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Cert. u/s 65B Can be filed at any Stage Of Trial

High Court of Rajasthan Jaipur Bench

Paras Jain & Others
v/s
State of Rajasthan

S.B. Criminal Revision Petition Nos. 131 of 2015, 1329, 1467, 1353, 1218, 1327, 1352, 1351 & 1328 of 2014
Decided On, 04 July 2015

By, THE HONOURABLE MR. JUSTICE PRASHANT KUMAR AGARWAL
For the Petitioner: Pankaj Gupta, Devendra Ranawat, Shrikant Lakhotiya V.R. Bajwa, Laxmikant Mahendra Gaur, R.K. Jain and Vivek Goyal, Harendra Singh, S.S. Hora, Advocates.
For the State: Anurag Sharma, Additional Advocate General, Jagdish Nagar, Dhruv Rathore, Advocates.

Judgment Text
Prashant Kumar Agarwal, J.

1. Some of the accused are before this Court by way of these criminal revision petitions under Section 397 read with Section 401 Cr.P.C. to challenge the order dated 22.9.2014 passed by the Special Judge (Prevention of Corruption Cases) No.1, Jaipur in Criminal Case No.13/2014 whereby the learned trial Court ordered to frame charge against the petitioners and co-accused against whom charge-sheet was filed. It is to be noted that each of the accused-petitioner has been discharged for some of the offences for which charge-sheet was filed against them. As each of the petition has been filed against the same order and most of the grounds of challenge are common, with the consent of learned counsel for the parties, all the petitions were heard together and are being disposed of by this common order.

2. Brief relevant facts for the disposal of these petitions are that the Anti Corruption Bureau, Jaipur through some secret and reliable source received information to the effect that accused-petitioner-Shri Dinesh Singhal with the help of and in criminal conspiracy with some public servants and other persons is involved in the manufacturing and sale of “Fake Deshi Ghee” at a very large scale in the brand names of several reputed companies and he thereby playing with the health of public at large. On the basis of such information, preliminary inquiry was undertaken by the agency and for the verification of the same under the authority of competent person mobile phones of Shri Dinesh Singhal were put on surveillance and as a result thereof the source information was found to be true. In the aforesaid back-drop FIR No.526/2013 was registered for various offences against as many as sixty two persons and after due investigation charge-sheet came to be filed against twenty one persons including present petitions. It is said that against rest of the persons investigation has been kept pending under Section 173 (8) Cr.P.C. Learned trial Court after hearing both the parties, vide impugned order directed to frame charge against all the accused against whom charge-sheet was filed for various offences. Feeling aggrieved, some of them are before this Court by way of these revision petitions.

3. Before considering case of each of the accused-petitioner individually, it would be appropriate to consider the following preliminary common objections raised on behalf of the petitioners:-

(i) Whether transcriptions of conversations and for that matter CDs of the same filed along with the charge-sheet are not admissible in evidence even at this stage of the proceedings as certificate as required under Section 65-B of the Evidence Act was not obtained at the time of procurement of said CDs from the concerned service provider and it was not produced along with charge-sheet in the prescribed form and such certificate cannot be filed subsequently.

(ii) Whether all the offences or some of them for which charge-sheet has been filed or for which charges have been ordered to be framed are covered under the provisions of the Food Safety and Standards Act, 2006 and being a special statute, it includes all penal provisions and, therefore, ACD or local police was not competent to register FIR and investigate the matter and as a consequence thereof the charge-sheet and all subsequent proceedings arising thereunder are null and void being without jurisdiction.

4. In support of the first preliminary common ground, it was jointly submitted by the learned counsel for the petitioners that apart from other evidence copy of the transcriptions of mobile phone conversations allegedly taken place between some of the accused from time to time and CDs thereof were also filed along with the charge-sheet, but certificate as required under Section 65-B of the Evidence Act in the prescribed form issued by a competent authority was not filed along with the charge-sheet and it has been produced subsequently before the trial Court in proper form only during the course of hearing of these petitions and as mandatory requirement of Section 65-B of the Evidence Act has not been fulfilled, the transcriptions of the alleged conversations as well as CDs thereof are not admissible in evidence and the same cannot be considered even at the stage of framing of charge as it is well settled legal position that only legally admissible evidence can be considered by the Court to frame charge for an offence against an accused. It was also submitted that as per Section 65-B of the Evidence Act requisite certificate should be obtained at the time of procurement of the electronic record like CDs and it should accompany with it and filed along with charge-sheet and it cannot be obtained and produced before the Court subsequently. It was submitted that in the absence of a contemporaneous certificate issued by the concerned authority under Section 65-B, the CD’s are of no value being totally inadmissible.

5. In support of their submissions, learned counsel for the petitioners relied upon the case ofAnwar P.V. v. P.K. Bashir & others reported in (2014) 10 SCC 473and also orderdated 20.11.2014 passed by a Single Bench of Hon’ble Delhi High Court in Criminal Misc. Case No. 2455/2012 and Criminal Misc. Application No.8318/2004 titled Ankur Chawla v. Central Bureau of Investigation and others.

6. On the other hand, learned Additional Advocate General submitted that Section 65-B of the Evidence Act is applicable at the stage when an electronic record is produced as secondary evidence during trial to prove facts contained therein and it can be held inadmissible in evidence only at that stage if it is found by the Court that the same has been produced before the Court without the certificate required under Section 65-B of the Evidence. Section 65-B does not envisage the stage at which such certificate is required to be filed before the Court and it deals with the issue of admissibility of secondary evidence in the form of electronic record and even Hon’ble Supreme Court in the aforesaid case has not held that if such certificate is not accompany the electronic record and is not produced along with the charge-sheet, it can not in any circumstances be produced subsequently. It was further submitted that Hon’ble Single Bench of Delhi High Court has not considered the issue properly.

7. I have considered the submissions made on behalf of the respective parties and perused the material made available on record as well as the relevant legal provisions and the case law.

8. It is not in dispute that along with charge-sheet copy of transcriptions of mobile conversations allegedly taken place between some of the accused and CDs thereof were filed and certificate as required under Section 65-B of the Evidence Act issued by a competent officer in the prescribed form was not filed along with the charge-sheet and it was filed subsequently during the course of hearing of these petitions. In the facts and circumstances of the case and in the light of the provisions of Section 65-B of the Evidence Act and the view expressed by the Hon’ble Supreme Court, it is to be seen whether the transcriptions and CDs filed along with the charge-sheet cannot be considered even at the stage of framing of charge.

9. Section 65-A of the Evidence Act reads as follows:-

65A. Special provisions as to evidence relating to electronic record:-The contents of electronic records may be provided 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 of 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 –

(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 sub-section (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.

(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.

10. Hon’ble Apex Court in the case of Anwar P.V. v. P.K. Bashir & others(supra) has held that:

“Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals wit

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