Rasiklal Dhariwal v. Kishore Wadhwani

( Passed on this 08th day of October, 2015 ) THIS petition under Section 482 of the Code of Criminal Procedure [for short the Code] is filed against the order dated 01.07.2015 passed by JMFC, Indore in Criminal Case No.16047/2006.

[2] Brief facts of this case are that on 02.01.2005 Respondent/complainant filed a complaint against the petitioner for allegedly having defamed the Respondent in a TV interview given in Dubai which was telecast in Indian and seen by Respondent and other persons in Indore. In order to prove the said allegation, the Respondent had filed a CD of the alleged interview along with the complaint. Learned Magistrate after following the procedure prescribed for private complaint took the cognizance against the petitioner for the offence under Section 500 of IPC and directed for issuance of summons. The -: 2:- Misc. Criminal Case No.6394 of 2015. petitioner appeared before the Magistrate. Thereafter on 01.07.2015 Respondent has filed an application along with the CD and certificate of authorized signatory of ABP News with the prayer that as the earlier CD filed along with the complaint become corrupt, therefore, new CD be taken on record. Learned Magistrate by the impugned order allowed the application and directed the Reader that new CD be kept in safe custody. Being aggrieved with this order, the petitioner has filed this petition.

[3] Learned Senior Counsel for the petitioner submits that along with the complaint the Respondent has filed the CD without complying the provisions of Section 65-B of the Evidence Act [for short the Act] which is mandatory for an electronic record taken into consideration. To over come this deficiency, the Respondent has moved the application and the learned Magistrate has taken on record the new CD which is not permissible. Besides this, the Respondent has filed the new CD along with the certificate of the channel but the certificate is given by news channel i.e. by ABP News not by Star TV. The certificate is also deficient in material particulars as it does not even state the date on which the interview was taken and whether the copy was checked with the original and found to be identical. Hon'ble apex Court in the recent judgment in the case of Anvar P.V. v/s P.K.Basheer [(2014) 10 SCC 473] held that without complying the provisions of Section 65-B of the Act, electronic record cannot be considered. Thus, the impugned order is not sustainable in law and liable to be set- aside. -: 3:- Misc. Criminal Case No.6394 of 2015.

[4] On the other hand, learned Senior Counsel appearing on behalf of the Respondent/complainant submits that against the impugned order revision under Section 397/401 of the Code is maintainable, therefore, the petition under section 482 of the code is not maintainable. He further submits that learned Magistrate by the impugned order has only directed to take on record the new CD. For production of any electronic document certification is not necessary as provided under Section 65-B of the Act. Such certificate is required only when the electronic record is tendered in evidence. It is also submitted that the Respondent has not filed the application under Section 65 of the Act. It is further submitted that when the Respondent will tender the electronic record in evidence, he shall comply the provisions of Section 65-B of the Act and in case he fails to do so, the petitioner has right to raise the objections. Thus, at this stage there is no ground for interference by this Court.

[5] After hearing learned counsel for the parties, perused the record.

[6] The impugned order is an interlocutory order, therefore, against such order revision under Section 397/401 of the Code is not maintainable. In such circumstances, the Court can exercise inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, I am of the view that the petition under section 482 of the code is maintainable.

[7] The following two questions are crop up for -: 4:- Misc. Criminal Case No.6394 of 2015. consideration before this Court :-

(i) That if the copy of the document is filed along with the complaint, whether subsequently the certified copy of the document can be taken on record ?

(ii) Whether admissibility of the electronic record should be considered by the Court at the time of taking the document on record or subsequently when the electronic record will be tendered in the evidence ?

[8] Admittedly along with the complaint the Respondent has filed the CD of interview of the petitioner which he himself has recorded [See para 2 of the complaint]. Thereafter Respondent has obtained a certified copy of the CD of recording of interview of the petitioner with the certificate and Respondent requested the Court to take the same on record and learned Magistrate has allowed the prayer.

[9] It is settled law that it is not an obligation of the prosecution to file all the documents in their possession though they are bound to file documents on which they rely. Even if it is expected that this is a mandatory obligation, the omission to file any particular document along with the charge- sheet/complaint is mere an irregularity which is curable under section 465 of the code. In the present case, the Respondent has filed the copy of the CD which he himself recorded and thereafter obtained the certified copy of the CD with the certification and has filed it and requested for taking on record and learned Magistrate has allowed the prayer. I am of the view that the Magistrate has not committed any error of law and this is only an irregularity which is curable under Section

465 of the Code. -: 5:- Misc. Criminal Case No.6394 of 2015. [10] Now the second question is that as to whether certification under Section 65-B of the Act is required at the time of production of electronic record or at the time of proving the electronic record. Section 65-A of the Act provides that contents of electronic record may be proved in accordance with the provisions of Section 65-B of the Act and Section 65-B of the Act provides the procedure to prove and admissibility of electronic record. It is not provided that without the certification as provided under Section 65-B of the Act, even one can not produce the electronic record. The production of document is altogether a different thing to prove a document. Even the document has been admitted as secondary evidence then it will not absolve the party from proving the fact that the original document was in existence. Hon'ble apex Court in the case of Anvar P.V. (supra) held as under :-

Any documentary evidence by way of an electronic record under the Evidence Act, in view of Section 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B (2). Following are the specified conditions under Section 65-B (2) of the Evidence Act :

-: 6:- Misc. Criminal Case No.6394 of 2015. [11] With the aforesaid, I am of the view that the learned Magistrate while directed to take the certified CD on record has not committed any error of law. However, it is made clear that the Respondent can prove the secondary evidence of electronic record only after complying the conditions enumerated in Section 65-B (4) of the Act. [12] In view of the above, there is no substance in this petition. The petition is hereby dismissed. Copy of the order be sent to Trial Court for information. [ JARAT KUMAR JAIN ] JUDGE Sharma AK/*