TMS PRAKASH Vs. THE STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) 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.

(2.) Undisputedly, as per the amended Sec. 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, (2017) 1 SCC 734 (B) 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, (2014) 10 SCC 473 : 2014 (6) ALT 38.1 (DN SC).

(3.) However the fact remains that if certificate filed to comply the requirement contemplated by Sec. 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, 2015 SCC Online 8331 of Rajasthan High Court and Kundan Singh Vs. State, 2015 SCC Online 13647 of Division Bench of Delhi High Court. Otherwise the Court is not powerless from the enabling provision under Sec. 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.