The Hon’ble Supreme Court, in a recent ruling¹, decided in favour of an Appeal filed by the State of Karnataka. This Appeal pertained to an order passed by the Karnataka High Court, which had rejected the prosecution’s application under Section 311 of the Code of Criminal Procedure. This application sought to recall a witness and permit the prosecution to produce a certificate under Section 65B of the Indian Evidence Act to prove a report based on electronic evidence.

The case in question arises from a series of bomb blasts that shook Bangalore in the year 2008. These blasts resulted in the loss of one innocent life and left several others injured. Several First Information Reports (FIRs) were registered at various police stations across the city, alleging multiple charges under the Indian Penal Code (IPC) and various other acts, including the Explosive Substances Act, the Prevention of Destruction and Loss of Property Act, the Prevention of Damage to Public Property Act, and the Unlawful Activities (Prevention) Act.

During the course of the investigation, the prosecution seized several electronic devices, such as a laptop, an external hard disk, pen drives, floppies, CDs, SIM cards, mobile phones, memory cards, and digital cameras, at the instance of one of the accused. These devices were sent for examination to the Central Forensic Science Laboratory (CFSL), Hyderabad and the report was received on 29.11.2010. The report was submitted before the Trial Court on 16.10.2012 and sought to be proved at the time of recording the evidence of one of the witnesses namely, M. Krishna, Assistant Government Examiner, Computer Forensic Division, CFSL. These electronic devices were presented before the Trial Court, along with an additional chargesheet.

A significant turning point in the case was during the examination in chief of the witness, where the Trial Court passed an order dated 07.04.2017 declaring the CFSL report inadmissible in evidence due to the absence of a certificate under Section 65B of the Indian Evidence Act. The prosecution contended that, since the original electronic devices were already on record as primary evidence, there was no requirement for a Section 65B certificate. The original electronic devices had already been produced in evidence and marked.

When the 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 an order dated 20.06.2017 was passed by the Trial Court declining to take the certificate, issued under Section 65B on record.

Thereafter the prosecution filed an application under Section 311 of the Code of Criminal Procedure for recalling the same witness to produce the certificate under Section 65B on record. The trial was still pending. The Accused raised an objection to the production of the Section 65B certificate, and in response, the Trial Court rejected the application of the prosecution on grounds of delay in producing the certificate under Section 65B and this order was upheld by the High Court.

The Hon’ble Supreme Court while allowing the prosecution’s appeal observed that the key aspect of the decision revolved around the timing of the presentation of the Section 65B certificate and the fundamental principles of a fair trial. The Bench observed that there was no substantial delay in producing the certificate. The report from the forensic laboratory was given to the court in the year 2010, and the Section 65B certificate was submitted promptly after the accused raised objections to the admissibility of the report.

The Bench held that the Section 65B certificate being presented by the prosecution is not new evidence but a requirement of law to prove a report on record and by permitting the prosecution to produce the Section 65B certificate at this stage won't cause any significant harm to the accused, as they will still have a chance to rebut the evidence brought forward by the prosecution.

In this context, the Apex Court reiterated that the object of Section 311 of the Code of Criminal Procedure was to arrive at the truth and the object of a fair trial in a criminal case is that no guilty should go scott-free and no innocent should be punished.

It was further emphasised that non-production of a certificate under Section 65B of the Indian Evidence Act on an earlier occasion is a curable defect and the crucial test is whether the defect could have been cured at the stage of marking the document. So long as the hearing in a trial is not yet over, the Section 65B certificate can be directed to be produced, by a Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence.

By - Lakshmi Raman