2585 of 2019 filed by the appellant-State, an order dated 18.01.2018 passed by the Trial Court was upheld.
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.
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. 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 5 Act dated 27.04.2017.
Balaji Srinivasan, learned counsel appearing for the respondents, submitted that there was no error in the orders passed by the courts below. Hence, the same was rightly not permitted to be produced on record.
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. 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.
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.
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.
Also Read: https://newslaw.in/?p=402
Hiremath, 2019(7) SCC 515, this Court after referring to the earlier judgment in Anwar’a case (supra) held that the non-production of the Certificate under Section 65B of the Act is a curable defect. 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. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence.” (Emphasis added) 12. 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. 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. Resultantly, application filed by the prosecution under Section 311 of the Cr.P.C.
Case Title: THE STATE OF KARNATAKA Vs. T NASEER @ NASIR @ THANDIANTAVIDA NASEER @ UMARHAZI @ HAZI
Case Number: Crl.A. No.-003456-003456 / 2023
