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TMI Blog2019 (5) TMI 1986X X X X Extracts X X X X X X X X Extracts X X X X ..... BDA for denotification of the lands. 4. The case of the prosecution is that on 6 November 2012, the complainant attempted to meet the Respondent (accused No. 1) by whom the file was to be placed before the Denotification Committee. It is alleged that though the complainant was not allowed to meet the Respondent, he met his driver through whom he got to know that such cases were being 'mediated' by the second accused, an advocate purporting to act as the agent of the Respondent. A complaint was lodged with the Lokayukta Police on 8 November 2012 apprehending that a bribe would be asked for by the second accused. The police handed over a spy camera together with the instructions to be followed. It is alleged that a meeting of the second Accused was arranged with a representative of the complainant. On 12 and 13 November 2012, a meeting took place with the second Accused who is stated to have informed the representatives of the complainant of the amount which will be charged for the settlement of the deal. The prosecution alleges that on 15 November 2012 the complainant met the Respondent at about 7.30 pm near the BDA office. The conversation between the complainant and the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent as being instrumental in the episode. On this finding the proceedings have been quashed. 10. Assailing the correctness of the judgment of the High Court, Mr. Joseph Aristotle S., learned Counsel appearing for the Appellant, submits that (i) the High Court was manifestly in error in holding that a certificate Under Section 65B was warranted at this stage; (ii) a certificate Under Section 65B would be required to be produced at the stage when electronic evidence is produced in the course of evidence at the trial and hence the stage at which the High Court sought to apply the provision was premature; (iii) the prosecution is relying, apart from electronic evidence pertaining to the spy camera, on other material which prima facie shows the involvement of the first and the second accused; (iv) without considering the nature of that evidence, the High Court prevented the prosecution from placing reliance on such material on the basis of a bald averment that it did not appear to be convincing; (v) in handing over the spy camera to the complainant and the process which followed by recording what transpired at the meeting with the Respondent on 15 November 2012, the investigating of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings is its hypothesis that Section 65B, which requires the production of a certificate for leading secondary evidence of an electronic record mandate the production of such a certificate at this stage in the absence of which, the case of the prosecution is liable to fail. Section 65B reads as follows: Section 65(B). 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 of any contents of the original or any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in the Sub-section (1) in respect to the computer output shall be following, namely: (a) the computer output containing the information was produced by computer during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned 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. (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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. (Emphasis supplied) 16. Having regard to the above principle of law, 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. 17. Apart from the above feature of the case, on which it is abundantly clear that the High Court has erred, we must also notice the submission of the Appellants that independent of the electronic record, the prosecution is relying on other material. The existence of such material has been adverted to in the charge-sheet. Details of the documents on which the prosecution sought to place reliance find specific mention in the charge-sheet particularly at items 15, 25 and 28 to 31. The High Court rejected this submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for someone in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charged sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to-find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report. 20. P. Sirajuddin (supra) emphasized the requirement of a preliminary inquiry, where a public servant is alleged to have committed an act of dishonesty involving a serious misdemeanour. The purpose of a preliminary inquiry is to ascertain whether a cognizable offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing extract: Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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