2023 (11) TMI 1211 - SC - Indian Laws

Seeking permission to prosecution to produce the report and the certificate under Section 65B of the Indian Evidence Act, 1872 - delay of six years in producing the certificate or not - HELD THAT - It cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the original electronic devices were already produced and marked MOs, there was no need to produce the certificate under Section 65-B of the Act. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the accused against the production of CFSL report prepared on the basis of the electronic devices seized. Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Cr.P.C. is there. The object of the Code is to arrive at truth. However, the power under Section 311 of the Cr.P.C. can be exercised to subserve the cause of justice and public interest - In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused. The orders passed by the courts below are set aside - Appeal allowed.

Summary

Issues Involved:
1. Admissibility of Electronic Evidence without a Certificate under Section 65B of the Indian Evidence Act, 1872.
2. Delay in Producing the Certificate under Section 65B.
3. Application under Section 311 of the Cr.P.C. to Recall Witness and Produce Certificate.

Summary:

1. Admissibility of Electronic Evidence without a Certificate under Section 65B:
The Supreme Court addressed the issue of whether electronic evidence can be admitted without a certificate under Section 65B of the Indian Evidence Act, 1872. The Court referenced its previous rulings in *Anvar P.V. v. P.K. Basheer* and *Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal*, which clarified that a certificate under Section 65B is not required if the electronic record is used as primary evidence. The Court reiterated that the original electronic devices, being primary evidence, do not necessitate a certificate under Section 65B for admissibility.

2. Delay in Producing the Certificate under Section 65B:
The Court examined the timeline of events and concluded that there was no undue delay in producing the certificate under Section 65B. The prosecution had submitted the CFSL report based on electronic devices on 16.10.2012, and upon objection by the defense, a certificate was obtained and sought to be produced on 27.04.2017. The Court emphasized that the trial was still pending, and the application to recall the witness and produce the certificate was filed promptly after the objection was raised.

3. Application under Section 311 of the Cr.P.C. to Recall Witness and Produce Certificate:
The Supreme Court allowed the application under Section 311 of the Cr.P.C. to recall M. Krishna (PW-189) and produce the certificate under Section 65B. The Court highlighted that the purpose of Section 311 is to ensure a fair trial and to arrive at the truth. It noted that permitting the prosecution to produce the certificate at this stage would not cause irreversible prejudice to the accused, who would still have the opportunity to rebut the evidence. The Court underscored that the objective of a fair trial is to ensure that no guilty person goes unpunished and no innocent person is wrongfully convicted.

Conclusion:
The Supreme Court set aside the orders of the lower courts, allowing the prosecution's application under Section 311 of the Cr.P.C. to recall the witness and produce the certificate under Section 65B. The Trial Court was directed to proceed with the matter further, ensuring that the evidence is duly considered in accordance with the law.