Non-Filing Of Certificate U/S 65B Evidence Act Does Not Vitiate Trial; Marking Of Document & Examination May Take Place U/S 311 CrPC: Karnataka HC

The Court also reiterated that under Section 311 of the Code of Criminal Procedure, 1973, marking of such a document, examination, re-examination, cross-examination and further cross-examination can take place.

The Bench of Justice M Nagaprasanna, while relying on the landmark judgment in State Of Karnataka v. T. Naseer (2023), observed, “The Apex Court in the case of T. NASEER supra has clearly held that Section 311 of the Cr.P.C., is in the statute only for this purpose, as it is a voyage towards discovery of truth. Under Section 311 of the Cr.P.C., marking of document, examination, re-examination, cross-examination and further cross-examination can take place. Therefore, the first glorified submission of the learned counsel for the petitioner tumbles down, as the evidence that is let in being the compact disc, without attaching to it a certificate under Section 65-B of the Evidence Act, does not and did not vitiate the proceedings.”

Advocate Sri Gridhar H. appeared for the Petitioner while HCGP Sri Thejesh appeared for the Respondents.

A writ petition was filed under Article 226 of the Constitution and Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, praying to quash the trial. The Petitioner-Accused questioned the order passed by the Sessions Court by which additional material was placed before the Sessions Court was permitted to be marked, as also recalling witnesses for further cross-examination in order to demonstrate contents of the compact disc that was marked on the said date.

The Accused was a tuition teacher and the victim was his student, who used to visit the house of the Accused for classes. It was alleged in the complaint that the Accused raped her, recorded the act on his mobile phone and threatened the victim not to reveal the same to anyone. Long after the incident was over, Accused No.2 shared the video with the cousin brother of the victim, after which, the offence came into life by which time six years have passed by. Subsequently, an FIR was registered against the Accused and several others for offences punishable under Sections 376 and 506 of the Indian Penal Code, 1860, Sections 6 and 15 of the Protection of Children from Sexual Offences Act, 2012 and Section 66 of the Information Technology Act, 2008.

During the examination-in-chief, the witnesses had revealed that a video that was transmitted into a compact disc was handed over to the Investigating Officer. It was then the prosecution realized that the compact disc was not marked in evidence. The video was then taken as evidence and played before PW-3, the mother. The mother saw the video and identified her daughter. Later it was sought to be marked through PW-3. This was objected to by the Accused in terms of his objections saying there was no certificate under Section 65-B of the Evidence Act. Later, the Public Prosecutor filed an appropriate Section 65-B Certificate along with further statement of the Complainant.

The Court observed, “While there can be no quarrel about the contention of the petitioner that once evidence would commence after framing of charges, there cannot be a supplementary charge sheet, as that right ceases or freezes in favour of the prosecution, the day charges are framed. Alteration of charge can happen at any time during the trial under Section 216 of the Cr.P.C., but not an additional charge sheet. In the case at hand, it is not an additional charge sheet or a supplementary charge sheet. Only the compact disc is marked along with the certificate, that too because the petitioner objected contending that the compact disc could not be marked without Section 65-B certificate. The submissions of the learned High Court Government Pleader overpowers what the learned counsel for the petitioner strenuously contended, as the submission of the learned counsel for the petitioner runs counter to what the Apex Court has held in the judgments supra.”

Accordingly, the Court rejected the Petition.

Cause Title: Shri Santosh Shet v. The State of Karnataka and Anr.

Appearances:

Petitioner: Advocate Sri Gridhar H.

Respondents: HCGP Sri Thejesh

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