Sessions Judge’s Power to Examine Electronic Evidence in CrPC 156(3) Revision: Clarification from Bombay HC

 Background and Case Snapshot

In a pivotal judgment delivered on June 5th, 2023, the Bombay High Court (Aurangabad Bench) addressed a recurring procedural question confronting criminal practitioners and judges: Can a Sessions Court, during revision proceedings under Section 156(3) CrPC, view evidence (specifically electronic evidence like a CD) that is not yet

“admissible” under the Indian Evidence Act? The controversy stemmed from Sudhir and Ors. vs. State of Maharashtra and Ors. (Criminal Writ Petition No. 76 of 2023).

This case involved allegations of caste abuse, assault, and misconduct by several police personnel and a Home Guard, based on an incident at a hospital in Jalna. The complainant — a social worker from the Gavali community — sought directions from the JMFC Jalna under Section 156(3) CrPC for police investigation, supplying a CD containing video evidence of the incident.

The JMFC rejected the plea for FIR registration, citing lack of prior sanction under the Maharashtra amendment to Section 156(3) — a safeguard for public servants acting in discharge of official duties. The complainant challenged this in a revision before the Sessions Court, submitting the contested CD as material evidence.

The Core Objection: Technicality versus Justice

The accused objected to the Sessions Court viewing the CD, arguing:

• Absence of Section 65-B Certificate: Without the certificate, as mandated by the Evidence Act, the CD has no evidentiary value and cannot be considered at any stage.

• Taking Cognizance: Viewing the CD amounts to taking cognizance of the case, which is premature unless the evidence is formally admissible.

Conversely, the complainant and State argued:

• Revision is Not Trial: The admissibility of evidence comes at trial, not at revision or pre-cognizance stages.

• Section 397 CrPC is Broad: The Sessions Court can examine all material part of lower court records, regardless of technical admissibility.

High Court’s Reasoned Judgment

Justice Kishore C. Sant decisively clarified the law:

• Revisionary Scope: Section 397 CrPC empowers both High Courts and Sessions Judges to call for and examine all records from subordinate courts, for checking propriety, legality, or correctness of findings or orders. This naturally includes all materials placed before the trial court—such as the CD in question.

• Admissibility Not a Threshold at Revision: The requirement for a Section 65-B certificate is strictly for admitting electronic records into evidence at trial. At the revision or pre-cognizance stage, the court is merely assessing if there is a prima facie case for directing investigation, not proving facts.

• No Locus for Objection: Accused persons do not have locus standi to dictate whether the Sessions Court may view records forming part of the case file. Their role at this point is restricted to defending the order under challenge.

• Viewing ≠ Cognizance: Merely viewing a document or material by the court, to understand the case or allegations, does not amount to ‘taking cognizance’. Cognizance is a formal act, not a procedural step like examining the record for revisionary adjudication.

• Protection for Public Servants: The High Court notes that all safeguards (such as need for sanction) remain at subsequent stages. The scope of judicial scrutiny during revision is distinct from final adjudication on merits.

Key Takeaways for Advocates and Judges

• At the revision stage, courts are concerned with correctness and propriety of lower court orders and may look at all materials part of the record, regardless of formal admissibility.

• Technical objections under the Evidence Act cannot be raised prematurely to block judicial examination of factual material in revision or pre-investigation stages.

• Section 65-B certificate for electronic evidence becomes relevant only when proving the contents of such evidence at trial, not when courts are considering prima facie circumstances.

• Accused cannot restrict the Sessions Judge’s use of judicial power to review case records, ensuring fair and comprehensive oversight.

Practical Implications

This judgment is instructive for criminal law practitioners, especially those handling sensitive complaints against public servants:

• Courts will not be fettered by technicalities at investigative and revision stages, preserving the flexibility needed for preliminary scrutiny.

• Defenses based on procedural lapses in evidence admissibility are better reserved for trial stages, not for arguments against the very possibility of judicial examination.

• The judiciary’s oversight function under Section 397 CrPC is broad and encompasses reviewing all material, including digital and electronic records, provided they formed part of the original case.

Conclusion

Sudhir and Ors. vs. State of Maharashtra and Ors. sets a clear precedent — Courts, especially Sessions Courts in revision under Section 156(3) CrPC, are empowered to examine all materials before them, electronic or otherwise, at the pre-trial stage. The admissibility test under Section 65-B of the Evidence Act is contextual and triggered only during trial. For advocates and judges, this ruling is a timely reminder of the distinction between procedural technicality and the larger imperative of justice and oversight.

Read full judgment here: Click here.

Print Page