# Vivek Kumar v. State of U.P. & Anr - **Citation:** (2023) 4 ILRA 780 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-02-03 - **Case number:** Application U/S 482. No. 27651 of 2022 - **Bench:** Umesh Chandra Sharma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-v-state-of-u-p-anr-50020 - **Pages:** 4 ## Headnote Indian Evidence Act - Section 65 BApplicant moved an Application for submission of pen-drive and C.D. to confront St.ment of victim-rejected-as no certificate u/s 65B of the Evidence Act is issued-if proposed document is primary evidence -no certificate required for admission -no conclusion by the Trial Court-impugned order bad. Application allowed. (E-9) List of Cases cited: ## Text 780 INDIAN LAW REPORTS ALLAHABAD SERIES Revision before the Sessions Judge stating in para 6 of a passing reference of the pendency of a 482 Cr.P.C. petition before this Court and then after dismissal of his revision filed another 482 Cr.P.C. petition although challenging the order of the Sessions Judge but with a further prayer to quash the proceeding of the trial court. 24. In substance the prayers made in the two 482 Cr.P.C. petitions and the Criminal Revision before the Sessions Judge were for termination of the trial court proceedings against him with whatsoever prayer it may have been filed (i.e. quashing the charge-sheet dated 23.06.2019, quashing of summoning order dated 27.11.2020, setting aside the order dated 27.11.2020, quashing of the order dated 15.04.2022 and quashing of the entire proceedings). The filing of the Criminal Revision before the Sessions Judge was not with full and complete disclosure of relevant and material facts of the matter. The details of the 482 Cr.P.C., the order of the Apex Court, the filing of application for withdrawl with a prayer to grant liberty for filing a better petition and its pendency before this Court were not at all disclosed in the Revision and has been supressed. It was an act of concealment as held by the Apex Court in the case of Bhaskar Laxman Jadhav (supra). The conduct of the applicant in not fair in pursuing his matters in Courts. 25. This Court thus comes to the conclusion that the applicant had not been fair in approaching courts and has not approached the Courts with clean hands. 26. The present applications u/s 482 Cr.P.C. stands rejected. ---------- (2023) 4 ILRA 780 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 03.02.2023 BEFORE THE HON'BLE UMESH CHANDRA SHARMA, J. Application U/S 482. No. 27651 of 2022 Vivek Kumar ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Krishna Gopal Counsel for the Opposite Parties: G.A., Sri Niklank Kumar Jain Indian Evidence Act - Section 65 BApplicant moved an Application for submission of pen-drive and C.D. to confront St.ment of victim-rejected-as no certificate u/s 65B of the Evidence Act is issued-if proposed document is primary evidence -no certificate required for admission -no conclusion by the Trial Court-impugned order bad. Application allowed. (E-9) List of Cases cited: 1. Vikram Singh @ Vikky Wali & anr. Vs St. of Punjab & anr., A.I.R. 2017 (Supreme Court) 3227 2. Anwar P.V. Vs P.K. Busheer, (2014) 10 S.C.C 473 (three Judge Bench) 3. St. of U.P. Vs Ajay Kumar Sharma, 2016 (92) A.C.C 981 (SC) 4. Mukesh Vs St. (N.C.T) of Delhi & ors., A.I.R 2017 (Supreme Court) 2161 (three judge bench) 5. R.M. Malkani Vs St. of Mah. A.I.R 1973, Supreme Court 157 4 All. Vivek Kumar Vs. State of U.P. & Anr. 781 6. Ram Singh & ors. Vs Col. Ram Singh 1985 (Supp.) S.C.C 616 7. Arjun Pandit Rao Kholkar Vs Kailash Kushan Rao Gorantyal & ors., A.I.R 2020 (S.C) 4908 (Delivered by Hon'ble Umesh Chandra Sharma, J.) 1. Heard Sri Krishna Gopal, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A for the State and perused the record. 2. The learned counsel for opposite party no. 2 neither appeared nor has the learned A.G.A filed any counter affidavit, hence heard the argument and perused the record. 3. The applicant has filed the present Application U/s 482 Cr.P.C to quash the order dated 02.08.2022 passed by A.S.J / Special Judge (Rape & POCSO Act), Etah in Special Trial No 552 of 2021 ? State vs. Vivek Kumar arising out of Case Crime No. 35 of 2020 under Sections 363, 366 I.P.C and POCSO Act, 2012 Act, Police Station Pilua, District Etah. 4. In brief, facts of the case are that opposite party no. 2 lodged an F.I.R which was registered as Case Crime No. 35 of 2020 under Sections 363, 366, 368, 506 I.P.C and POCSO Act, in Police Station Pilua, District Etah. After investigation the I.O. submitted charge-sheet against the applicant and other co-accused persons under Sections 363, 366, 368, 506, 376 I.P.C and POCSO Act. Statement of the victim has been recorded under Section 164 Cr.P.C, which is annexed as annexure no. 3 to the affidavit. In this statement the victim has specifically stated that she had gone with the applicant with her own sweet will and has solemnized the marriage with him. 5. The learned court has taken cognizance and thereafter the trial proceeded. During the trial the victim has been examined as P.W. 2 and her statement is annexed as Annexure No. 4 to the affidavit. During the cross-examination the applicant's counsel moved an application for the submission of pen-drive and C.D to confront the statement of the victim and also to play it in the court. The application is annexed as Annexure No. 5 to the affidavit. The trial court vide its order dated 02nd August, 2022 rejected the application on the ground that electronic evidences are admissible only when a certificate under Section 65-B of the Evidence Act has been issued and in the present case no certificate is being filed therefore the same cannot be taken on record. A copy of the impugned order is annexed as Annexure No. 6 to the affidavit. The court below has rejected the application without applying its judicial mind, which is wholly illegal and arbitrary. The trial court may examine the electronic record as to whether it has substance or not, but the court rejected the same without applying judicial mind in a routine manner. 6. As per Section 138 of the Evidence Act, the examination-in-chief of the witnesses must relate to the relevant fact, but the cross-examination need not be confined to the fact to which the witness testifies in his examination-in-chief, therefore, the order dated 02.08.2022 passed by A.S.J / Special Judge (Rape & POCSO Act) ? II, Etah in Special Trial No. 552 of 2021 ? State Vs. Vivek Kumar be set aside. 7. From the perusal of the impugned order dated 02.08.2022 it transpires that the trial court did not accept the Pen-drive and C.D. like electronic documents on the ground that until a certificate under Section 782 INDIAN LAW REPORTS ALLAHABAD SERIES 65-B of the Indian Evidence Act is not produced, the proposed pen-drive and C.D. cannot be taken on record. 8. From perusal of the record it is very much clear that the learned trial court without coming to the conclusion as to whether the proposed C.D and Pen-drive is primary evidence or secondary evidence required the certificate before admitting the said electronic documents. 9. This Court is of the view that first of all it was duty of the learned trial court to ascertain as to whether the proposed document is primary document or the secondary document. If the proposed documents would be primary evidence, there is no need to seek certificate under Section 65-B for its admission. 10. In Vikram Singh @ Vikky Wali and another Vs. State of Punjab and another, A.I.R. 2017 (Supreme Court) 3227, it has been held that tape-recorded conversation is not secondary evidence and for that the desired certificate is not required under Section 65-B and there is no need to comply with Section 65-B when an electronic evidence is produced in the court as primary evidence. 11. Further, the trial court was also of the opinion that since the C.D pertains to such conversation, which has been downloaded through a licensed soft-ware, there is not even an iota of doubt about the genuineness of the conversation present in the C.D. 12. Certainly in Anwar P.V. Vs. P.K. Busheer, (2014) 10 S.C.C 473 (three Judge Bench) it has been ruled that under Section 65-B (4) certificate is necessary for admissibility of the secondary evidence. Section 65-B (4) of the Indian Evidence Act, 1872, is as under: "(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." 13. In this regard the judicial precedents in State of U.P. Vs. Ajay Kumar Sharma, 2016 (92) A.C.C 981 (SC) (para-14) and Mukesh Vs. State (N.C.T) of Delhi and others, A.I.R 2017 (Supreme Court) 2161 (three judge bench) are also relevant. 14. Under Section 3 (2) of the Evidence Act, electronic records or the 4 All. Uday Yadav Vs. State of U.P. & Anr. 783 documents are relevant and admissible under Sections 17, 22-A, 34, 35, 39, 45-A, 47-A, 59, 65-A, 65-B, 67-A, 73-A, 81-A, 85-A, 85-B, 85-C, 88, 88-A, 90-A, 131 of the Evidence Act. 15. In R.M. Malkani Vs. State of Maharashtra A.I.R 1973, Supreme Court 157, in Ram Singh and others Vs. Col. Ram Singh 1985 (Supp.) S.C.C 616 and the State (N.C.T) of Delhi (Supra) it has been held that relevant conversation recorded in the tap recorder is admissible in evidence. 16. In Vikram Singh (Supra), original tape record was considered as primary evidence and it was held that therefore the certificate under Section 65-B of the Indian Evidence Act was not required for its admissibility. 17. In Arjun Pandit Rao Kholkar Vs. Kailash Kushan Rao Gorantyal and others, A.I.R 2020 (S.C) 4908 (Three Judges Bench), it has been held that if the electronic document is secondary evidence, the certificate required under Section 65-B (4) is condition precedence to the admissibility of the evidence. The requisite certificate is unnecessary, if the original document itself is produced. This can be done by the owner of the laptop, computer, a computer tablet or even a mobile phone by stepping into the witness box and proving that the concerned evidence on which the original information is first stored, is owned and /or operated by him. 18. In cases, where the "computer", as defined "happens to be a part of the computer system" or "computer network" and it becomes impossible to physically bring such network or system to the court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B (1), together with the requisite certificate under Section 65-B (4). 19. In this case it appears that the learned trial court has rejected the application without being confirmed as to whether the proposed electronic document is primary evidence or the secondary evidence. 20. Therefore, this Court is of the considered view that the impugned order is bad in law and it requires reconsideration by the concerned court. O R D E R (21) The Application U/s 482 Cr.P.C is allowed. (22) The impugned order dated 02.08.2022 is hereby set aside. (23) The learned Trial Court is directed to decide the application of the accused-applicant afresh in view of the judgment passed by this Court after affording sufficient opportunity. ---------- (2023) 4 ILRA 783 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 14.03.2023 BEFORE THE HON'BLE SHIV SHANKER PRASAD, J. Application U/S 482. No. 28317 of 2022 Uday Yadav ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Sri Abhishek Kumar Yadav