IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF APRIL, 2017 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL PETITION NO.8452 OF 2016 Between:
Naveed Pasha @ Naveed Ahmed, S/o Khalid Ahmed, Aged about 25 years, No.597, Shafiya Manjil, Jilani Road, Udayadiri, Mysore – 571 105. …Petitioner (By Shri. S. Balakrishnan, Advocate) And:
1. The State of Karnataka, Hunsur Town Police Station, Mysore – 570 001.
2. Sri. H.C. Ashok Kumar, S/o H.C. Chandrashekar Shetty, Aged about 62 years, M/s. Ashok Traders, Old B.M. Road, House No.1864, Hunusuru, Mysore District – 571 105.
…Respondents (By Shri. Sandesh J Chouta, SPP – II for R1;
Notice to R2 dispensed with vide order dated 13.02.2017) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 26.10.2016 permitting prosecution to mark and display of CD’s in S.C.No.109/2012 c/w S.C.No.1027/2012, S.C.No.109/ 2014 on the file of 34th Addl. City Civil and S.J., and P.O., Special Court (CCH-35) at Central Prison Premises, Bangalore.
This Petition coming on for admission this day, the Court made the following:-
O R D E R The present petition coming on for admission is heard and disposed of at the initial stage. The Additional State Public Prosecutor is directed to take notice. It transpires that the petitioner is an accused facing proceedings for an offence punishable under Section 302 at the trial. It is claimed that PWs.17 and 19 were had in the course of their evidence sought to mark certain electronic evidence in the form of compact disks which was assigned in property numbers PF 57 and 79 of 2011 and 6 of 2012 respectively. The objection was raised by the defence that such electronic evidence could not be admittedly in evidence without being accompanied by a certificate as required under Section 65 – B of the Evidence Act, 1872 and this has been overlooked by the trial court and the same is yet to be marked. It is in this background that the petitioner is before this Court.
It is laid down by the Supreme Court in the case of P V Anvar vs. P K Basheer and others, 2014 (10) SCC 473 to the effect that in interpreting Section 65-B has laid down strictly that no such evidence can be tendered without compliance with Section 65B. In that view of the matter, there was no choice for the prosecution but to produce only such documents by way of electronic evidence accompanied by a necessary certificate. If the same are not accompanied by the necessary certificate the evidence is not admissible. There is no question of marking the same at this juncture. The Additional State Public Prosecutor would point out that the controversy is a reason as early as in October, 2016 and the impugned order itself would disclose that the electronic evidence sought to be produced was indeed accompanied by a certificate. If there is such a certificate it could be marked in evidence or otherwise the court cannot have the same marked in evidence. With that observation the petition stands disposed of.
Sd/- JUDGE ykl