# Shyam Sunder Prasad Revisionist v. C.B.I., Lko. Opp. Party

- **Citation:** (2022) 12 ILRA 585
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** Crl. Revision No. 921 of 2022
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-sunder-prasad-revisionist-v-c-b-i-lko-opp-party-47942
- **Pages:** 7

## Headnote

Dhananjay Singh

Counsel for the Opp. Party
Shiv P. Shukla

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 397/401 , 311 -
Prevention of Corruption Act, 1988 -
Sections 7, 13(2) r/w 13(1)(d)-Challenge
to-summoning order u/s 311-revisionist
(Branch Manager) asked for bribe for defreezing complainant's account-a trap was
laid by CBI team and the revisionist was
caught red handed with tainted bribe
cheque -CFSL report was prepared by one
Senior
Scientific
Officer-CBI
filed
application u/s 311 Cr.P.C. to allow
substitute Senior Scientific Officer as
prosecution witness in place of earlier
officer
as
she
is
residing
abroadrevisionist filed objection that substitute
voice examiner could not be examinedtrial court rejected the objection and
allowed the application-Section 293(3)
Cr.P.C. provides that if such an expert is
unable to attend personally, any other
responsible officer working with him may
be deputed to attend the court-When the
opinion of expert u/s 45A of Indian
Evidence Act is admitted by trial, it
becomes the opinion of the Court-Hence,
impugned order requires no interference.
(Para 1 to 26)

B. When the Court has to form and opinion
upon a point of foreign law or of science
or art or fingerprints, handwriting, the
opinions upon that point of persons
specially skilled in such foreign law,
science or art are relevant facts. Such
persons are called experts(section 45 of
Evidence Act)

C. When in any proceeding, the court has
to form an opinion on any matter relating
586 INDIAN LAW REPORTS ALLAHABAD SERIES
to any information transmitted or stored
in any computer resource or any other
electronic or digital form, the opinion of
the
Examiner
of
Electronic
Evidence
referred
to
in
section
79A
of
the
Information Technology Act, 2000 is a
relevant fact.(Section 45A of Evidence
Act)

The revision is dismissed. (E-6)

List of Cases cited:

## Text

12 All. Shyam Sunder Prasad Vs. C.B.I., Lko.
585
extends till
conclusion of the trial.
Therefore, the impugned order rejecting the
application of the accused vide order under
challenge without even giving any reason is
perverse and liable to be set aside.

9. Even otherwise, law in this regard
is settled. Supreme Court in Sushila
Aggarwal and others vs. State (NCT of
Delhi) and others (2020)5 SCC 1 has held
that the anticipatory bail order can continue
till the end of the trial, unless there are
some
special
or
peculiar
features
necessitating the court to limit the tenure of
anticipatory bail. Relevant para 91.2 is
extracted below :

"91.2 : As regards the second question
referred to this court, it is held that the life
or duration of an anticipatory bail order
does not end normally at the time and stage
when the accused is summoned by the
court, or when charges are framed, but can
continue till the end of the trial. Again, if
there are any special or peculiar features
necessitating the court to limit the tenure of
anticipatory bail, it is open for it to do so."

10. In view of the above, the
impugned order dated 13.7.2022 (supra) is
set aside. The matter is remanded back to
the court below to pass a fresh order in the
light of the observation made above and the
law settled by the Supreme Court in the
case of Sushila Aggarwal's case (supra).

11. The petition is disposed of.
----------
(2022) 12 ILRA 585
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.11.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.
Crl. Revision No. 921 of 2022

Shyam Sunder Prasad ...Revisionist
Versus
C.B.I., Lko. ...Opp. Party

Counsel for the Revisionist:
Dhananjay Singh

Counsel for the Opp. Party
Shiv P. Shukla

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 397/401 , 311 -
Prevention of Corruption Act, 1988 -
Sections 7, 13(2) r/w 13(1)(d)-Challenge
to-summoning order u/s 311-revisionist
(Branch Manager) asked for bribe for defreezing complainant's account-a trap was
laid by CBI team and the revisionist was
caught red handed with tainted bribe
cheque -CFSL report was prepared by one
Senior
Scientific
Officer-CBI
filed
application u/s 311 Cr.P.C. to allow
substitute Senior Scientific Officer as
prosecution witness in place of earlier
officer
as
she
is
residing
abroadrevisionist filed objection that substitute
voice examiner could not be examinedtrial court rejected the objection and
allowed the application-Section 293(3)
Cr.P.C. provides that if such an expert is
unable to attend personally, any other
responsible officer working with him may
be deputed to attend the court-When the
opinion of expert u/s 45A of Indian
Evidence Act is admitted by trial, it
becomes the opinion of the Court-Hence,
impugned order requires no interference.
(Para 1 to 26)

B. When the Court has to form and opinion
upon a point of foreign law or of science
or art or fingerprints, handwriting, the
opinions upon that point of persons
specially skilled in such foreign law,
science or art are relevant facts. Such
persons are called experts(section 45 of
Evidence Act)

C. When in any proceeding, the court has
to form an opinion on any matter relating
586 INDIAN LAW REPORTS ALLAHABAD SERIES
to any information transmitted or stored
in any computer resource or any other
electronic or digital form, the opinion of
the
Examiner
of
Electronic
Evidence
referred
to
in
section
79A
of
the
Information Technology Act, 2000 is a
relevant fact.(Section 45A of Evidence
Act)

The revision is dismissed. (E-6)

List of Cases cited:
1. Official Liquidator Vs Dharti Dhan (P) Ltd
(1977) 2 SCC 166

2. Dinesh Chand Pandey Vs HC of M.P. & anr.
(2010) 11 SCC 500

3. Dalchand Vs Municipal Corp. Bhopal (1984) 2
SCC 486

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

1. The present criminal revision under
Section 397 read with Section 401 Cr.P.C. has
been filed against the order dated 20.08.2022
passed by the Special Judge, C.B.I. Court No.6,
Lucknow in Criminal Case No.04 of 2014,
Union of India through CBI Vs. Shyam Sunder
Prasad, arising out of RC No.0062014(A)0015,
under Sections 7 and 13(2) read with 13(1)(d)
Prevention of Corruption Act, Police Station
CBI/ACB, Lucknow, whereby the learned trial
court has allowed the Application No.B-28 filed
by the Central Bureau of Investigation ( for
short ''CBI') under Section 311 Cr.P.C. for
summoning Sri Mahesh Kumar Jain to give
evidence in respect of the electronic evidence as
Smt. Manisha Kulshreshta, who prepared paper
Nos.B-22/1 to B-22/4, is not living in India now
and directed for calling Sri Mahesh Kumar Jain
as a witness to prove the said documents.

2. The facts, in brief, are that a written
complaint was received by the CBI,
Lucknow from Sri Kaleem Ahmad on
23.4.2014 regarding demand of illegal
gratification by the revisionist. Sri Kaleem
Ahmad had taken a Cash Credit Loan of
Rs.80,00,000/- from Punjab National Bank,
Dhangata, Sant Kabir Nagar. Some cheques
of this account got dishonored. The
complainant approached the revisionist,
who was posted as Branch Manager, and
inquired about dishonoring of his cheques
despite availability of Cash Credit Loan
amount in his account. The revisionist told
the complainant that his account was frozen
and it would not be de-freezed until he
gave him Rs.80,000/- as bribe. The
complainant requested the revisionist to
reduce the bribe amount and the revisionist
agreed to accept a bribe of Rs.50,000/- by
cheque from the complainant for defreezing his account.

3. The CBI after verifying the
complaint, registered an FIR against the
revisionist under Section 7 of Prevention of
Corruption Act on 26.4.2014. A trap was
laid on 26.4.2014 by the team of the CBI.
The team was accompanied by the
complainant along with two independent
witnesses. The revisionist was caught red
handed with tainted bribe cheque for an
amount of Rs.50,000/- received from the
complainant for de-freezing his Cash Credit
Loan account.

4. The CBI sent the CDs containing
conversation
recorded
between
the
complainant and the revisionist and their
specimen voice collected during pre and
post trap proceedings of the case for
examination by the Director, Central
Forensic Science Laboratory (CBI), New
Delhi ( for short ''CSFL') on 5.5.2014. The
CFSL prepared the report dated 13.6.2014,
which was brought on record by the CBI
before the trial court. The said report was
prepared by Smt. Manisha Kulshreshtha,
12 All. Shyam Sunder Prasad Vs. C.B.I., Lko.
587
Senior Scientific Officer, GR.II (Phy)-cumChemical Examiner, CFSL. The result of
the examination would reveal that the
questioned voices and the specimen voice
of the revisionist were similar. The said
report stated "hence, the voices marked
exhibits ''Q-1(P)', & ''Q-2(P)' are the
probable voice of the persons (Shri Shyam
Sundar Prasad) whose specimen voice is
marked exhibit ''S-1(P)'."

5. An application on behalf of the CBI
under Section 311 Cr.P.C. was filed on
2.6.2022 before the trial court with request
to allow Sri Mahesh Kumar Jain, Senior
Scientific Officer Grade-II (Phy), CFSL as
prosecution witness in place of Smt.
Manisha Kulshreshta, who had prepared
the CFSL report, as she is residing abroad
and immediate examination of her is not
possible. The revisionist filed an objection
on 10.8.2022 that the substitute voice
examiner could not be examined as he had
not conducted the examination of electronic
evidence related to the present case.

6. Learned counsel for the revisionist
also argued that the CSFL was not a
notified organization/laboratory by the
Central Government under Section 79A of
the Information Technology Act, 2000 and,
therefore, the test report allegedly released
by Dr. Manisha Kulshreshta was not
consistent with Section 45A of the Indian
Evidence Act, 1872. However, the trial
court rejected the objection and allowed the
application filed by the CBI and ordered to
summon Sri Mahesh Kumar Jain.

7. Learned counsel for the revisionist
submits that the learned trial court had
admitted the report without deciding the
question of relevancy of the said document
as per Section 136 of the Indian Evidence
Act. CSFL report being the electronic
evidence and the witness being an expert
witness, the said report could not have
been proved by a substitute witness as he
did not carry out the examination of the
sample of voices. The Central Government
has not notified the CFSL as an examiner
of the electronic evidence according to
Section
79A
of
the
Information
Technology Act and, the opinion of any
other examiner on this behalf particularity
regarding the report of an electronic
record of a laboratory not notified by the
Central
Government,
would
not
be
relevant as per Section 45A of the Indian
Evidence Act. Thus, the CFSL report
admitted by the learned trial court vide
impugned order dated 20.8.2022 is illegal.
To have competence to examine the
electronic
evidence,
notification
of
Forensic Science Laboratory is mandatory
as required under Section 79A of the
Information
Technology
Act
and,
therefore, the CSFL report in question is
not admissible in evidence.

8. On the other hand, Sri Shiv P.
Shukla, learned counsel for the CBI has
submitted that under Section 79A of the
Information Technology Act, it is provided
that the Central Government may authorize
or notify any department, body or agency
to examine the electronic evidence. The
provision would not mean that unless an
agency/laboratory is notified by the Central
Government, it would not be competent to
examine the electronic evidence. He further
submits
that
CFSL
is
a
scientific
department established by the Central
Government in the year 1968 under the
administrative control of the CBI and
overall control of the Ministry of Home
Affairs, Government of India. It is an
ISO/IEC 17025:2017 Certified Laboratory
from National Accreditation Board of
Testing and Calibration Laboratories and,
588 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, it is competent to examine any
electronic record and give its report.

9. Section 79A of the Information
Technology Act would mean that the
Central Government may notify any other
agency for examination of the electronic
evidence, which are not established by the
Central Government and which are not
under the administrative control of the
Government.
For
CFSL,
no
such
notification would be mandatory. He,
therefore, submits that the learned trial
court has rightly allowed the application
filed by the CBI and no interference is
required by this Court.

10. I have considered the submissions
advanced by the learned counsel for the
parties and perused the record.

11. Section 79A of the Information
Technology Act reads as under:-

"79A. Central Government to notify
Examiner of Electronic Evidence.-The
Central Government may, for the purposes
of providing expert opinion on electronic
form evidence before any court or other
authority specify, by notification in the
Official Gazette, any Department, body or
agency of the Central Government or a
State Government as an Examiner of
Electronic Evidence."

12. In Section 79A of the Information
technology Act, the word "may" has been
used for the Central Government to notify
any department, body or agency for
examination
of
the
electronic
record/evidence. In some of the judgments,
the Supreme Court has interpreted the word
"may" and held that in some context, "may"
should be read as "must" and in some
context,
it
may
be
directory
or
discretionary, but it would depend on the
context in which the word "may" is used in
a provision.

13. Supreme Court in the case of
Official Liquidator Vs. Dharti Dhan (P)
Ltd. (1977) 2 SCC 166, in paragraph 8 of
the judgement held as under:-

"8.
Thus,
the
question
to
be
determined in such cases always is whether
the power conferred by the use of the word
"may" has, annexed to it, an obligation
that, on the fulfillment of certain legally
prescribed conditions, to be shown by
evidence, a particular kind of order must be
made. If the statute leaves no room for
discretion the power has to be exercised in
the manner indicated by the other legal
provisions which provide the legal context.
Even then the facts must establish that the
legal conditions are fulfilled. A power is
exercised even when the court rejects an
application to exercise it in the particular
way in which the applicant desires it to be
exercised. Where the power is wide enough
to cover both an acceptance and a refusal
of an application for its exercise, depending
upon facts, it is directory or discretionary.
It is not the conferment of a power which
the word "may" indicates that annexes any
obligation to its exercise but the legal and
factual context of it. This as we understand
it, was the principle laid down in the case
cited before us: Frederic Guilder Julius v.
Right Rev. Lord Bishop of Oxford: Re v.
Thomas Thellusson Carter [5 AC 214] ."

14. Similarly, where the expression
"shall" has been used in a provision, it has
been held that it would not necessarily
mean that it is mandatory. It will always
depend upon the facts of a given case, the
conjunctive
reading
of
the
relevant
provisions along with other provisions of
12 All. Shyam Sunder Prasad Vs. C.B.I., Lko.
589
the Rules, the purpose sought to be
achieved
and
the
object
behind
implementation of such a provision.

15. Supreme Court in the case of
Dinesh Chandra Pandey Vs. High Court
of M.P. and another, (2010) 11 SCC 500 in
paragraph 15 of the judgement held has
under:-

"15. The courts have taken a view that
where the expression "shall" has been used
it would not necessarily mean that it is
mandatory. It will always depend upon the
facts of a given case, the conjunctive
reading of the relevant provisions along
with other provisions of the Rules, the
purpose sought to be achieved and the
object behind implementation of such a
provision. This Court in Sarla Goel v.
Kishan Chand [(2009) 7 SCC 658] , took
the view that where the word "may" shall
be read as "shall" would depend upon the
intention of the legislature and it is not to
be taken that once the word "may" is used,
it per se would be directory. In other words,
it is not merely the use of a particular
expression that would render a provision
directory or mandatory. It would have to be
interpreted in the light of the settled
principles, and while ensuring that intent of
the Rule is not frustrated."

16. In the case of Dalchand Vs.
Municipal Corporation, Bhopal, (1984) 2
SCC 486, the Supreme Court held that
there are no ready tests or invariable
formulae to determine whether a provision
is mandatory or directory. The relevant
paragraph of the aforesaid judgment reads
as under:-

"...... There are no ready tests or
invariable formulae to determine whether a
provision is mandatory or directory. The
broad purpose of the statute is important. The
object of the particular provision must be
considered. The link between the two is most
important. The weighing of the consequence
of holding a provision to be mandatory or
directory is vital and, more often than not,
determinative of the very question whether
the provision is mandatory or directory.
Where the design of the statute is the
avoidance or prevention of public mischief,
but the enforcement of a particular provision
literally to its letter will tend to defeat that
design, the provision must be held to be
directory, so that proof of prejudice in
addition to non-compliance of the provision
is necessary to invalidate the act complained
of. ....."

17. Section 79A of the Information
Technology Act or provision under Section
45A of the Indian Evidence Act do not
provide that in absence of a notification in
respect of a laboratory, opinion based on
scientific examination given by a person well
versed or skilled in such science, is not
admissible in evidence. Unless such a bar is
specifically provided in law, it can not be read
as an extension of Section 79A of the
Information Technology Act that the report
given by any other body/laboratory shall not
be inadmissible in evidence in absence of
notification. If the body/laboratory is notified,
the authenticity of the report of such a
body/laboratory may not be available for
questioning.

18. When the opinion of expert under
Section 45A of the Indian Evidence Act is
admitted by the trial, it becomes the opinion
of the Court. For the sake of convenience,
Sections 45 and 45A of the Indian Evidence
Act are extracted herein-under:-

"45. Opinions of experts.--When the
Court has to form an opinion upon a point
590 INDIAN LAW REPORTS ALLAHABAD SERIES
of foreign law or of science or art, or as to
identity of handwriting 35 [or finger
impressions], the opinions upon that point
of persons specially skilled in such foreign
law, science or art, 36 [or in questions as
to identity of handwriting] 35 [or finger
impressions] are relevant facts. Such
persons are called experts.

"45A.
Opinion
of
Examiner
of
Electronic
Evidence.
--When
in
a
proceeding, the court has to form an
opinion on any matter relating to any
information transmitted or stored in any
computer resource or any other electronic
or digital form, the opinion of the Examiner
of Electronic Evidence referred to in
section 79A of the Information Technology
Act, 2000 (21 of 2000) is a relevant fact."

19. Section 136 of the Indian
Evidence Act, which gives power to the
court to decide as to admissibility of the
evidence, reads as under:-

"136.
Judge
to
decide
as
to
admissibility of evidence.--When either
party proposes to give evidence of any fact,
the Judge may ask the party proposing to
give the evidence in what manner the
alleged fact, if proved, would be relevant;
and the Judge shall admit the evidence if he
thinks that the fact, if proved, would be
relevant, and not otherwise. If the fact
proposed to be proved is one of which
evidence is admissible only upon proof of
some other fact, such last-mentioned fact
must be proved before evidence is given of
the fact first mentioned, unless the party
undertakes to give proof of such fact, and
the
Court
is
satisfied
with
such
undertaking. If the relevancy of one alleged
fact depends upon another alleged fact
being first proved, the Judge may, in his
discretion, either permit evidence of the
first fact to be given before the second fact
is proved, or require evidence to be given of
the second fact before evidence is given of
the first fact."

20. It can not be doubted that the
voice sample report of the CSFL, New
Delhi is not a relevant evidence. Whether it
is admissible or not, it would depend on it
being proved in accordance with law.

21. In view of the above, I find no
substance in the submission of learned
counsel for the revisionist that the learned
trial court has not decided the relevancy
before admitting the report of the CFSL in
evidence.

22. The objection of the revisionist
regarding calling of substitute witness for
examination vide order dated 20.8.2022 by
the Special Judge, CBI as the person who
prepared the report is not living in India,
also has no substance and is hereby
rejected.

23. Section 293 Cr.P.C. provides that
any document purporting to be a report
under the hand of a Government Scientific
Expert in respect of any matter or thing
submitted for its examination or analyse
may be used as evidence and the court may
summon or examine any such expert as to
the subject matter of his report.

24. Sub-section (3) of Section 293
Cr.P.C. specifically provides that if such an
expert is unable to attend personally, any
other responsible officer working with him
may be deputed to attend the court. For
ready reference, Section 293 Cr.P.C. is
quoted below:-

"293. Reports of certain Government
scientific
experts.--(1)
Any
document
purporting to be a report under the hand of
12 All. Virendra & Ors. Vs. State of U.P. & Ors.
591
a Government scientific expert to whom
this section applies, upon any matter or
thing duly submitted to him for examination
or analysis and report in the course of any
proceeding under this Code, may be used
as evidence in any inquiry, trial or other
proceeding under this Code.

(2) The Court may, if it thinks fit,
summon and examine any such expert as to
the subject-matter of his report.

(3)
Where
any
such
expert
is
summoned by a Court, and he is unable to
attend personally, he may, unless the Court
has expressly directed him to appear
personally, depute any responsible officer
working with him to attend the Court, if
such officer is conversant with the facts of
the case and can satisfactorily depose in
Court on his behalf.

(4) This section applies to the
following Government scientific experts,
namely:--(a) any Chemical Examiner or
Assistant
Chemical
Examiner
to
Government; (b) the Chief Controller of
Explosives; (c) the Director of the Finger
Print Bureau; (d) the Director, Haffkeine
Institute, Bombay; (e) the Director 1[,
Deputy Director or Assistant Director] of a
Central Forensic Science Laboratory or a
State Forensic Science Laboratory; (f) the
Serologist to the Government; (g) any other
Government scientific expert specified, by
notification, by the Central Government for
this purpose."

25. In view of the aforesaid
discussion, I am of the view that the
impugned order passed by the learned trial
court does not require any interference by
this Court in exercise of its revisional
jurisdiction under Section 397 read with
Section 401 Cr.P.C.

26. Thus, revision has no merit and
substance, which is hereby dismissed.
----------
(2022) 12 ILRA 591
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Crl. Revision No. 1119 of 2013

Virendra & Ors. ...Revisionists
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionists:
Sri Krishna Nand Yadav, Sri Parmeshwar Yadav

Counsel for the Opp. Parties:
Govt. Advocate, Sri Avadhesh Pratap Singh, Sri
Awadhesh Pratap Singh, Sri Niyaz Ahmad
Khan(Sr. Advocate)

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 397/401 & 145learned Magistrate passed ad interim
injunction order in favour of the party,
who initiated the proceeding u/s 145
Cr.P.C. and passed the order to attach the
subject matter of dispute, giving it to
some impartial custodian till decision of
question of title-Ld. Magistrate had not
given his satisfaction as required u/s
145(1) Cr.P.C. regarding dispute is likely
to cause the breach of peace or state of
emergency u/s 146(1) Cr.P.C.-Instead of
deciding that none of the parties were
then
in
possession,
Ld.
Magistrate
observed that the opposite parties have
usurped the possession of the entire
disputed plot in violation of civil court's
order-Thus,
the
jurisdiction
u/s
146
Cr.P.C. cannot be exercised where the
applicant has been dispossessed prior to
two months by the opposite party-Thus,
the
impugned
order
passed
by
Ld.
Magistrate u/s 145 Cr.P.C. is set asideParties are relegated to avail remedy
before civil court-it is open to respondent
who is presently recorded tenure holder of