2019 (5) TMI 1986 - SC - Indian Laws

Rejection of application for discharge Under Section 239 of the Code of Criminal Procedure - Requirement of production of a certificate for leading secondary evidence u/s 65 B of IEA - HELD THAT - Section 65B(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 2014 (9) TMI 1007 - SUPREME COURT holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. The same view has been reiterated by a two judge Bench of this Court in Union of India and Ors. v. CDR Ravindra V. Desai 2018 (4) TMI 1939 - SUPREME COURT . The Court emphasised that non-production of a certificate Under Section 65B on an earlier occasion is a curable defect. 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. The investigating officer handing over a spy camera to the complainant on 15 November 2012 would indicate that the investigation had commenced even before an FIR was lodged and registered on 16 November 2012 or not - HELD THAT - In the present case on 15 November 2016 the complainant is alleged to have met the Respondent. During the course of the meeting a conversation was recorded on a spy camera. Prior thereto the investigating officer had handed over the spy camera to the complainant. This stage does not represent the commencement of the investigation. At that stage the purpose was to ascertain in the course of a preliminary inquiry whether the information which was furnished by the complainant would form the basis of lodging a first information report. In other words the purpose of the exercise which was carried out on 15 November 2012 was a preliminary enquiry to ascertain whether the information reveals a cognizable offence. The High Court has erred in coming to the conclusion that in the absence of a certificate Under Section 65B when the charge sheet was submitted the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court has evidently lost sight of the other material on which the prosecution sought to place reliance. Finally no investigation as such commenced before the lodging of the first information report. The investigating officer had taken recourse to a preliminary inquiry. Appeal allowed.

Summary

Issues Involved:
1. Admissibility of electronic evidence without a certificate under Section 65B of the Evidence Act.
2. Commencement of investigation before the registration of an FIR.
3. Parameters for considering an application for discharge under Section 239 of the Code of Criminal Procedure.

Detailed Analysis:

1. Admissibility of Electronic Evidence Without a Certificate Under Section 65B of the Evidence Act:

The High Court quashed the proceedings against the Respondent based on the inadmissibility of secondary electronic evidence due to the absence of a certificate under Section 65B of the Evidence Act. The court held that without this certificate, the electronic record from the spy camera was inadmissible. The Supreme Court clarified that the necessity for such a certificate arises when the electronic record is sought to be produced in evidence at the trial, not at the stage of the charge-sheet filing. The Court cited the precedent set in Anvar P.V. v. P.K. Basheer, emphasizing that the certificate must accompany the electronic record when it is produced in evidence. The defect of non-production of a certificate is curable at the stage of marking the document, as highlighted in Union of India v. CDR Ravindra V. Desai and Sonu alias Amar v. State of Haryana.

2. Commencement of Investigation Before the Registration of an FIR:

The Respondent argued that the investigation had commenced before the FIR was registered, which is inconsistent with the decision in Lalita Kumari v. Government of Uttar Pradesh. The Supreme Court noted that on 15 November 2012, the complainant met the Respondent, and a conversation was recorded on a spy camera handed over by the investigating officer. This act was part of a preliminary inquiry to ascertain whether the information revealed a cognizable offence, not the commencement of the investigation. The Court referenced P. Sirajuddin v. State of Madras, which emphasized the necessity of a preliminary inquiry before lodging an FIR in corruption cases. The Constitution Bench in Lalita Kumari recognized that a preliminary inquiry might be warranted in certain cases, including corruption cases, to ascertain if a cognizable offence is made out.

3. Parameters for Considering an Application for Discharge Under Section 239 of the Code of Criminal Procedure:

The Supreme Court reiterated that at the stage of considering an application for discharge, the court must assume the material brought by the prosecution is true and evaluate whether it discloses the ingredients necessary to constitute the offence. The High Court had erred in dismissing the prosecution's case on the basis of the absence of a Section 65B certificate and the assertion that other evidence was unconvincing. The Supreme Court emphasized that the trial court should not conduct a mini-trial at the discharge stage and should only determine if there is ground for presuming the offence has been committed. The Court referenced State of Tamil Nadu v. N. Suresh Rajan, which stated that the probative value of the materials should not be deeply examined at this stage.

Conclusion:

The Supreme Court allowed the appeal, set aside the High Court's judgment, and maintained the trial judge's order dismissing the discharge application. The Court underscored the correct application of Section 65B of the Evidence Act, the validity of preliminary inquiries in corruption cases, and the proper approach to discharge applications under Section 239 of the Code of Criminal Procedure.