STATE BY KARNATAKA LOKAYUKTA POLICE STATION, BENGALURU versus M.R. HIREMATH

Citation: [2019] 8 S.C.R. 713 · Decided: 01-05-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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STATE BY KARNATAKA LOKAYUKTA POLICE STATION,
BENGALURU
v.
M.R. HIREMATH
(Criminal Appeal No. 819 of 2019)
MAY 01, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Evidence Act, 1872: s. 65B(4) – Admissibility of electronic
records – Secondary evidence of the electronic record based on the
spy camera – Requirement of production of certificate u/s. 65B –
When – Held: Requirement of producing a certificate arises when
the electronic record is sought to be used as evidence in the trial –
On facts, allegation that a trap was set up and second accused was
apprehended while receiving money on behalf of the respondent
towards initial payment of bribe – Complainant is alleged to have
met the respondent during the course of the meeting and 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 furnished by the
complainant would form the basis of lodging a first information
report – No investigation as such commenced before the lodging of
FIR – High Court erred in holding that the failure to produce a
certificate u/s. 65B(4) at the stage when the charge-sheet was filed
was fatal to the prosecution – Order of the High Court set aside –
Order passed by the trial judge dismissing the discharge application
filed by the respondent maintained.
Allowing the appeal, the Court
HELD: 1.1 Section 65B(4) of the Evidence Act, 1872 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’s case holds
that the requirement of producing a certificate arises when the
   [2019] 8 S.C.R. 713
713
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SUPREME COURT REPORTS
[2019] 8 S.C.R.
electronic record is sought to be used as evidence. In CDR
Ravindra V Desai’s case it was held that non-production of a
certificate under Section 65B on an earlier occasion is a curable
defect. Having regard to the said principle of law, the High Court
erred in coming to the conclusion that the failure to produce a
certificate under Section 65B(4) 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. [Paras 14, 16] [722-B, C, E, F; 723-A-B]
Anvar P.V. v P.K. Basheer (2014) 10 SCC 473 : [2014]
11 SCR 399 ; Union of India and Others v CDR
Ravindra V Desai (2018) 16 SCC 272 – relied on.
1.2 In the instant 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 15.11.2012
was a preliminary enquiry to ascertain whether the information
reveals a cognizable offence. The High Court erred on all the
above counts. The High Court 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 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 took recourse to a preliminary
inquiry. This was consistent with the decision in Lalita Kumari’s
case. [Paras 21, 22] [726-E-H]
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Lalita Kumari v Government of Uttar Pradesh (2014) 2
SCC 1 : [2013] 14 SCR 713 - relied on.
1.3 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 CrPC. It is a settled
principle of law that at the stage of 

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