and for the just decision of the
case, it is required to receive additional
evidence, there is no restriction on the
count of the evidence which may be
received, evidence may be former or
substantial.

21. The Supreme Court in the case
of Rajeswar Prasad Misra v. State of
W.B., (1966) 1 SCR 178 in para 10 had
opined as under:-

"10. Additional evidence may be
necessary for a variety of reasons which it
is hardly proper to construe one section
with the aid of observations made to do
what the legislature has refrained from
doing, namely, to control discretion of the
appellate
court
to
certain
stated
circumstances. It may, however, be said
that
additional
evidence
must
be
necessary not because it would be
2 All. Rahul Verma Vs State
555
impossible to pronounce judgment but
because there would be failure of justice
without it. The power must be exercised
sparingly and only in suitable cases. Once
such action is justified, there is no
restriction on the kind of evidence which
may be received. It may be formal or
substantial. It must, of course, not be
received in such a way as to cause
prejudice to the accused as for example it
should not be received as a disguise for a
retrial or to change the nature of the case
against him. The order must not ordinarily
be made if the prosecution has had a fair
opportunity and has not availed of it
unless the requirements of justice dictate
otherwise. Commentaries upon the Code
are full of cases in which the powers
under Section 428 were exercised. We
were cited a fair number at the hearing.
Some of the decisions suffer from the sin
of generalization and some others from
that of arguing from analogy. The facts in
the cited cases are so different that it
would be futile to embark upon their
examination. We might have attempted
this, if we could see some useful purpose
but we see none. We would be right in
assuming the existence of a discretionary
power in the High Court and all that we
consider necessary is to see whether the
discretion was properly exercised."

22. The Supreme Court Mohanlal
Shamji Soni v. Union of India: 1991 Supp
(1) SCC 271 has held that the cardinal
rule of law of evidence that the best
available evidence should be brought
before the court to prove the fact or points
in issue. It is the duty of the court not only
to do justice but also to ensure that justice
is being done.

Para 10 of the aforesaid report is
reproduced hereinbelow:-

"10. It is a cardinal rule in the law of
evidence that the best available evidence
should be brought before the court to
prove a fact or the points in issue. But it is
left either for the prosecution or for the
defence to establish its respective case by
adducing the best available evidence and
the court is not empowered under the
provisions of the Code to compel either
the prosecution or the defence to examine
any particular witness or witnesses on
their sides. Nonetheless if either of the
parties withholds any evidence which
could
be
produced
and
which,
if
produced, be unfavourable to the party
withholding such evidence, the court can
draw a presumption under Illustration (g)
to Section 114 of the Evidence Act. In
such a situation a question that arises for
consideration is whether the presiding
officer of a court should simply sit as a
mere umpire at a contest between two
parties and declare at the end of the
combat who has won and who has lost or
is there not any legal duty of his own,
independent of the parties, to take an
active role in the proceedings in finding
the truth and administering justice? It is a
well accepted and settled principle that a
court
must
discharge
its
statutory
functions -- whether discretionary or
obligatory
--
according
to
law
in
dispensing justice because it is the duty of
a court not only to do justice but also to
ensure that justice is being done. In order
to enable the court to find out the truth
and render a just decision, the salutary
provisions of Section 540 of the Code
(Section 311 of the new Code) are
enacted
whereunder
any
court
by
exercising its discretionary authority at
any stage of enquiry, trial or other
proceeding can summon any person as a
witness or examine any person in
attendance though not summoned as a
556 INDIAN LAW REPORTS ALLAHABAD SERIES
witness or recall or re-examine any person
in attendance though not summoned as a
witness or recall and re-examine any
person
already
examined
who
are
expected to be able to throw light upon
the
matter
in
dispute;
because
if
judgments happen to be rendered on
inchoate, inconclusive and speculative
presentation of facts, the ends of justice
would be defeated."

23. The Supreme Court in its recent
judgment in the case of State by
Karnataka Lokayukta Police Station,
Bengaluru versus M.R. Hiremath passed
in Criminal Appeal No.819 of 2019 has
considered the effect of failure to produce
a certificate under Section 65-B(4) of the
Evidence Act, at the stage when the
charge sheet was filed. The Supreme
Court in the aforesaid judgment has held
that need for production of certificate
would arise when the electronic record is
sought to be produced in evidence at the
trial. It is at that stage when the necessity
of production of certificate would arise.

Paras 14 to 17 of the aforesaid report
are extracted here in below:-

"14. The provisions of Section 65-B
came up for interpretation before a threeJudge Bench of this Court in Anvar P.V.
v. P.K. Basheer [Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473 : (2015) 1
SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] . Interpreting
the provision, this Court held: (SCC p.
483, para 14)

"14. Any documentary evidence by
way of an electronic record under the
Evidence Act, in view of Sections 59 and
65-A, can be proved only in accordance
with the procedure prescribed under
Section 65-B. Section 65-B deals with the
admissibility of the electronic record. The
purpose of these provisions is to sanctify
secondary evidence in electronic form,
generated by a computer."

15. Section 65-B(4) 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
[Anvar P.V. v. P.K. Basheer, (2014) 10
SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] holds that the requirement of
producing a certificate arises when the
electronic record is sought to be used as
evidence. This is clarified in the following
extract from the judgment: (Anvar P.V.
case [Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] , SCC p. 484, para 16)

"16. ... 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)

16. The same view has been
reiterated by a two-Judge Bench of this
Court in Union of India v. Ravindra V.
Desai [Union of India v. Ravindra V.
Desai, (2018) 16 SCC 273 : (2019) 1 SCC
(L&S) 225] . The Court emphasised that
non-production of a certificate under
Section 65-B on an earlier occasion is a
2 All. Rahul Verma Vs State
557
curable defect. The Court relied upon the
earlier decision in Sonu v. State of
Haryana [Sonu v. State of Haryana,
(2017) 8 SCC 570 : (2017) 3 SCC (Cri)
663] , in which it was held: (Sonu case
[Sonu v. State of Haryana, (2017) 8 SCC
570 : (2017) 3 SCC (Cri) 663] , SCC p.
584, para 32)

"32. ... The crucial test, as affirmed
by this Court, is whether the defect could
have been cured at the stage of marking
the document. Applying 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
prosecution an opportunity to rectify the
deficiency."

17. Having regard to the above
principle of law, the High Court erred in
coming to the conclusion that the failure
to produce a certificate under Section 65B(4) of the Evidence Act at the stage
when the charge-sheet 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."

24. The Supreme Court in the case
of Shafhi Mohammad v. State of H.P.,
(2018) 2 SCC 801 : (2018) 1 SCC (Cri)
860 has clarified the legal position
regarding admissibility of the electronic
evidence, especially by a party who is not
in a possession of device from which a
document is produced. In the aforesaid
judgment, it has been held that after
taking note of the judgment of three judge
bench in the case of Anvar P.V. versus
P.K.
Basheer
and
Ors
(supra),
if
electronic evidence is authentic and
relevant, the same can be admitted subject
to the court being satisfied about its
authenticity
and
procedure
for
its
admissibility may depend on the facts,
situation such as whether a person
producing such evidence is in a position
to furnish under Section 65-B(4) of the
Evidence Act.

25. It has further been said that
Sections 65-A and 65-B of the Evidence
Act cannot be held to be a complete code
on the subject

Paras 26 to 30 of the aforesaid report
which are relevant are reproduced herein
below:-

"26. Sections 65-A and 65-B of the
Evidence Act, 1872 cannot be held to be a
complete code on the subject. In Anvar
P.V. [Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] , this Court in para 24
clarified
that
primary
evidence
of
electronic record was not covered under
Sections 65-A and 65-B of the Evidence
Act. Primary evidence is the document
produced before the Court and the
expression "document" is defined in
Section 3 of the Evidence Act to mean
any matter expressed or described upon
any substance by means of letters, figures
or marks, or by more than one of those
means, intended to be used, or which may
be used, for the purpose of recording that
matter.

27. The term "electronic record" is
defined
in
Section
2(1)(t)
of
the
Information Technology Act, 2000 as
follows:

"2. (1)(t) "electronic record" means
data, record or data generated, image or
sound stored, received or sent in an
electronic form or micro film or computer
generated micro fiche;"
558 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The expression "data" is defined
in Section 2(1)(o) of the Information
Technology Act as follows:

"2.
(1)(o)
"data"
means
a
representation of information, knowledge,
facts, concepts or instructions which are
being prepared or have been prepared in a
formalised manner, and is intended to be
processed, is being processed or has been
processed in a computer system or
computer network, and may be in any
form
(including
computer
printouts
magnetic
or
optical
storage
media,
punched cards, punched tapes) or stored
internally
in
the
memory
of
the
computer;"

29. The applicability of procedural
requirement under Section 65-B(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."

26. Thus, there is no bar for
accepting the certificate under Section 65B(4) of the Evidence Act at later stage if
it was not filed along with the charge
sheet. The trial is yet to conclude and the
accused may avail liberty of examining or
re-examining any witnesses in respect of
the certificate and electronic record of call
detail of two mobile numbers mentioned
hereinabove. The certificate under Section
65-B(4) of the Evidence Act is procedural
requirement
for
admissibility
of
secondary evidence of electronic record
and, therefore, it can be produced at a
later stage during the trial, if it was not
part of the charge sheet. The accused is
not prejudiced in any manner by taking on
record the certificate under Section 65-B
of the Evidence Act at the later stage
when trial is still on. Further, it is the duty
of the court under Section 311 Cr.P.C. to
see that the best available evidence is
brought before it to prevent failure of
justice and for the just decision of the
case. For the said purpose the court is
bestowed with wide discretion.

27. In view thereof, I do not find any
illegality or impropriety in the impugned
order dated 07.09.2019.