Supreme Court clarifies admissibility of electronic evidence and preliminary inquiries in corruption cases: State By Karnataka Lokayukta Police Station vs. M.R. Hiremath (2019) INSC 421 (01 May 2019)

Introduction

Date of the Judgment: 01 May 2019

Citation: (2019) INSC 421

Judges: Dr. Dhananjaya Y Chandrachud, J and Hemant Gupta, J

Can a criminal case be dismissed at the initial stage if the prosecution fails to produce a certificate for electronic evidence? The Supreme Court of India recently addressed this question while examining a case related to alleged corruption. This judgment clarifies when a certificate for electronic evidence is needed and the permissible scope of preliminary inquiries in corruption cases. The bench comprised of Justice Dr. Dhananjaya Y Chandrachud and Justice Hemant Gupta. The judgment was authored by Justice Dr. Dhananjaya Y Chandrachud.

Case Background

The case involves M.R. Hiremath, who was serving as Deputy Commissioner in the Land Acquisition Section of the Bangalore Development Authority (BDA). A complainant had sought denotification of certain lands acquired by BDA.

On 6 November 2012, the complainant tried to meet M.R. Hiremath, who was responsible for placing the file before the Denotification Committee. The complainant was allegedly informed by the driver of M.R. Hiremath that an advocate (accused no. 2) was acting as an agent for M.R. Hiremath in these matters.

On 8 November 2012, the complainant lodged a complaint with the Lokayukta Police, suspecting that a bribe would be demanded. The police provided a spy camera to the complainant.

On 12 and 13 November 2012, the complainant’s representatives met the second accused, who allegedly discussed the amount required to settle the deal.

On 15 November 2012, the complainant met M.R. Hiremath near the BDA office. Their conversation was recorded on the spy camera, during which a discussion about the exchange of money allegedly took place.

On 16 November 2012, a formal complaint was lodged with the Lokayukta, and a First Information Report (FIR) was registered. Subsequently, a trap was set, and the second accused was apprehended while allegedly receiving ₹5 lakhs as an initial payment of the bribe on behalf of M.R. Hiremath. A charge sheet was filed after investigation.

Timeline

Course of Proceedings

The respondent, M.R. Hiremath, filed three petitions before the High Court of Karnataka under Section 482 of the CrPC seeking to quash the criminal proceedings. The first two petitions were withdrawn, while the third was dismissed.

M.R. Hiremath then filed a discharge application under Section 239 of the CrPC before the Special Judge, Bengaluru, which was dismissed on 5 December 2016. A revision petition against this order was rejected by the High Court on the ground of maintainability.

Subsequently, M.R. Hiremath filed a petition under Section 482 of the CrPC, which was allowed by the High Court on 27 April 2017, setting aside the Special Judge’s order and quashing the proceedings against him. The High Court held that the electronic evidence was inadmissible due to the absence of a certificate under Section 65B of the Evidence Act, and that the other evidence was not convincing.

Legal Framework

The case involves the interpretation of Section 65B of the Indian Evidence Act, 1872, which deals with the admissibility of electronic records as evidence.

Section 65B of the Indian Evidence Act, 1872 states:

“Section 65(B). Admissibility of Electronic Records-
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied in
relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or
production of the original, as evidence of any contents of the
original or any fact stated therein of which direct evidence
would be admissible.
(2) The conditions referred to in the Sub-section (1) in respect
to the computer output shall be following, namely:
(a) the computer output containing the information was
produced by computer during the period over which computer
was used regularly to store or process information for the
purposes of any activities regularly carried on over that period
by the person having lawful control over the use of computer.
(b) during the said period the information of the kind
contained in the electronic record or of the kind from which
the information so contained is derived was regularly fed into
the computer in the ordinary course of the said activities.
(c) throughout the material part of the said period, the
computer was operating properly or, if not, then in respect of
any period in which it was not operating properly or was out of
operation for that part of the period, was not such to affect the
electronic record or the accuracy of its contents.
(d) The information contained in the electronic record
reproduces or is derived from such information fed into
computer in ordinary course of said activities.
(3) Where over any period, the function of storing and
processing information for the purposes of any activities
regularly carried on over that period as mentioned in Clause
(a) of Sub-section (2) was regularly performed by the
computers, whether-
(a) by a combination of computer operating over that period,
or
(b) by different computers operating in succession over that
period; or
(c) by different combinations of computers operating in
succession over that period of time; or
(d) in any other manner involving successive operation over
that period, in whatever order, of one or more computers and
one or more combinations of computers,
all the computers used for that purpose during that period
shall be treated for the purpose of this section as constituting
a single computer and any reference in the section to a
computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement
in evidence by virtue of this section, a certificate doing any of
the following things, that is to say,—
(a) identifying the electronic record containing the statement
and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be appropriate for
the purpose of showing that the electronic record was
produced by a computer;
(c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the
relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter
stated in the certificate; and for the purposes of this sub-
section it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer if it
is supplied thereto in any appropriate form and whether it is
so supplied directly or (with or without human intervention) by
means of any appropriate equipment;
(b) whether in the course of activities carried on by any official
information is supplied with a view to its being stored or
processed for the purposes of those activities by a computer
operated otherwise than in the course of those activities, that
information, if duly supplied to that computer, shall be taken to
be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced
by a computer whether it was produced by it directly or (with
or without human intervention) by means of any appropriate
equipment.
Explanation.—For the purposes of this section any reference
to information being derived from other information shall be a
reference to its being derived therefrom by calculation,
comparison or any other process.”

The judgment also discusses Section 154 of the Code of Criminal Procedure, 1973 (CrPC), which deals with the registration of First Information Reports (FIRs) based on information relating to the commission of a cognizable offense.

Section 154 of the CrPC states:

“154 Information in cognizable cases.- (1) Every information relating to the commission of a cognizable offence, if
given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and
be read over to the informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept
by such officer in such form as the State Government may prescribe in this behalf;”

Additionally, the judgment references Section 239 of the CrPC, which pertains to the discharge of an accused in warrant cases.

Arguments

The appellant, the State by Karnataka Lokayukta Police, argued that:

• The High Court erred in requiring a Section 65B certificate at the stage of filing the charge sheet, as it is only needed when the electronic evidence is produced during the trial.
• The prosecution has other evidence besides the electronic record that shows the involvement of both the accused.
• The use of the spy camera was part of a preliminary inquiry, as permitted by the Supreme Court’s decision in Lalita Kumari v. Government of Uttar Pradesh, to determine if a cognizable offense was committed.

The respondent, M.R. Hiremath, argued that:

• The investigation began before the FIR was registered, making the evidence collected before the FIR inadmissible.
• The preliminary inquiry, as allowed by Lalita Kumari, does not allow the investigating officer to collect evidence before the FIR is lodged.
• The prosecution has failed to produce a copy of the certificate under Section 65B of the Evidence Act, even after seven years.
• In the absence of a certificate under Section 65B, there is an absence of material hence a discharge is warranted under Section 231 of the CrPC.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was correct in holding that a certificate under Section 65B of the Evidence Act is required at the stage of filing the charge sheet?
2. Whether the investigation had commenced before the registration of the FIR, making the evidence collected before the FIR inadmissible?
3. Whether the High Court was correct in quashing the proceedings based on the absence of a Section 65B certificate and the perceived weakness of other evidence?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court held that the High Court was incorrect in quashing the proceedings.

The Supreme Court analyzed the authorities and held that:

• The High Court erred in holding that a certificate under Section 65B of the Evidence Act was required at the stage of filing the charge sheet. The certificate is only required when the electronic record is sought to be produced as evidence during the trial.
• The High Court failed to consider other material relied upon by the prosecution, besides the electronic evidence.
• The actions of the investigating officer in handing over the spy camera were part of a preliminary inquiry, which is permissible under the Lalita Kumari judgment, and not the commencement of the investigation.

The court relied on the following authorities:

• Anvar P.V. v P.K. Basheer [CITATION: (2014) 10 SCC 473]* The Supreme Court reiterated that electronic evidence must be proven as per the procedure under Section 65B of the Indian Evidence Act.
• Union of India and Others v CDR Ravindra V Desai [CITATION: (2018) 16 SCC 272]* The court emphasized that the non-production of a certificate under Section 65B at an earlier stage is a curable defect.
• Sonu alias Amar v State of Haryana [CITATION: (2017) 8 SCC 570]* The court held that if an objection was raised regarding the lack of a certificate, the prosecution could be given an opportunity to rectify the deficiency.
• P. Sirajuddin v State of Madras [CITATION: (1970) 1 SCC 595]* The court highlighted the importance of a preliminary inquiry before lodging an FIR in cases of alleged corruption by public servants.
• Lalita Kumari v Government of Uttar Pradesh [CITATION: (2014) 2 SCC 16]* The court reiterated that preliminary inquiries are permissible in certain cases, including corruption cases, to ascertain if a cognizable offense has been committed.
• State of Tamil Nadu v N Suresh Rajan [CITATION: (2014) 11 SCC 709]* The court stated that at the stage of considering a discharge application, the court must assume the material brought on record by the prosecution is true and evaluate it to determine if the facts disclose the necessary ingredients of the offense.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The correct interpretation of Section 65B of the Indian Evidence Act, which mandates the production of a certificate only when the electronic record is sought to be used as evidence during the trial, not at the stage of filing the charge sheet.
• The understanding that a preliminary inquiry is permissible in corruption cases to ascertain if a cognizable offense has been committed, and that such an inquiry does not constitute the commencement of the investigation.
• The need to consider all the material on record, not just the electronic evidence, when deciding on a discharge application.
• The principle that a mini-trial is not permissible at the stage of considering a discharge application.

Fact:Law Ratio

Logical Reasoning

Key Takeaways

• A certificate under Section 65B of the Indian Evidence Act is required only when electronic evidence is presented during the trial, not at the stage of filing a charge sheet.
• Preliminary inquiries are permissible in corruption cases to determine if a cognizable offense has been committed, and such inquiries do not constitute the commencement of an investigation.
• Courts must consider all the material on record, not just electronic evidence, when deciding on a discharge application.
• A mini-trial is not permissible at the stage of considering a discharge application.

Directions

The Supreme Court allowed the appeal, set aside the High Court’s judgment, and upheld the trial court’s order dismissing the discharge application filed by the respondent.

Development of Law

The ratio decidendi of this case is that a certificate under Section 65B of the Indian Evidence Act is required only when the electronic record is sought to be used as evidence during the trial, not at the stage of filing the charge sheet. Further, it clarifies that a preliminary inquiry does not constitute commencement of investigation.

Conclusion

The Supreme Court’s judgment clarifies the procedural aspects of using electronic evidence and conducting preliminary inquiries in corruption cases. It emphasizes that a Section 65B certificate is not required at the charge sheet stage and that preliminary inquiries are permissible to ascertain if a cognizable offense has been committed. The court also reiterated that all evidence must be considered when deciding on a discharge application.