State of Karnataka v. T.Naseer @ Thadiantavida Naseer

The Supreme Court reiterated that a certificate under Section 65B of the Indian Evidence Act to prove electronic evidence can be produced at any stage

A bench comprising Justices Vikram Nath and Rajesh Bindal set aside a judgment of the Karnataka High Court which refused to allow the prosecution to produce Section 65B Certificate in the trial relating to the 2008 Bangalore Blasts Case.

The bench referred to the 2020 judgment of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal which held that “certificate under 65-B of the Act can be produced at any stage if the trial is not over.”

The Court also took note of the observations in the 2014 decision Anwar PV v. PK Basheer that certificate under Section 65B of the Act is not required if electronic record is used as a primary evidence.

Reference was also made to the 2019 decision State of Karnataka v. M.R. Hiremath which held that the non-production of the Certificate under Section 65B of the Act is a curable defect.

The case related to the bomb blasts which took place in Bangalore in July 2008, which claimed the life of one woman and left many injured. During the investigation, certain electronic evidence such as such as one Laptop, one external Hard Disc, 3 Pen Drives, 5 floppies, 13 CDs, 6 SIM cards, 3 mobile phones, one memory card and 2 digital cameras etc., were seized at the instance of one of the accused. These were sent to the Central Forensic Science Laboratory (CFSL) Hyderabad, which prepared a report after examination in 2010.

The Trial Court, in 2017, refused to accept the CFSL report of 2010 by citing the absence of Section 65B Certificate. The stand of the prosecution was that the certificate was not necessary as the original devices themselves were produced as the primary evidence. Still, as a matter of abundant caution, the prosecution sought to recall the Assistant Government Examiner, Computer Forensic Division, CFSL, to produce the 65B certificate. In 2018, the Trial Court rejected the recall application and the High Court later upheld the rejection.

The Supreme Court disapproved of the approach taken by the Trial Court and the High Court. “The courts below had gone on a wrong premise to opine that there was delay of six years in producing the certificate whereas there was none,” the Court said, pointing out that the CFSL report was on record since 2012 and the necessity of the certificate arose only after the objection was taken by the defence when the examination happened in 2017.

“From the aforesaid facts, it cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. 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. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the accused against the production of CFSL report prepared on the basis of the electronic devices seized,” the Court observed.

Underscoring that the offence was something which shocked the whole nation, the judgment authored by Justice Bindal further observed :

“Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution.”

Thus, the appeal was allowed, permitting the prosecution to recall the witness under Section 311 CrPC to produce the 65B Certificate.

Written By Adv Rohit Yadav

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