In the present case, on 15 November 2016, the complainant is
alleged to have met the respondent. During the course of the meeting, a
conversation was recorded on a spy camera. Prior thereto, the investigating
officer had handed over the spy camera to the complainant. This stage does
not represent the commencement of the investigation. At that stage, the
purpose was to ascertain, in the course of a preliminary inquiry, whether the
information which was furnished by the complainant would form the basis of
lodging a first information report. In other words, the purpose of the exercise
which was carried out on 15 November 2012 was a preliminary enquiry to
ascertain whether the information reveals a cognizable offence.
22 The High Court has in the present case erred on all the above
counts. The High Court has erred in coming to the conclusion that in the
absence of a certificate under Section 65B when the charge sheet was
submitted, the prosecution was liable to fail and that the proceeding was
required to be quashed at that stage. The High Court has evidently lost sight
of the other material on which the prosecution sought to place reliance.
Finally, no investigation as such commenced before the lodging of the first
information report. The investigating officer had taken recourse to a
preliminary inquiry. This was consistent with the decision in Lalita Kumari.
23 The High Court ought to have been cognizant of the fact that the trial
court was dealing with an application for discharge under the provisions of
Section 239 of the CrPC. The parameters which govern the exercise of this
jurisdiction have found expression in several decisions of this Court. It is a
settled principle of law that at the stage of considering an application for
discharge the court must proceed on the assumption that the material which
has been brought on the record by the prosecution is true and evaluate the
material in order to determine whether the facts emerging from the material,
taken on its face value, disclose the existence of the ingredients necessary
to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10,
adverting to the earlier decisions on the subject; this Court held :
“29…At this stage, probative value of the materials has to be
gone into and the court is not expected to go deep into the
matter and hold that the materials would not warrant a
conviction. In our opinion, what needs to be considered is
whether there is a ground for presuming that the offence has
been committed and not whether a ground for convicting the
accused has been made out. To put it differently, if the court
thinks that the accused might have committed the offence on
the basis of the materials on record on its probative value, it
can frame the charge; though for conviction, the court has to
come to the conclusion that the accused has committed the
offence. The law does not permit a mini trial at this stage.”
24 For the above reasons we are of the view that the appeal would have
to be allowed.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.819 of 2019
State By Karnataka Vs M. R. Hiremath
Dr Dhananjaya Y Chandrachud, J
Dated:01 MAY 2019.
Citation: (2019) 7 SCC 515
1 Leave granted.
2 This appeal arises from a judgment of a learned Single Judge of the
High Court of Karnataka dated 27 April 2017 by which a petition under
Section 482 of the Code of Criminal Procedure 19731 was allowed. While
doing so, the High Court set aside an order dated 5 December 2016 of the
Special Judge, Bengaluru rejecting the application of the respondent for
discharge under Section 239 of the CrPC.
3 The respondent was at the material time serving as Deputy
Commissioner in the Land Acquisition Section of Bangalore Development
Authority2. BDA had acquired certain lands for the formation of a layout on
the outskirts of Bengaluru. The complainant moved the court for
1 ‘CrPC’
2 ‘BDA’
2
denotification of the lands following which, a direction had been issued.
Accordingly, the complainant made an application to BDA for denotification of
the lands.
4 The case of the prosecution is that on 6 November 2012, the
complainant attempted to meet the respondent (accused no.1) by whom the
file was to be placed before the Denotification Committee. It is alleged that
though the complainant was not allowed to meet the respondent, he met his
driver through whom he got to know that such cases were being ‘mediated’
by the second accused, an advocate purporting to act as the agent of the
respondent. A complaint was lodged with the Lokayukta Police on 8
November 2012 apprehending that a bribe would be asked for by the second
accused. The police handed over a spy camera together with the instructions
to be followed. It is alleged that a meeting of the second accused was
arranged with a representative of the complainant. On 12 and 13 November
2012, a meeting took place with the second accused who is stated to have
informed the representatives of the complainant of the amount which will be
charged for the settlement of the deal. The prosecution alleges that on 15
November 2012 the complainant met the respondent at about 7.30 pm near
the BDA office. The conversation between the complainant and the
respondent was recorded on the spy camera in the course of which, it has
been alleged, there was some discussion in regard to the amount to be
exchanged for the completion of the work.
5 On 16 November 2012, a complaint was lodged before the
Lokayukta and a first information report was registered. Subsequently, it is
alleged that a trap was set up and the second accused was apprehended
while receiving an amount of Rupees five lakhs on behalf of the respondent
towards an initial payment of the alleged bribe. A charge sheet was filed after
investigation.
6 Charges were framed for offences punishable under Sections 7, 8,
13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.
7 The respondent instituted three successive petitions under Section
482 of CrPC before the High Court of Karnataka3 for quashing of the criminal
proceedings. The first two petitions were dismissed as withdrawn on 26
February 2013, leaving it open to the respondent to pursue his remedies for
seeking a discharge from the proceedings. The High Court dismissed the
third petition.
8 The first respondent then filed a discharge application under section
239 of the CrPC before the Special Judge, Bengaluru. The trial judge
dismissed the application by an order dated 5 December, 2016. This order
was questioned in revision before the High Court. The revision was rejected
on the ground of maintainability. The respondent instituted a petition under
Section 482 of the CrPC which has resulted in the impugned order of the
learned Single Judge dated 27 April 2017.
9 The learned Single Judge has quashed the proceedings against the
respondent on the ground that (i) in the absence of a certificate under
Section 65B of the Evidence Act, secondary evidence of the electronic
3 Criminal Petition No 7562/2012, Writ Petition No 11252/2013 and Writ Petition No 20394/2013
record based on the spy camera is inadmissible in evidence; (ii) the
prosecution is precluded from supplying any certification “at this point of
time” since that would be an afterthought; and (iii) the case of the
prosecution that apart from the electronic evidence, other evidence is
available, is on its face unconvincing. The learned judge then held that the
second accused who was the subject of the trap proceedings was not
shown to have named the respondent as being instrumental in the episode.
On this finding the proceedings have been quashed.
10 Assailing the correctness of the judgment of the High Court, Mr.
Joseph Aristotle S., learned counsel appearing for the appellant, submits that
(i) the High Court was manifestly in error in holding that a certificate under
Section 65B was warranted at this stage; (ii) a certificate under Section 65B
would be required to be produced at the stage when electronic evidence is
produced in the course of evidence at the trial and hence the stage at which
the High Court sought to apply the provision was premature; (iii) the
prosecution is relying, apart from electronic evidence pertaining to the spy
camera, on other material which prima facie shows the involvement of the
first and the second accused; (iv) without considering the nature of that
evidence, the High Court prevented the prosecution from placing reliance on
such material on the basis of a bald averment that it did not appear to be
convincing; (v) in handing over the spy camera to the complainant and the
process which followed by recording what transpired at the meeting with the
respondent on 15 November 2012, the investigating officer was only
conducting a preliminary inquiry of the nature that is contemplated by the
decision of this Court in Lalita Kumari v Government of Uttar Pradesh4;
and (vi) the purpose of the preliminary inquiry was only to enable the
prosecution to ascertain whether a cognizable offence was made out. In
other words, the utilization of the spy camera during the course of the
preliminary inquiry was in the nature of a pre-trap mahazar which fell within
the exceptions which have been carved out in the decision in Lalita Kumari.
The investigation, it has been urged, would commence only thereafter having
due regard to the provisions contained in Section 154 of the CrPC.
11 On the other hand, while supporting the view which has been taken
by the learned Single Judge of the High Court, Mr. Basava Prabhu Patil,
learned Senior Counsel appearing for the respondent, submits that (i) in the
present case the investigation had commenced before the registration of an
FIR under Section 154 of the CrPC. The events which transpired before 16
November 2012 before the FIR was registered and the collection of material
would be inadmissible in evidence; (ii) while the decision of the Constitution
Bench in Lalita Kumari allows a preliminary inquiry particularly in a case
involving corruption under the Prevention of Corruption Act, the Trial Court
erred in inferring from the decision of this Court that the investigating officer
is entitled to collect evidence even before the FIR is lodged; (iii) there is
nothing to indicate, even the existence of an entry in the Station Diary; (iv) in
consequence, the decision of the trial court was inconsistent with the
principle enunciated in Lalita Kumari, which warranted interference by the
High Court in exercise of its jurisdiction under Section 482 of the CrPC; (v)
as a matter of fact the trial against the second accused has proceeded and
4 (2014) 2 SCC 1
6
despite a lapse of seven years the prosecution has failed to produce a copy
of the certificate under Section 65B of the Evidence Act; and (vi) in the
absence of a certificate under Section 65B, there is an absence of material
hence a discharge is warranted under Section 231 of the CrPC.
12 These submissions fall for consideration.
13 The fundamental basis on which the High Court proceeded to quash
the proceedings is its hypothesis that Section 65B, which requires the
production of a certificate for leading secondary evidence of an electronic
record mandate the production of such a certificate at this stage in the
absence of which, the case of the prosecution is liable to fail. Section 65B
reads as follows :
“Section 65(B). Admissibility of Electronic Records-
(1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied in
relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or
production of the original, as evidence of any contents of the
original or any fact stated therein of which direct evidence
would be admissible.
(2) The conditions referred to in the Sub-section (1) in respect
to the computer output shall be following, namely:
(a) the computer output containing the information was
produced by computer during the period over which computer
was used regularly to store or process information for the
purposes of any activities regularly carried on over that period
by the person having lawful control over the use of computer.
(b) during the said period the information of the kind
contained in the electronic record or of the kind from which
the information so contained is derived was regularly fed into
the computer in the ordinary course of the said activities.
(c) throughout the material part of the said period, the
computer was operating properly or, if not, then in respect of
any period in which it was not operating properly or was out of
operation for that part of the period, was not such to affect the
electronic record or the accuracy of its contents.
7
(d) The information contained in the electronic record
reproduces or is derived from such information fed into
computer in ordinary course of said activities.
(3) Where over any period, the function of storing and
processing information for the purposes of any activities
regularly carried on over that period as mentioned in Clause
(a) of Sub-section (2) was regularly performed by the
computers, whether-
(a) by a combination of computer operating over that period,
or
(b) by different computers operating in succession over that
period; or
(c) by different combinations of computers operating in
succession over that period of time; or
(d) in any other manner involving successive operation over
that period, in whatever order, of one or more computers and
one or more combinations of computers,
all the computers used for that purpose during that period
shall be treated for the purpose of this section as constituting
a single computer and any reference in the section to a
computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement
in evidence by virtue of this section, a certificate doing any of
the following things, that is to say,—
(a) identifying the electronic record containing the statement
and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be appropriate for
the purpose of showing that the electronic record was
produced by a computer;
(c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the
relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter
stated in the certificate; and for the purposes of this subsection
it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer if it
is supplied thereto in any appropriate form and whether it is
so supplied directly or (with or without human intervention) by
means of any appropriate equipment;
(b) whether in the course of activities carried on by any official
information is supplied with a view to its being stored or
processed for the purposes of those activities by a computer
operated otherwise than in the course of those activities, that
information, if duly supplied to that computer, shall be taken to
be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced
by a computer whether it was produced by it directly or (with
8
or without human intervention) by means of any appropriate
equipment.
Explanation.—For the purposes of this section any reference
to information being derived from other information shall be a
reference to its being derived therefrom by calculation,
comparison or any other process.”
14 The provisions of Section 65B came up for interpretation before a
three judge Bench of this Court in Anvar P.V. v P.K. Basheer5. Interpreting
the provision, this Court held :
“Any documentary evidence by way of an electronic record under the
Evidence Act, in view of Sections 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. “
Section 65B(4) is attracted in any proceedings “where it is desired to give
a statement in evidence by virtue of this section”. Emphasising this facet
of sub-section (4) the decision in Anvar holds that the requirement of
producing a certificate arises when the electronic record is sought to be used
as evidence. This is clarified in the following extract from the judgment :
“Most importantly, such a certificate must accompany the
electronic record like computer printout, compact disc (CD),
video compact disc (VCD), pen drive, etc., pertaining to
which a statement is sought to be given in evidence,
when the same is produced in evidence. All these
safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to
electronic record sought to be used as evidence.
Electronic records being more susceptible to tampering,
alteration, transposition, excision, etc., without such
safeguards, the whole trial based on proof of electronic
records can lead to travesty of justice.” (emphasis supplied)
15 The same view has been reiterated by a two judge Bench of this
Court in Union of India and Others v CDR Ravindra V Desai6. The Court
5 (2014) 10 SCC 473
6 (2018) 16 SCC 272
9
emphasised that non-production of a certificate under Section 65B on an
earlier occasion is a curable defect. The Court relied upon the earlier
decision in Sonu alias Amar v State of Haryana7, in which it was held :
“The crucial test, as affirmed by this Court, is whether the defect could
have been cured at the stage of marking the document. Applying
this test to the present case, if an objection was taken to the CDRs
being marked without a certificate, the Court could have given the
prosecution an opportunity to rectify the deficiency.”
(emphasis supplied)
16 Having regard to the above principle of law, the High Court erred in
coming to the conclusion that the failure to produce a certificate under
Section 65B(4) of the Evidence Act at the stage when the charge-sheet was
filed was fatal to the prosecution. The need for production of such a
certificate would arise when the electronic record is sought to be produced in
evidence at the trial. It is at that stage that the necessity of the production of
the certificate would arise.
17 Apart from the above feature of the case, on which it is abundantly
clear that the High Court has erred, we must also notice the submission of
the appellants that independent of the electronic record, the prosecution is
relying on other material. The existence of such material has been adverted
to in the charge-sheet. Details of the documents on which the prosecution
sought to place reliance find specific mention in the charge-sheet particularly
at items 15, 25 and 28 to 31. The High Court rejected this submission of the
appellant on the specious assertion that “it is found that, on the face of it, it
is not convincing”.
18 That leads us to the next limb of a significant submission which has
7 (2017) 8 SCC 570
10
been made on behalf of the respondent by Mr Basava Prabu Patil, learned
senior counsel, which merits close consideration. It was urged on behalf of
the respondent that the exercise of the investigating officer handing over a
spy camera to the complainant on 15 November 2012 would indicate that the
investigation had commenced even before an FIR was lodged and registered
on 16 November 2012. This, it has been submitted, is a breach of the
parameters which have been prescribed by the judgment of the Constitution
Bench of this Court in Lalita Kumari.
19 Before we advert to the decision of the Constitution Bench, it is
necessary to note that in the earlier decision of this Court in P. Sirajuddin v
State of Madras8, the importance of a preliminary inquiry before the lodging
of a first information report in a matter involving alleged corruption by a public
servant was emphasized. This Court observed :
“17… Before a public servant, whatever be his status, is
publicly charged with acts, of dishonesty which amount to
serious misdemeanour or misconduct of the type alleged in
this case and a first information is lodged against him, there
must be some suitable preliminary enquiry into the allegations
by a responsible officer. The lodging of such a report against
a person, specially one who like the appellant occupied the
top position in a department, even if baseless, would do
incalculable harm not only to the officer in particular but to the
department he belonged to, in general. If the Government had
set up a Vigilance and Anti-Corruption Department as was
done in the State of Madras and the said department was
entrusted with enquiries of this kind, no exception can be
taken to an enquiry by officers of this department but any
such enquiry must proceed in a fair and reasonable manner.
The enquiring officer must not act under any preconceived
idea of guilt of the person whose conduct was being enquired
into or pursue the enquiry in such a manner as to lead to an
inference that he was bent upon securing the conviction of
the said person by adopting measures which are of doubtful
validity or sanction. The means adopted no less than the end
to be achieved must be impeccable. In ordinary departmental
proceedings against a Government servant charged with
delinquency, the normal practice before the issue of a charge
sheet is for some one in authority to take down statements of
8 (1970) 1 SCC 595
11
persons involved in the matter and to examine documents
which have a bearing on the issue involved. It is only
thereafter that a charged sheet is submitted and a full-scale
enquiry is launched. When the enquiry is to be held for the
purpose of finding out whether criminal proceedings are to be
resorted to the scope thereof must be limited to the
examination of persons who have knowledge of the affairs of
the delinquent officer and documents bearing on the same to
-find out whether there is prima facie evidence of guilt of the
officer. Thereafter the ordinary law of the land must take its
course and further inquiry be proceeded with in terms of the
Code of Criminal Procedure by lodging a first information
report.”
20 P Sirajuddin (supra) emphasized the requirement of a preliminary
inquiry, where a public servant is alleged to have committed an act of
dishonesty involving a serious misdemeanour. The purpose of a preliminary
inquiry is to ascertain whether a cognizable offence has been made out on
the basis of which a first information report can be lodged. The basis of a first
information report under Section 154 of the CrPC9 is information relating to
the commission of a cognizable offence which is furnished to an officer-incharge
of the police station. It is with a view to ascertain whether a
cognizable offence seems to have been implicated in a case involving an
alleged act of corruption by a public servant that a preliminary inquiry came
to be directed in the judgment of this Court in P Sirajuddin. The decision in
P Sirajuddin was recognized and followed by the Constitution Bench in
Lalita Kumari. The Constitution Bench held that while Section 154 of the
CrPC postulates mandatory registration of a first information report on the
receipt of information indicating the commission of a cognizable offence yet
there could be situations where a preliminary inquiry may be required.
9 154 Information in cognizable cases.- (1) Every information relating to the commission of a cognizable offence, if
given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and
be read over to the informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept
by such officer in such form as the State Government may prescribe in this behalf;
12
Indicating the cases where a preliminary inquiry may be warranted, this
Court held :
“120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable
offence.
120.6. As to what type and in which cases preliminary inquiry
is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in
reporting the matter without satisfactorily explaining the
reasons for delay.”
The purpose of conducting a preliminary inquiry has been elaborated in the
following extract :
“Therefore, in view of various counter claims regarding
registration or non-registration, what is necessary is only that
the information given to the police must disclose the
commission of a cognizable offence. In such a situation,
registration of an FIR is mandatory. However, if no cognizable
offence is made out in the information given, then the FIR
need not be registered immediately and perhaps the police
can conduct a sort of preliminary verification or inquiry for the
limited purpose of ascertaining as to whether a cognizable
offence has been committed. But, if the information given
clearly mentions the commission of a cognizable offence,
there is no other option but to register an FIR forthwith. Other
considerations are not relevant at the stage of registration of
FIR, such as, whether the information is falsely given,
whether the information is genuine, whether the information is
credible etc. These are the issues that have to be verified
during the investigation of the FIR. At the stage of registration
of FIR, what is to be seen is merely whether the information
given ex facie discloses the commission of a cognizable
offence. If, after investigation, the information given is found
to be false, there is always an option to prosecute the
complainant for filing a false FIR.”
21 In the present case, on 15 November 2016, the complainant is
alleged to have met the respondent. During the course of the meeting, a
conversation was recorded on a spy camera. Prior thereto, the investigating
officer had handed over the spy camera to the complainant. This stage does
not represent the commencement of the investigation. At that stage, the
purpose was to ascertain, in the course of a preliminary inquiry, whether the
information which was furnished by the complainant would form the basis of
lodging a first information report. In other words, the purpose of the exercise
which was carried out on 15 November 2012 was a preliminary enquiry to
ascertain whether the information reveals a cognizable offence.
22 The High Court has in the present case erred on all the above
counts. The High Court has erred in coming to the conclusion that in the
absence of a certificate under Section 65B when the charge sheet was
submitted, the prosecution was liable to fail and that the proceeding was
required to be quashed at that stage. The High Court has evidently lost sight
of the other material on which the prosecution sought to place reliance.
Finally, no investigation as such commenced before the lodging of the first
information report. The investigating officer had taken recourse to a
preliminary inquiry. This was consistent with the decision in Lalita Kumari.
23 The High Court ought to have been cognizant of the fact that the trial
court was dealing with an application for discharge under the provisions of
Section 239 of the CrPC. The parameters which govern the exercise of this
jurisdiction have found expression in several decisions of this Court. It is a
settled principle of law that at the stage of considering an application for
discharge the court must proceed on the assumption that the material which
has been brought on the record by the prosecution is true and evaluate the
material in order to determine whether the facts emerging from the material,
taken on its face value, disclose the existence of the ingredients necessary
to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10,
adverting to the earlier decisions on the subject; this Court held :
“29…At this stage, probative value of the materials has to be
gone into and the court is not expected to go deep into the
matter and hold that the materials would not warrant a
conviction. In our opinion, what needs to be considered is
whether there is a ground for presuming that the offence has
been committed and not whether a ground for convicting the
accused has been made out. To put it differently, if the court
thinks that the accused might have committed the offence on
the basis of the materials on record on its probative value, it
can frame the charge; though for conviction, the court has to
come to the conclusion that the accused has committed the
offence. The law does not permit a mini trial at this stage.”
24 For the above reasons we are of the view that the appeal would have
to be allowed. We accordingly allow the appeal and set aside the judgment
and order of the High Court dated 24 April 2017 in Criminal Writ Petition No
3202 of 2017. We accordingly maintain the order passed by the learned trial
judge on 5 December 2016 dismissing the discharge application filed by the
respondent.
..……………………..…..................J
[Dr Dhananjaya Y Chandrachud]
..……………….………….................J
[Hemant Gupta]
New Delhi;
01 MAY 2019
10 (2014) 11 SCC 709
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