[Electronic Evidence] Non-Filing Of Certificate U/S 65B Evidence Act Will Not Vitiate Trial: Karnataka High Court Reiterates

The Karnataka High Court has reiterated that non-filing of a certificate under section 65-B of the Evidence Act at the time of production of electronic evidence, would not vitiate the court proceedings.

A single-judge bench of Justice M Nagaprasanna dismissed the petition filed by Santhosh Shet, a teacher who is charged under provisions of the Protection of Children from Sexual Offences Act (POCSO) for raping a minor girl.

It was stated that as per the complaint of the victim's brother, the teacher had raped the student and recorded the said act on his mobile phone, while threatening the victim not to reveal the same to anyone.

It was stated that long after the incident was over, accused No.2 shared the video with the cousin brother of the victim.

It was argued that while filing the chargesheet, the police failed to include the CD containing the alleged video as part of the evidence. After framing of charges, the prosecution sought to get the CD marked in evidence but the petitioner objected stating that it did not accompany a certificate under Section 65-B of the Indian Evidence Act.

Following this, the police filed an additional chargesheet containing only the Section 65-B certificate and the CD.  The prosecution moved an application seeking recall of the victim and complainant and the court allowed the application filed by the prosecution. The accused has challenged the aforesaid order before the High Court.

The petitioner contended that once the charge sheet is filed, charges are framed and evidence commences, the Court cannot permit the filing of a supplementary charge sheet.

The prosecution opposed the plea saying that the non-filing of a certificate under Section 65-B of the Indian Evidence Act to mark the electronic evidence, is a curable defect and the certificate can be produced at any time during the trial.

Findings:

On the issue about whether filing of electronic evidence without a certificate under Section 65-B of the Evidence Act would vitiate the evidence or the resultant proceedings, The court referred to the Apex court judgements and stated that electronic evidence can be marked at any time during the trial.

The court said “Under Section 311 of the Cr.P.C., marking of documents, 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.”

Dealing with the second contention raised by the petitioner that once evidence commences after the framing of charges, there cannot be a supplementary charge sheet, the court noted that while an additional charge sheet cannot be filed, alteration of charges would be allowed under Section 215 of the CrPC.

Then it held “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.”

Accordingly, it rejected the petition.

Appearance: Advocate Giridhar H for Petitioner.

HCGP THEJESH P for Respondent.

Citation No: 2024 LiveLaw (Kar) 363

Case Title: Santhosh Shet AND State of Karnataka

Case No: WRIT PETITION No.18372 OF 2024

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