Date of Order: 
06th November 2023
 

Bench: 
Hon’ble Mr. Justice Vikram Nath
Hon’ble Mr. Justice Rajesh Bindal

Parties: 
Appellant(s): State of Karnataka
Respondent(s): T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi  & Ors.

SUBJECT:

The Hon’ble Supreme Court of India (hereinafter referred to as ‘the Supreme Court’ or ‘the Court’) set aside the rulings of the Trial Court and the High Court which rejected the application under section 311 of the Code of Criminal Procedure and the certificate under section 65B of the Indian Evidence Act holding that the central goal of a trial is to prevent any guilty individuals from evading accountability, and at the same time, to safeguard innocent individuals from undeserved punishment.

IMPORTANT PROVISIONS:

The Code of Criminal Procedure, 1973 (CrPC):

• Section 311
• Section 91

Indian Evidence Act, 1872 (IEA):

• Section 65B
• Section 65A
• Section 59
• Section 62
• Section 165

Indian Penal Code, 1860 (IPC):

• Section 120B
• Section 121
• Section 121A
• Section 123
• Section 153A
• Section 302
• Section 307
• Section 326
• Section 337
• Section 435
• Section 506
• Section 201

Explosive Substances Act, 1908 (ESA)

Prevention of Destruction and Loss of Property Act, 1981 (PDLP)

Prevention of Damage to Public Property, 1984 (PDPP)

Unlawful Activities (Prevention) Act, 1967 (UAP)

OVERVIEW:

• The trial originated from a series of bomb blasts on July 25, 2008, in Bangalore, resulting in one fatality and multiple injuries.
• Several FIRs were filed for various offenses under the IPC and other Acts.
• Electronic devices were seized from one of the accused, Sarfaraz Nawaz @Seju @Hakeem.
• The Trial court, followed by the High Court, held that a forensic report on the seized electronic devices was inadmissible without a certificate under section 65B of IEA, and rejected the application to recall a witness and introduce the certificate.
• The impugned judgment is now contested before the Supreme Court.

ISSUES RAISED

• Whether a certificate section 65B is required and can be produced at a later stage in a criminal trial without causing irreversible prejudice to the accused?

ARGUMENTS ADVANCED BY THE APPELLANT

• Original devices were already on record and did not require any certificate. One was obtained as a precautionary measure.
• Denying the State to bring back witness PW189 and present the section 65-B certificate, would be unfair.
• In the case of Anvar P.V. v. P.K. Basheer (2014) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) provide that a section 65B certificate can be shown at any stage of the proceedings.

ARGUMENTS ADVANCED BY THE RESPONDENT:

• No error in judgment of the Trial Court and the High Court.
• Appellant(s) should not be allowed to patch up gaps in evidence by using Section 311 of CrPC.
• There was a delay of six years in seeking to produce the certificate and asserting the certificate now would cause significant harm to the respondents.
• If the certificate is permitted, it would lead to the loss of rights to a fair trial of the respondents.

JUDGEMENT ANALYSIS

• The examination report was submitted to the Trial Court on 16.10.2012, to which the accused objected to being used as evidence.
• The trial court dismissed the application filed under section 311 of CrPC to recall a witness citing delay in the production of the section 65B certificate.
• The case of Arjun Panditrao Khotkar (supra), which dealt with the same issue, held that there was a distinction between the original information stored in a computer and the copies made from it. While the former is primary evidence, the latter is secondary.  Therefore, when the primary evidence is presented, there is no requirement for a section 65B certificate.
• The Trial Court refused to accept the report based on electronic devices, even though the original electronic devices had already been submitted as evidence and marked as MOs.
• It was only after the examination of witness PW189 and the rejection of the section 65B certificate that the application under section 311 of CrPC was filed to recall the witness and introduce the section 65B certificate.
• Taking note of the Arjun Panditrao Khotkar (supra) case, the Supreme Court held that the certificate under 65B could be produced at any stage of an ongoing trial.
•  The Lower courts have erred in assuming that there had been a delay in presenting the certificate and thereby rejecting the application as the case was still ongoing when certificate 65B was introduced and the application under section 311 of CrPC was filed.
• The section 65B certificate is not new evidence but rather fulfills a legal requirement to support a report already on record.

CONCLUSION

The Supreme Court in this judgment held that in a trial, the goal is to ensure justice for all parties involved. Those who are truly guilty should face the consequences of their actions, and those who are innocent should not be wrongly convicted. The Court set aside the judgments of the lower courts and accepted the appeal, approving the application under section 311 of CrPC and directing the Trial Court to proceed with the case, with no order as to costs.