Delay Fatal Only If Parties Attempt To Obtain Any Unfair Advantage : Kerala High Court

The Kerala High Court recently ruled that a delay in filing an application only becomes fatal if by allowing such application, the applicant obtains an unfair benefit or if any prejudice will be caused to the opposite party in the case. 

Justice Kauser Edappagath while partly allowing a petition seeking to re-examine 7 witnesses and summon 9 additional witnesses observed that the delay in filing the application could be discounted since the prayer herein was only to produce the original documents which were already marked.

" It is true that there is a delay in filing the application. The matter of delay is fatal only if the parties attempt to obtain any unfair advantage. In this case, no new document is attempted to be introduced. The only prayer is to produce the original of the documents which were already marked."

The Court noted that since by producing the originals, no undue advantage will be obtained by the prosecution and no prejudice would be caused to any of the accused, the prayer could be allowed. 

The decision was rendered in a case where a popular Malayam actress was allegedly abducted and sexually assaulted by the accused herein pursuant to a criminal conspiracy apparently devised by actor Dileep. Dileep is the 8th accused and the proceedings of this case are before the trial court. 

The prosecution's allegation was that the accused contacted each other frequently; other witnesses immediately prior, during and subsequent to the commission of the crime using various mobile phones. 

To prove the use of these phones, the photostat copies of the customer application forms of these mobile numbers were produced along with the final report and marked during the evidence subject to proof before the trial court. 

Since the original application forms were in the custody of respective mobile companies, the respective nodal officers were sought to be summoned to produce the original of the customer application forms. However, the trial court rejected this holding that there was undue delay in filing the petition and no satisfactory explanation was shown for non-production of the original till filing of the petition.

The Court noted that the photocopies of the original customer application forms were produced along with the final report and copies of the same were furnished to the accused. All that the prosecution wanted now was to summon the original documents of the same. 

"It is true that the original of the customer application forms mentioned above were not produced along with the final report. However, it is trite that the documents which were not produced along with the final report can be produced even after submission of the final report."

It was also reiterated that there is no requirement of procurement of a certificate under Section 65B at the time of taking the electronic record and the same could be procured later and submitted at the time of production of such document in evidence, placing reliance on the Supreme Court's decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others. 

Accordingly, the prayer was allowed and the nodal officers were allowed to be summoned for examination. 

DGP T.A.Shaji appeared for the State while the respondents were represented by Senior Advocate B.Raman Pillai, Advocates Pratheeksh Kurup, Alex Joseph, M.A.Vinod, A.Mohammed and K.V.Sabu.

Other Relevant Findings: 

The Court also noted that as per Arjun Pandiyrao (supra), in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the trial court must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. 

Therefore, it was held: 

" in a case where the person authorized to issue certificate u/s 65B(4) of the Evidence Act issues a defective certificate, or a certificate not in conformity with the said provision, a direction to the said person to issue a proper certificate in terms of the provision is permissible."

The Court further reiterated that special provisions of Section 65A and Section 65B of the Evidence Act is a complete code in themselves and that a written certificate under Section 65B(4) is sine qua non for admissibility of evidence by way of an electronic record.

However, as clarified by the Apex Court in Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473], the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced.

Case Title: State of Kerala v. Sunil N.S. @ Pulsar Suni & Ors.

Citation: 2022 LiveLaw (Ker) 63

Click Here To Read/Download The Judgment