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2023 SCC OnLine SC 1447
In the Supreme Court of India
(BEFORE VIKRAM NATH AND RAJESH BINDAL, JJ.)
State of Karnataka … Appellant(s);
Versus
T. Naseer alias Nasir alias Thandiantavida Naseer
alias Umarhazi alias Hazi and Others …
Respondent(s).
Criminal Appeal No……….. of 2023 (Special Leave Petition (Crl.) No.
6548 of 2022)
Decided on November 6, 2023
Advocates who appeared in this case :
For Petitioner(s) Mr. Aman Panwar, AAG
Mr. D. L. Chidananda, AOR
For Respondent(s) Mr. Balaji Srinivasan, AOR
Mr. Radha Shyam Jena, AOR
The Judgment of the Court was delivered by
RAJESH BINDAL, J.:— Leave granted.
2. Vide order1 passed by the High Court2 in Criminal Petition No.
2585 of 2019 filed by the appellant-State, an order dated 18.01.2018
3
passed by the Trial Court was upheld. Vide the aforesaid order an
4
applications filed by the prosecution under Section 311 of the Cr.
5
P.C. , seeking recall of M. Krishna (PW-189) and permit the prosecution
to produce the report and the certificate under Section 65B of the Act6
was rejected.
3. Genesis of the trial is that in a serial bomb blasts which took place
in Bangalore on 25.07.2008, one woman lost her life whereas several
7
persons were injured. Several FIRs were registered at Madivala ,
Koramangala8, Byatarayanapura9, Kengeri10, Ashokanagar11,
12 13
Sampangirama and Adugodi Police Stations for the offence
punishable under Sections 120B, 121, 121A, 123, 153A, 302, 307, 326,
337, 435, 506 & 201 of the IPC14 and Sections 3 to 6 of the Explosive
Substances Act, 1908, Sections 3 and 4 of the Prevention of
Destruction and Loss of Property Act, 1981, Sections 3 and 4 of the
Prevention of Damage to Public Property Act, 1984 and Sections 10 and
13 of the Unlawful Activities (Prevention) Act, 1967. During the course
of investigation certain electronic devices such as one Laptop, one
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external Hard Disc, 3 Pen Drives, 5 floppies, 13 CDs, 6 SIM cards, 3
mobile phones, one memory card and 2 digital cameras etc. were
seized at the instance of accused no. 3 i.e., Sarafaraz Nawaz@ Seju
@Hakeem. The original electronic devices were submitted before the
Trial Court along with the additional chargesheet dated 09.06.2010.
The Trial Court vide order dated 07.04.2017 ordered that the CFSL
Report dated 29.11.2010 with reference to the electronic devices was
inadmissible in evidence in the absence of a certificate under Section
65-B of the Act. Though, according to the prosecution, the original
devices being already on record (as a primary evidence), there was no
requirement of a certificate under Section 65-B of the Act. Still, as a
matter of abundant caution, a certificate under Section 65-B of the Act
was obtained and when M. Krishna (PW-189) was further examined in
chief on 27.04.2017, a certificate under Section 65-B of the Act was
sought to be produced. Objection was raised by the counsel for the
accused. Vide order dated 20.06.2017, the Trial Court opined that the
certificate issued under Section 65-B of the Act produced on
27.04.2017 was not admissible in evidence. Thereafter an application
was filed in the court to allow the prosecution to recall M. Krishna (PW-
189) and to produce the certificate under Section 65-B of the Act in
evidence. The application was rejected by the Trial Court holding the
same to be delayed. The order of the Trial Court was upheld by the
High Court. It is the aforesaid order which is under challenge before
this Court.
4. Mr. Aman Panwar, Additional Advocate General, appearing for the
appellant-State, in his brief argument submitted that in the case in
hand, which shocked the whole country as such, serial bomb blasts in
Bangalore were master minded by the accused. The courts below
should have considered the application in that light. What was sought
to be produced by the prosecution was not something, which was
created later on. Rather it was merely a certificate under Section 65B of
the Act. The primary evidence in the form of electronic devices was
already on record along with the report from CFSL. It is only because
the accused raised an objection to the production of that report and not
to take any chances, the prosecution filed an application under Section
311 Cr. P.C. to resummon M. Krishna (PW-189) and produce the
certificate under Section 65-B of the Act in evidence. There was no
delay as immediately after the court rejected the report dated
29.11.2010 of CFSL on 07.04.2017, an application was filed on
16.12.2017 seeking to produce the certificate under Section 65B of the
Act dated 27.04.2017. The learned courts below should have
appreciated the fact that by denying the prosecution opportunity to
produce the certificate under Section 65-B of the Act, great injustice
would be caused to the appellant. In support of the arguments that a
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certificate under Section 65-B of the Act can be furnished/produced at
any stage of proceedings, reliance was placed on the judgments of this
Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and Arjun
Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
5. In response, Mr. Balaji Srinivasan, learned counsel appearing for
the respondents, submitted that there was no error in the orders
passed by the courts below. The prosecution cannot be allowed to fill up
the lacuna in the evidence by filing an application under Section 311 of
the Cr. P.C. The certificate was sought to be produced after a delay of
six years. Hence, the same was rightly not permitted to be produced on
record. Great prejudice shall be caused to the respondents now if the
same is permitted. The respondents will be deprived of their right of
fair trial. The appeal deserves to be dismissed.
6. We have heard learned counsel for the parties and perused the
relevant referred record.
7. The facts of the case have been briefly noticed in the preceding
paragraphs. Serial bomb blasts took place in Bangalore on 25.07.2008
which shocked not only the Bangalore city or the State but the entire
country, as in such terror attacks it is only the innocents who suffer.
The investigation had to be scientific. At the instance of the accused no.
3, electronic devices such as one Laptop, one external Hard Disc, 3 Pen
Drives, 5 floppies, 13 CDs, 6 SIM cards, 3 mobile phones, one memory
card and 2 digital cameras etc. were recovered and seized. These were
sent for examination to the CFSL, Hyderabad. Report was received on
29.11.2010. The same was submitted before the Trial Court on
16.10.2012 and sought to be proved at the time of recording of
statement, M. Krishna, Assistant Government Examiner, Computer
Forensic Division, CFSL, appeared as PW-189. The accused vide
application dated 06.03.2017 objected to taking the report dated
29.11.2010 in evidence in the absence of a certificate under Section 65
-B of the Act. Immediately, thereafter a certificate dated 27.04.2017
was got issued under Section 65-B of the Act and an application was
filed under Section 311 of the Cr. P.C. seeking to recall M. Krishna (PW-
189) and to produce the aforesaid certificate in evidence. The trial was
still pending. Learned Trial Court without appreciating the legal position
in this regard had dismissed the application. The order was upheld by
the High Court. It was primarily for the reason of delay in producing the
certificate under Section 65B of the Act.
8. This Court in Anwar's case (supra) has opined that a certificate
under Section 65B of the Act is not required if electronic record is used
as a primary evidence. Relevant paragraph thereof is quoted herein
below:
“24. The situation would have been different had the appellant
adduced primary evidence, by making available in evidence, the CDs
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used for announcement and songs. Had those CDs used for
objectionable songs or announcements been duly got seized through
the police or Election Commission and had the same been used as
primary evidence, the High Court could have played the same in
court to see whether the allegations were true. That is not the
situation in this case. The speeches, songs and announcements were
recorded using other instruments and by feeding them into a
computer, CDs were made therefrom which were produced in court,
without due certification. Those CDs cannot be admitted in evidence
since the mandatory requirements of Section 65-B of the Evidence
Act are not satisfied. It is clarified that notwithstanding what
we have stated herein in the preceding paragraphs on the
secondary evidence of electronic record with reference to
Sections 59, 65-A and 65-B of the Evidence Act, if an
electronic record as such is used as primary evidence under
Section 62 of the Evidence Act, the same is admissible in
evidence, without compliance with the conditions in Section
65-B of the Evidence Act.”
(Emphasis added)
9. The aforesaid issue was subsequently considered by this Court in
Arjun Panditrao Khotkar's case (supra). It was opined that there is a
difference between the original information contained in a computer
itself and the copies made therefrom. The former is primary evidence
and the latter is secondary one. The certificate under Section 65-B of
the Act is unnecessary when the original document (i.e., primary
evidence) itself is produced. Relevant paragraph ‘33’ thereof is
extracted below:
“33. The non obstante clause in sub-section (1) makes it clear
that when it comes to information contained in an electronic record,
admissibility and proof thereof must follow the drill of Section 65-B,
which is a special provision in this behalf — Sections 62 to 65 being
irrelevant for this purpose. However, Section 65-B(1) clearly
differentiates between the “original” document — which
would be the original “electronic record” contained in the
“computer” in which the original information is first stored —
and the computer output containing such information, which
then may be treated as evidence of the contents of the
“original” document. All this necessarily shows that Section
65-B differentiates between the original information contained
in the “computer” itself and copies made therefrom — the
former being primary evidence, and the latter being secondary
evidence.”
(Emphasis added)
10. In State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, this
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Court after referring to the earlier judgment in Anwar's case (supra)
held that the non-production of the Certificate under Section 65B of the
Act is a curable defect. Relevant paragraph ‘16’ thereof is extracted
below:
“16. The same view has been reiterated by a two-Judge Bench of
this Court in Union of India v. Ravindra V. Desai, (2018) 16 SCC
273. The Court emphasised that non-production of a certificate
under Section 65-B on an earlier occasion is a curable defect.
The Court relied upon the earlier decision in Sonu v. State of
Haryana, (2017) 8 SCC 570 in which it was held:
‘32. … The crucial test, as affirmed by this Court, is whether
the defect could have been cured at the stage of marking the
document. Applying this test to 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 added)
11. Coming to the issue as to the stage of production of the
certificate under Section 65-B of the Act is concerned, this Court in
Arjun Panditrao Khotkar's case (supra) held that the certificate under
65-B of the Act can be produced at any stage if the trial is not over.
Relevant paragraphs are extracted below:
“56. Therefore, in terms of general procedure, the prosecution is
obligated to supply all documents upon which reliance may be
placed to an accused before commencement of the trial. Thus, the
exercise of power by the courts in criminal trials in permitting
evidence to be filed at a later stage should not result in serious or
irreversible prejudice to the accused. A balancing exercise in respect
of the rights of parties has to be carried out by the court, in
examining any application by the prosecution under Sections 91 or
311 CrPC or Section 165 of the Evidence Act. Depending on the
facts of each case, and the court exercising discretion after
seeing that the accused is not prejudiced by want of a fair
trial, the court may in appropriate cases allow the prosecution
to produce such certificate at a later point in time. If it is the
accused who desires to produce the requisite certificate as
part of his defence, this again will depend upon the justice of
the case — discretion to be exercised by the court in
accordance with law.
59. Subject to the caveat laid down in paras 52 and 56 above, the
law laid down by these two High Courts has our concurrence. So
long as the hearing in a trial is not yet over, the requisite
certificate can be directed to be produced by the learned
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Judge at any stage, so that information contained in electronic
record form can then be admitted and relied upon in
evidence.”
(Emphasis added)
12. The courts below had gone on a wrong premise to opine that
there was delay of six years in producing the certificate whereas there
was none. The matter was still pending when the application to
resummon M. Krishna (PW-189) and produce the certificate under
Section 65-B of the Act was filed under Section 311 of the Cr. P.C.
13. It was only vide order dated 07.04.2017 that the report
prepared on the basis of electronic devices was refused to be taken on
record by the Trial Court. The original electronic devices had already
been produced in evidence and marked as MOs. It was during the
examination in chief of M. Krishna (PW-189) that the report of CFSL
dated 29.11.2010 was sought to be exhibited. However, the Trial Court
vide order dated 07.04.2017 declined to take the same on record in the
absence of a certificate under Section 65B of the Act. When the
aforesaid witness was further examined in chief on 27.04.2017, the
report under Section 65B was produced to which objection was raised
by the counsel of the defence and vide order dated 20.06.2017 the Trial
Court declined to take the certificate, issued under Section 65B of the
Act, on record. It was thereafter that an application was filed under
Section 311 of the Cr. P.C. for recalling M. Krishna (PW-189) and
produce the certificate under Section 65-B of the Act on record. The
same was rejected by the Trial Court vide order dated 18.01.2018.
14. From the aforesaid facts, 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.
15. 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
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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.
16. For the aforesaid reasons, the appeal is allowed. The orders
passed by the courts below are set aside. Resultantly, application filed
by the prosecution under Section 311 of the Cr. P.C. is allowed. The
Trial Court shall proceed with the matter further.
———
1
Dated 27.01.2022.
2
High Court of Karnataka at Bengaluru.
3
XLVIII Additional City Civil and Sessions Judge (Special Court for Trial of CBI Cases) City
Civil Court, Bangalore.
4
S.C. Nos. 1480/2010 & 1481/2010.
5
The Criminal Procedure Code, 1973.
6
The Indian Evidence Act, 1872
7
Criminal Case No. 483/2008.
8
Criminal Case No. 297/2008.
9
Criminal Case No. 314/2008.
10
Criminal Case No. 117/2008.
11
Criminal Case No. 260/2008 and 261/2008.
12
Criminal Case No. 92/2008.
13
Criminal Case No. 217/2008.
14
The Penal Code, 1860.
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