# Shyam Sunder Prasad Revisionist v. C.B.I., Lucknow

- **Citation:** (2022) 6 ILRA 1130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-06
- **Case number:** Criminal Revision No. 588 of 2022
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-sunder-prasad-revisionist-v-c-b-i-lucknow-48634
- **Pages:** 8

## Headnote

Criminal Law - Indian Evidence Act, 1872-
Section 65 B - Code of Criminal Procedure
Act-Section 311- After framing of charges-first
prosecution witness was examined-11 witness
have been examined-application u/s 311 CRPC
filed to bring on record two certificates u/s 65-B
Indian Evidence Act -as those were filed with
chargesheet but not in a proper form-Trial court
allowed the application-if court considers the
evidence to be essential-it can summon such
person even on its own-by allowing the
application u/s 311 Cr.P.C. no prejudiced is
caused to the accused.

Revision dismissed. (E-9)

List of Cases cited:

## Text

1130 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court for wide circulation to all the
concerned, the Director General of Police,
U.P.; Chief Secretary, Govt. Of U.P.;
Principal Secretary (Law), Govt. Of U.P.
and all the District & Sessions Judges to
constitute and establish Family Welfare
Committees and make them operational
within a period of next three months
positively. Let a circular to this effect may
be isused by all the concerned authorities
attaching utmost sincerity and frame rules
for the said purpose within a period of next
two months positively.

For the reasons narrated in
paragraph no.29 out of three revisions,
Criminal Revision No.1126 of 2022 and
1187 of 2022 are hereby ALLOWED.
Order impugned date 03.03.2022 is hereby
quashed with regard to Mukesh Bansal and
Manju Bansal respectively and they shall
stand discharged from the allegations of
Section 498A, 504, 506, 307, 120-B IPC
and Section 3/4 of D.P. Act. in S.T. No.19
of 2020 arising out of case crime no. 567 of
2018 pending in the court of Additional
Sessions Judge, F.T.C.-I, Hapur and so far
as Criminal Revision No.1122 of 2022 is
concerned in Re : Sahib Bansal Vs. State of
U.P and anr is hereby REJECTED.
----------
(2022)06ILR A1130
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.06.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Revision No. 588 of 2022

Shyam Sunder Prasad ...Revisionist
Versus
C.B.I., Lucknow ...Opposite Parties

Counsel for the Revisionist:
Sri Dhananjay Singh

Counsel for the Opposite Parties:
Shiv P. Shukla

Criminal Law - Indian Evidence Act, 1872-
Section 65 B - Code of Criminal Procedure
Act-Section 311- After framing of charges-first
prosecution witness was examined-11 witness
have been examined-application u/s 311 CRPC
filed to bring on record two certificates u/s 65-B
Indian Evidence Act -as those were filed with
chargesheet but not in a proper form-Trial court
allowed the application-if court considers the
evidence to be essential-it can summon such
person even on its own-by allowing the
application u/s 311 Cr.P.C. no prejudiced is
caused to the accused.

Revision dismissed. (E-9)

List of Cases cited:

1. Arjun Panditrao Khotkar Vs Kailash Kushanrao
Gorantyal & ors., reported in (2020) 7 Supreme
Court Cases 1

2. Anvar P.Vs Vs P.K.Basheer, reported in (2014)
10 SCC 473
(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. Heard Sri Ajay Kmar Rai, learned
counsel for the accused-revisionist and Sri
Shiv P.Shukla, learnerd counsel for the
Central Bureau of Investigation, Lucknow.

2. Present Criminal Revision under
section 397 readwith section 401 of the
Code of Criminal Procedure, 1973 has been
filed against the impugned order dated 0205-2022 passed by the Special Judge,
C.B.I. Court No. 6, Lucknow on an
application filed by the C.B.I. under section
311 Cr.P.C. in Criminal Case No. 04 of
2014, Union of India Versus Shyam Sunder
Prasad, arising out of RC006202014A0015
registered under section 7 & 13(2) readwith
6 All. Shyam Sunder Prasad Vs. C.B.I., Lucknow
1131
13(1)(d) of the Prevention of Corruption
Act,1988.

3. The case in question was registered
vide RC No. 006202014A0015 against the
accused-revisionist,
Sri
Shyam
Sunder
Prasasd, the then Branch Manager, Punjab
National Bank, Branch-Dhanghata districtSant Kabir Nagar under section 7 of the
Prevention of Corruption Act, 1988, on 26-042014 on the basis of written complaint made
by Sri Kaleem Ahmad. It was alleged in the
F.I.R. that the complainant, Sri Kaleem
Ahmad was sanctioned the Cash Credit Limit
of Rs. 8 Lakh from the Punjab National Bank,
Dhanghata Branch, district-Sant Kabir Nagar
on 26-03-2014. The complainant was issued
one Cheque Book bearing nos. UKM 065501
to 065520 in respect of this Cash Credit Limit
Loan Account. The complainant had issued
eight cheques from the said cheque book and
out of the these eight cheques, three cheques
issued by him got cleared and three cheques
were bounced/dishonoured. The complainant
therefore, requested the parties to whom the
remaining two cheques had been issued, not to
produce/present them as the cheques issued by
him in respect of the Cash Credit Limit Loan
Account were being bounced/dishonoured.

4. It is alleged that the complainant
enquired from the accused-revisionist about
the reason for the cheques which got
dishourned/bounced.
The
accusedrevisionist replied that the account had been
frozen. It was further alleged that the
accused-revisionist had demanded bribe of
Rs. 80,000/- from the complainant for
defreezing the account. It was also alleged
that the accused-revisionist had demanded
the bribe through cheques to be issued in the
name of other person.

5. The complaint made by the
complainant was verified and a criminal
case was registered against the accusedrevisionist under section 7 of the Prevention
of Corruption Act,1988 on 26-04-2014. It is
further said that during verification of the
complaint,
on
25-04-2014,
when
the
complainant met and requested the accusedrevisionist for reducing the bribe amount, he
agreed to accept the bribe of Rs. 50,000/- by
cheque. This conversation was recorded and
transferred into a blank Compact Disc,
marked as Q-1 and taken into record. The
C.B.I. Team was formed on the instructions
of Head of Branch, CBI, ACB, Lucknow
including
Sri
Diwakar
Pande,
Inspector(Trap Laying Officer) for laying of
trap. The Trap Laying Team completed the
pre trap proceedings and Cheque No. UKM
065514 for a sum of Rs. 50,000/- was drawn
which was to be given as illegal gratification
to the accused-revisionist and it was treated
with phenolphthalein powder to be handed
over to the accused-revisionist during the
trap proceedings. The accused-revisionist
was caught red-handed with tainted bribe
cheque. The conversation between the
accused-revisionist and the complainant was
recorded during the transaction of bribe
cheque and the same was transferred into a
blank Compact Disc, marked as Q-2. The
voice samples of the accused-revisionist
were sent to CFSL, New Delhi for voice
analysis.

6. During course of the investigation,
the C.B.I. noted that the Cash Credit Loan
Account of the complainant was de-frozen a
day before the trap to facilitate the payment
of illegal gratification.

7. The C.B.I. after investigation of the
offence, filed chargesheet for the offences
punishable under sections 7 & 13(2)
readwith section 13(1)(d) of the Prevention
of Corruption Act, 1988 against the
accused-revisionist.
1132 INDIAN LAW REPORTS ALLAHABAD SERIES

8. After framing of the charges
against the accused-revisionist, the first
prosecution witness was examined on 2609-2014 and in so far as many as 11
witnesses in the case have been examined.
An application under section 311 of the
Code of Criminal Procedure, 1973 was
filed on 22-11-2021 to bring on record two
certificates dated 24-09-2021 & 25-092021 under section 65-B of the Indian
Evidence Act, 1872 as well as to recall the
witnesses to prove those certificates. It was
said that the certificates were produced
alongwith the chargesheet, but, same were
not in a proper form and during the trial
proceedings, proper certificates have been
prepared, which need to be produced in
prescribed forms. It was further said that
the application was not an attempt to fill up
the lacuna of the prosecution case. In the
said application, the C.B.I. also relied on
the Judgment of the Hon'ble Supreme
Court in the case of Arjun Panditrao
Khotkar
Versus
Kailash
Kushanrao
Gorantyal and Others, reported in (2020) 7
Supreme Court Cases 1, to say that the
certificates under section 65-B of the
Indian Evidence Act can be produced at
any stage of the trial, if the same was not
produced alongwith electronic record or not
produced in the court with the chargesheet.

9. The accused-revisionist filed his
objections to the said application and the
learned trial court after looking at the
certificates, noted that the certificates of
section 65-B of the Indian Evidence Act in
respect of the Compact Disc marked as SQ1 were issued by Sri Raka Kant Tewari,
Investigating Officer.

10. During verification of the
complaint on 25-04-2021, Compact Disc.
marked as Q-1 and Investigation Copy Q-1
was prepared. This certificate was in
respect of recording of the conversation
between the accused-revisionist and the
complainant.
The
conversation
was
recorded in a Digital Voice Recorder in
presence
of
an
independent
witness
namely, Sri Amir Ali. This recorded
conversion was copied in two empty
compact
Discs
in
the
presence
of
independent witnesses and no tampering
was made in the recording.

11. Sri Diwakar Pandey,Trap Laying
Officer, had issued certificates marked as
Compact Discs marked as Q-2 and S-1 and
during
the
trap
proceedings,
the
investigation copy, S-1 was prepared, in
which
the
conversation
between
the
accused-revisionist and the complainant
was recorded. The certificates had been
issued for recording the said conversation
in the presence of the independent witness
and sealing the same and there was no
tampering in the said recording of the
conversation.

12. Learned Trial Court after taking
note of the provisions of Section 65- B(4)
of the Indian Evidence Act and the
Judgment of of the Hon'ble Supreme Court
in the case of Anvar P.V. Versus
P.K.Basheer, reported in (2014) 10 SCC
473
as
well
as
Arjun
Panditrao
Khotkar(Supra), held that the powers of
section 311 Cr.P.C. are to be used for just
and fair decision in the case. It is held that
the trial is still on and therefore, for a just
and fair decision in the trial, the certificates
issued under section 65-B (4) of the Indian
Evidence Act are to be taken on record.
The trial court allowed the application for
taking on record the certificates issued by
Sri Raka Kant Tiwari and Sri Diwakar
Pandey and they have been summoned by
the
impugned
order
to
prove
the
certificates.
6 All. Shyam Sunder Prasad Vs. C.B.I., Lucknow
1133

13. Sri Ajay Kumar Rai, learned
counsel for the accused-revisionist has
submitted that the C.B.I did not file any
certificate of Section 65-B of the Indian
Evidence
Act,
1872
alongwith
the
chargehseet in respect of the Compact
Discs. marked as Q-1 and Q-2 in the
manner as prescribed under law. During the
examination of the prosecution witnesses,
the Compact Discs. were exhibited without
having the certificates as contemplated
under section 65-B of the Indian Evidence
Act.

14. It is submitted that now the
certificates under section 65-B of the
Indian Evidence Act have been sought to
be produced at the belated stage when the
prosecution witnesses have already been
examined and only the Investigating
Officer remains to be examined. It is
submitted that at this belated stage, there
was no occasion for the trial court to allow
the application of the prosecution to
produce the certificates under section 65-B
of the Indian Evidence Act and recalling
the witnesses, who are the C.B.I. Officers
to prove them.

15. It is further submitted that the
C.B.I. has wrongly stated that alongwith
chargesheet, certificates under section 65-B
of the Indian Evidence Act were filed,
however, they were not in correct form and
therefore, fresh certificates in correct form
were to be filed. He has further submitted
that as a matter of fact no certificate under
section 65(B) of the Indian Evidence Act
was filed with the Compact Discs marked
as Q-1 & Q-2 initially with the chargehseet.
He has further submitted that no reason is
coming forth in the application for issuing
the certificates under section 65-B of the
Indian Evidence Act so belatedly inasmuch
as the chargesheet was filed in the year
2014 itself, but, the certificates are of the
years 2021. When the certificates are being
issued by the C.B.I. Officers itself, at this
belated stage accepting the certificates and
allowing the application to recall the
witnesses is highly prejudicial to the trial of
the
accused-revisionist.
He
therefore,
submits that the C.B.I. is trying to fill up
the lacuna inasmuch as in the absence of
the certificates issued under section 65-B of
the Indian Evidence Act are mandatory for
proving
the
conversation
allegedly
recorded in the Compact Discs and in the
absence of the certificates, the said
Compact Discs would not have been
evidence in law and therefore, to that
extent, the accused-revisionist would be
prejudiced.

16. On the other hand, Sri Shiv
P.Shukla, learned counsel representing the
C.B.I. has submitted that the certificates
issued under section 65-B of the Indian
Evidence Act can be produced at any stage
of the trial in respect of the electronic
evidence
being
relied
on
by
the
prosecution. He has further submitted that
the trial is still on and the witnesses are
being examined and therefore, producing
the certificates under section 65-B of the
Indian Evidence Act in respect of the two
Compact Discs would not create any
prejudice to the accused-revisionist in any
manner
rather
the
trial
court
after
considering the provisions of the Indian
Evidence Act and the law laid down by the
Hon'ble Supreme Court as mentioned
above, allowed the application under
section 311 Cr.P.C. for a just and proper
decision in the case. He further submits that
the present revision is without merits and is
liable to be dismissed.

17. I have considered the submissions
advanced on behalf of learned counsel for
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused-revisionist as well as learned
counsel for the C.B.I.

18. By amending the section 65 of
the Act of 2000 w.e.f. 17th October,
2000, a special provision as to evidence
led
into
electronic
record
and
admissibility of the electronic record
have been incorporated in section 65-A &
65-B of the Indian Evidence Act. The
contents of the electronic record may be
proved as per the provisions of section
65-B of the Indian Evidence Act. The
subject matter of sections 65-A & 65-B
of the Indian Evidence Act is the proof of
information
contained
in
electronic
records. These are the special provisions
relating to evidence led in electronic
records. For convenience, Section 65-A
& Section 65-B of the Indian Evidence
Act, read as under :-

"[65A. Special provisions as to
evidence relating to electronic record.-
The contents of electronic records may be
proved in accordance with the provisions
of section 65B.

[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 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 or
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:?

(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 sub-section (2) was regularly
performed by computers, whether?
6 All. Shyam Sunder Prasad Vs. C.B.I., Lucknow
1135

(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 subsection it shall be sufficient for a matter to be
stated to the best of the knowledge and belief
of the person stating it.

(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.]"

19. Section 65-B (i) of the Indian
Evidence Act begins with an non absenting
clause and it provides that any information
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
that is contained in electronic record
printed on a paper, stored, recorded or
copied in optical or magnetic media
produced by a computer shall be deemed to
be a document, 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.

20. Sub. Section (2) of Section 65-B
of the Indian Evidence Act refers to the
condition that must be satisfied in respect
of the computer output and states that the
test of being included in conditions are
provided in Section 65-B (2) (a) to Section
65-B (2) (d) which states that computer be
regularly used to store or process of
information for the purposes of any
activities regularly carried on over the
period
in
question.
The
conditions
mentioned in sub. section 2(a) to sub.
section 2(d) must be satisfied cumulatively.
Sub. Section 4 of Section 65-B provides
that a certificate is to be produced that
identifies the electronic record containing
the statement and describing the manner in
which it was produced or gives particulars
of any device involved in the production of
that electronic record to show that the
electronic record was produced by a
computer, by either a person occupying a
responsible official position in relation to
the operation of the relevant device; or
person who is in the management of
relevant activities-whichever is appropriate.

21. The Hon'ble Supreme Court in the
case of Arjun Panditrao Khotkar(Supra)
held that for admissibility of an electronic
record/document,
section
65-B(4)
is
mandatory for recording it in evidence.
When the electronic record is produced in
evidence without proper certificate, trial
court must summon the person/persons
referred in Section 65-B (4) of the Indian
Evidence Act, and require that such
certificate be given by such person/persons.
It has further held that in criminal trials, the
accused must be supplied all documents
that the prosecution seeks to rely upon
before commencement of the trial under
section 207 Cr.P.C. to enable the accused
to
prepare
for
the
trial
before
it
commences. However, that does not mean
that the trial court cannot exercise powers
under section 311 Cr.P.C. in permitting the
evidence to be filed at a later stage. The
only caveat is that the same should not
result in serious or irreversible prejudice to
the
accused-revisionist.
The
Hon'ble
Supreme Court in para no. 56 of the said
Judgment held that in appropriate cases, the
trial court depending on the facts and
circumstances of the case may exercise its
discretion under section 91 or section 311
Cr.P.C. or Section 165 of the Indian
Evidence Act as the case may be and can
allow the prosecution to produce the
certificates under section 65-B of the
Indian Evidence Act at later point of time
and same would also be the case in respect
of an accused who desires to produce the
requisite certificates as part of his defence.
Para no. 56 of the said Judgment, which is
relevant, is extracted hereinunder :-

"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 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
6 All. Vijay Mishra Vs. State of U.P. & Anr.
1137
by the prosecution under Sections 91 or
311 of the 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 defence, this again will
depend upon the justice of the case -
discretion to be exercised by the Court in
accordance with law."

22. Section 311 Cr.P.C. empowers the
court that if the court considers the
evidence of witnesses to be essential for a
just and fair decision of the case, it can
summon such a person not only on the
motion of either prosecution or of the
defence case, but, also it can do so on its
own motion. The court has power to recall
any witness or witnesses already examined
or to summon any witness even if the
evidence in both sides is closed so long as
the court retains seisin of the criminal
proceedings.

23. In the present case, the two
Compact Discs have already been supplied
to
the
accused-revisionist
and
only
certificates under section 65-B of the
Indian Evidence Act have been allowed to
be produced to prove and by allowing the
application under section 311 Cr.P.C., this
court does not find that the accusedrevisionist is prejudiced in any manner by
producing the certificates in respect of the
electronic record/evidence, which are being
relied upon by the prosecution, which have
already been supplied to the accusedrevisionist at the stage of complying with
the provisions of Section 207 Cr.P.C. The
trial court has exercised its discretion as
vested in it under section 311 Cr.P.C. for
just and valid reasons for rendering a just
and proper decision in the trial and
therefore, this court does not find that there
is any error of law or jurisdiction which has
been committed by the trial court by
allowing the application of the C.B.I. under
section 311 Cr.P.C. by the impugned order.

24. Thus, this court, does not find that
there is any scope for interference with the
impugned order and the present revision is
dismissed.
----------
(2022)06ILR A1137
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.06.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 584 of 2022

Vijay Mishra ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ram Prakash Singh, Sri Vivek Kumar

Counsel for the Opposite Parties:
Govt. Advocate

Civil Law - Code of Civil Procedure, 1908
- Section 228 (1) (a) -Indian Penal Code,
1860 - Section 308 IPC-for transferring the
case to Magistrate-rejected-Revisionist claim
that no injury was life threatening-section 308
IPC to be expunged and case be transferred
to
the
Magistrate-Medical
examination-all
injuries on vital part-prima facie the act was
with intention or knowledge of causing deathif he fails in his attempt he still guilty of
committing an offence punishable u/s 308
IPC-the case cannot be transferred to the
Magistrate.

Revision dismissed. (E-9)