Section 65-B clause (4) of the Indian Evidence Act (for short the Act) for adducing any electronic evidence not in the form of original/primary evidence, the certificate contemplated is mandatory.- No - later it can be filed or Original can be summoned along with certificate - if certificate filed to comply the requirement contemplated by Section 65-B(4) of the Act, for the law is well settled that the certificate need not be filed with secondary evidence produced in Court, but can be later even, to validate and sanctify the secondary evidence vide Paras Jain Vs. State of Rajasthan of Rajasthan High Court and Kundan Singh Vs. State of Division Bench of Delhi High Court. Otherwise the Court is not powerless from the enabling provision under Section 165 of the Act, to direct the prosecution or the defacto complainant whoever in the custody of the original cell phone with memory card where the conversation is recorded to produce the said primary evidence therein, before the Court as per the law laid down in the three Judge Bench of the Apex Court in Anvar supra particularly in Para 24, either to play the contents if at all in the open Court or to direct any of the party to file the English contents of the translation and relevant photographs of the audio and video coverage for respective use with reference to original by confirming on displaying of the same if at all necessary. Once that is the mode of adducing the primary evidence of the contents of the electronic record/document in favour of the prosecution or in favour of the accused by any one, there is nothing to find fault with the impugned order of the lower court, but for giving liberty to the petitioner to take any such available recourse from what is observed supra.

HONBLE DR. JUSTICE B. SIVA SANKARA RAO        

Crl.R.C.No.1649 of 2016

15-03-2017

TMS PrakashPetitioner  

The State of Andhra Pradesh rep. by its Special Public Prosecutor for
ACB.Respondent    

Counsel for the petitioner:Sri T. Pradyumna Kumar Reddy

Counsel for the respondent:Sri Udaya Bhaskar Rao, SC for ACB

<GIST:
       
>HEAD NOTE:  


? Cases referred
1.2017 (1) SCC 734 (B)
2.2014 (10) SCC 473

HONBLE DR. JUSTICE B. SIVA SANKARA RAO        
CRIMINAL REVISION CASE No.1649 of 2016    
ORDER:
      Heard learned counsel for the petitioner/accused officer
and also the learned Standing Counsel-cum-Public Prosecutor for
the ACB, State of Andhra Pradesh and perused the impugned
order of the learned Special Judge dated 12.04.2016 in
Crl.M.P.No.256 of 2016 in C.C.No.10 of 2011.
      Undisputedly, as per the amended Section 65-B clause (4)
of the Indian Evidence Act (for short the Act) for adducing any
electronic evidence not in the form of original/primary evidence,
the certificate contemplated is mandatory.  The prosecution relied
upon Ex.P2-CD that was exhibited through PW.1, however the  
compact disc is not shown as primary evidence, more 
particularly, from the prosecution version of the so called
conversation is recorded in cell phone and the information is
transmitted by retrieving the same into the compact disc.  Once it
is the copy to the original and for no such certificate filed to
exhibit the secondary evidence covered by Ex.P2-compact disc 
even same is marked, it cannot be looked into much less to use
by any party either by prosecution or by accused, more
particularly, for the reason that there are no separate provisions
in favour of the accused from the Evidence Act in relation to the
adduce of evidence vide recent decision of the Apex Court in
Harpal Singh @ Chhota Vs. State of Punjab  at Paras 56 & 57,
no doubt same is relating to call data information, by placing
reliance upon the decision of the Apex Court in Anvar P.V Vs.
P.K.Basheer .
      However the fact remains that if certificate filed to comply
the requirement contemplated by Section 65-B(4) of the Act, for
the law is well settled that the certificate need not be filed with
secondary evidence produced in Court, but can be later even, to
validate and sanctify the secondary evidence vide Paras Jain Vs.
State of Rajasthan  of Rajasthan High Court and Kundan Singh
Vs. State  of Division Bench of Delhi High Court.  Otherwise the
Court is not powerless from the enabling provision under Section
165 of the Act, to direct the prosecution or the defacto
complainant whoever in the custody of the original cell phone
with memory card where the conversation is recorded to produce
the said primary evidence therein, before the Court as per the law
laid down in the three Judge Bench of the Apex Court in Anvar
supra particularly in Para 24, either to play the contents if at all
in the open Court or to direct any of the party to file the English
contents of the translation and relevant photographs of the audio
and video coverage for respective use with reference to original by
confirming on displaying of the same if at all necessary.
      Once that is the mode of adducing the primary evidence of
the contents of the electronic record/document in favour of the
prosecution or in favour of the accused by any one, there is
nothing to find fault with the impugned order of the lower court,
but for giving liberty to the petitioner to take any such available
recourse from what is observed supra.
      With the above observations, the revision case is disposed
of.
      Consequently, miscellaneous petitions, if any shall stand
closed.  No costs.
_____________________________________    
JUSTICE Dr. B.SIVA SANKARA RAO      
Date: 15.03.2017

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