STATE BY KARNATAKA LOKAYUKTA POLICE STATION, BENGALURU versus M.R. HIREMATH on 1 May 2019

1. Leave granted.

2. This appeal arises from a judgment of a learned Single Judgeof the High Court of Karnataka dated 27 April 2017 by which a petitionunder Section 482 of the Code of Criminal Procedure 1973[1] was allowed.CWhile doing so, the High Court set aside an order dated 5 December2016 of the Special Judge, Bengaluru rejecting the application of therespondent for discharge under Section 239 of the CrPC.

3. The respondent was at the material time serving as DeputyCommissioner in the Land Acquisition Section of Bangalore DevelopmentDAuthority[2]. BDA had acquired certain lands for the formation of a layouton the outskirts of Bengaluru. The complainant moved the court fordenotification of the lands following which, a direction had been issued.Accordingly, the complainant made an application to BDA fordenotification of the lands.

4. The case of the prosecution is that on 6 November 2012, theEcomplainant attempted to meet the respondent (accused no.1) by whomthe file was to be placed before the Denotification Committee. It isalleged that though the complainant was not allowed to meet therespondent, he met his driver through whom he got to know that suchcases were being ‘mediated’ by the second accused, an advocateFpurporting to act as the agent of the respondent. A complaint was lodgedwith the Lokayukta Police on 8 November 2012 apprehending that abribe would be asked for by the second accused. The police handedover a spy camera together with the instructions to be followed. It isalleged that a meeting of the second accused was arranged with arepresentative of the complainant. On 12 and 13 November 2012, aGmeeting took place with the second accused who is stated to haveinformed the representatives of the complainant of the amount whichwill be charged for the settlement of the deal. The prosecution alleges 1 ‘CrPC’H2 ‘BDA’

that on 15 November 2012 the complainant met the respondent at about7.30 pm near the BDA office. The conversation between the complainantand the respondent was recorded on the spy camera in the course ofwhich, it has been alleged, there was some discussion in regard to theamount to be exchanged for the completion of the work.

5. On 16 November 2012, a complaint was lodged before theLokayukta and a first information report was registered. Subsequently,it is alleged that a trap was set up and the second accused wasapprehended while receiving an amount of Rupees five lakhs on behalfof the respondent towards an initial payment of the alleged bribe. Acharge sheet was filed after investigation.

6. Charges were framed for offences punishable under Sections7, 8, 13(1)(d) read with section 13(2) of the Prevention of CorruptionAct, 1988.

7. The respondent instituted three successive petitions underSection 482 of CrPC before the High Court of Karnataka[3] for quashingof the criminal proceedings. The first two petitions were dismissed aswithdrawn on 26 February 2013, leaving it open to the respondent topursue his remedies for seeking a discharge from the proceedings. TheHigh Court dismissed the third petition.

8. The first respondent then filed a discharge application undersection 239 of the CrPC before the Special Judge, Bengaluru. The trialjudge dismissed the application by an order dated 5 December, 2016.This order was questioned in revision before the High Court. The revisionwas rejected on the ground of maintainability. The respondent instituteda petition under Section 482 of the CrPC which has resulted in theimpugned order of the learned Single Judge dated 27 April 2017.

9. The learned Single Judge has quashed the proceedings againstthe respondent on the ground that (i) in the absence of a certificateunder Section 65B of the Evidence Act, secondary evidence of theelectronic record based on the spy camera is inadmissible in evidence;(ii) the prosecution is precluded from supplying any certification “at thispoint of time” since that would be an afterthought; and (iii) the case ofthe prosecution that apart from the electronic evidence, other evidenceis available, is on its face unconvincing. The learned judge then held that 3 Criminal Petition No 7562/2012, Writ Petition No 11252/2013 and Writ PetitionNo. 20394/2013

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Athe second accused who was the subject of the trap proceedings wasnot shown to have named the respondent as being instrumental in theepisode. On this finding the proceedings have been quashed.10. Assailing the correctness of the judgment of the High Court,Mr. Joseph Aristotle S., learned counsel appearing for the appellant,Bsubmits that (i) the High Court was manifestly in error in holding that acertificate under Section 65B was warranted at this stage; (ii) a certificateunder Section 65B would be required to be produced at the stage whenelectronic evidence is produced in the course of evidence at the trial andhence the stage at which the High Court sought to apply the provisionwas premature; (iii) the prosecution is relying, apart from electronicCevidence pertaining to the spy camera, on other material which primafacie shows the involvement of the first and the second accused; (iv)without considering the nature of that evidence, the High Court preventedthe prosecution from placing reliance on such material on the basis of abald averment that it did not appear to be convincing; (v) in handing overDthe spy camera to the complainant and the process which followed byrecording what transpired at the meeting with the respondent on 15November 2012, the investigating officer was only conducting apreliminary inquiry of the nature that is contemplated by the decision ofthis Court in Lalita Kumari v Government of Uttar Pradesh[4]; and(vi) the purpose of the preliminary inquiry was only to enable theEprosecution to ascertain whether a cognizable offence was made out. Inother words, the utilization of the spy camera during the course of thepreliminary inquiry was in the nature of a pre-trap mahazar which fellwithin the exceptions which have been carved out in the decision inLalita Kumari. The investigation, it has been urged, would commenceFonly thereafter having due regard to the provisions contained in Section154 of the CrPC.

11. On the other hand, while supporting the view which has beentaken by the learned Single Judge of the High Court, Mr. Basava PrabhuPatil, learned Senior Counsel appearing for the respondent, submits thatG(i) in the present case the investigation had commenced before theregistration of an FIR under Section 154 of the CrPC. The events whichtranspired before 16 November 2012 before the FIR was registered andthe collection of material would be inadmissible in evidence; (ii) whilethe decision of the Constitution Bench in Lalita Kumari allows a H4 (2014) 2 SCC 1

preliminary inquiry particularly in a case involving corruption under thePrevention of Corruption Act, the Trial Court erred in inferring from thedecision of this Court that the investigating officer is entitled to collectevidence even before the FIR is lodged; (iii) there is nothing to indicate,even the existence of an entry in the Station Diary; (iv) in consequence,the decision of the trial court was inconsistent with the principle enunciatedin Lalita Kumari, which warranted interference by the High Court inexercise of its jurisdiction under Section 482 of the CrPC; (v) as amatter of fact the trial against the second accused has proceeded anddespite a lapse of seven years the prosecution has failed to produce acopy of the certificate under Section 65B of the Evidence Act; and (vi)in the absence of a certificate under Section 65B, there is an absence ofmaterial hence a discharge is warranted under Section 231 of the CrPC.

12. These submissions fall for consideration.

12. These submissions fall for consideration.

13. The fundamental basis on which the High Court proceeded toquash the proceedings is its hypothesis that Section 65B, which requiresthe production of a certificate for leading secondary evidence of anelectronic record mandate the production of such a certificate at thisstage in the absence of which, the case of the prosecution is liable tofail. Section 65B reads as follows :

“Section 65(B). Admissibility of Electronic Records-

(1) Notwithstanding anything contained in this Act, any informationcontained in an electronic record which is printed on a paper,stored, recorded or copied in optical or magnetic media producedby a computer (hereinafter referred to as the computer output)shall be deemed to be also a document, if the conditions mentionedin this section are satisfied in relation to the information andcomputer in question and shall be admissible in any proceedings,without further proof or production of the original, as evidence ofany contents of the original or any fact stated therein of whichdirect evidence would be admissible.

(2) The conditions referred to in the Sub-section (1) in respect tothe computer output shall be following, namely:

(a) the computer output containing the information was producedby computer during the period over which computer was usedregularly to store or process information for the purposes of any

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activities regularly carried on over that period by the person havinglawful control over the use of computer.

(b) during the said period the information of the kind contained inthe electronic record or of the kind from which the information socontained is derived was regularly fed into the computer in theordinary course of the said activities.

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(c) throughout the material part of the said period, the computerwas operating properly or, if not, then in respect of any period inwhich it was not operating properly or was out of operation forthat part of the period, was not such to affect the electronic recordor the accuracy of its contents.

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(d) The information contained in the electronic record reproducesor is derived from such information fed into computer in ordinarycourse of said activities.

(3) Where over any period, the function of storing and processinginformation for the purposes of any activities regularly carried onover that period as mentioned in Clause (a) of Sub-section (2)was regularly performed by the computers, whether- D

(a) by a combination of computer operating over that period, or (b) by different computers operating in succession over that period;or E

(c) by different combinations of computers operating in successionover that period of time; or (d) in any other manner involving successive operation over thatperiod, in whatever order, of one or more computers and one ormore combinations of computers, F

all the computers used for that purpose during that period shall betreated for the purpose of this section as constituting a singlecomputer and any reference in the section to a computer shall beconstrued accordingly.

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(4) In any proceedings where it is desired to give a statement inevidence by virtue of this section, a certificate doing any of thefollowing things, that is to say,—

(a) identifying the electronic record containing the statement andHdescribing the manner in which it was produced;

(b) giving such particulars of any device involved in the productionof that electronic record as may be appropriate for the purpose ofshowing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditionsmentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsibleofficial position in relation to the operation of the relevant deviceor the management of the relevant activities (whichever isappropriate) shall be evidence of any matter stated in thecertificate; and for the purposes of this sub-section it shall besufficient for a matter to be stated to the best of the knowledgeand 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 issupplied thereto in any appropriate form and whether it is sosupplied directly or (with or without human intervention) by meansof any appropriate equipment; (b) whether in the course of activities carried on by any officialinformation is supplied with a view to its being stored or processedfor the purposes of those activities by a computer operatedotherwise than in the course of those activities, that information,if duly supplied to that computer, shall be taken to be supplied to itin the course of those activities;

(c) a computer output shall be taken to have been produced by acomputer whether it was produced by it directly or (with or withouthuman intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference toinformation being derived from other information shall be areference to its being derived therefrom by calculation, comparisonor any other process.”

14. The provisions of Section 65B came up for interpretation beforea three judge Bench of this Court in Anvar P.V. v P.K. Basheer[5].Interpreting the provision, this Court held :

“Any documentary evidence by way of an electronic record under

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Athe Evidence Act, in view of Sections 59 and 65-A, can be provedonly in accordance with the procedure prescribed under Section65-B. Section 65-B deals with the admissibility of the electronicrecord. The purpose of these provisions is to sanctify secondaryevidence in electronic form, generated by a computer. “

BSection 65B(4) is attracted in any proceedings “where it isdesired to give a statement in evidence by virtue of this section”.Emphasising this facet of sub-section (4) the decision in Anvar holdsthat the requirement of producing a certificate arises when the electronicrecord is sought to be used as evidence. This is clarified in the followingextract from the judgment :C

“Most importantly, such a certificate must accompany theelectronic record like computer printout, compact disc (CD),video compact disc (VCD), pen drive, etc., pertaining to whicha statement is sought to be given in evidence, when thesame is produced in evidence. All these safeguards are takenDto ensure the source and authenticity, which are the twohallmarks pertaining to electronic record sought to be usedas evidence. Electronic records being more susceptible totampering, alteration, transposition, excision, etc., without suchsafeguards, the whole trial based on proof of electronic recordsEcan lead to travesty of justice.” (emphasis supplied)

15. The same view has been reiterated by a two judge Bench ofthis Court in Union of India and Others v CDR Ravindra V Desai[6].The Court emphasised that non-production of a certificate under Section65B on an earlier occasion is a curable defect. The Court relied uponFthe earlier decision in Sonu alias Amar v State of Haryana[7], in whichit was held :

“The crucial test, as affirmed by this Court, is whether the defectcould have been cured at the stage of marking thedocument. Applying this test to the present case, if anGobjection was taken to the CDRs being marked without acertificate, the Court could have given the prosecution anopportunity to rectify the deficiency.”

(emphasis supplied)

6 (2018) 16 SCC 272H7 (2017) 8 SCC 570

16. Having regard to the above principle of law, the High Courterred in coming to the conclusion that the failure to produce a certificateunder Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production ofsuch a certificate would arise when the electronic record is sought to beproduced in evidence at the trial. It is at that stage that the necessity ofthe production of the certificate would arise.

17. Apart from the above feature of the case, on which it isabundantly clear that the High Court has erred, we must also notice thesubmission of the appellants that independent of the electronic record,the prosecution is relying on other material. The existence of such materialhas been adverted to in the charge-sheet. Details of the documents onwhich the prosecution sought to place reliance find specific mention inthe charge-sheet particularly at items 15, 25 and 28 to 31. The HighCourt rejected this submission of the appellant on the specious assertionthat “it is found that, on the face of it, it is not convincing”.

18. That leads us to the next limb of a significant submission whichhas been made on behalf of the respondent by Mr Basava Prabu Patil,learned senior counsel, which merits close consideration. It was urgedon behalf of the respondent that the exercise of the investigating officerhanding over a spy camera to the complainant on 15 November 2012would indicate that the investigation had commenced even before anFIR was lodged and registered on 16 November 2012. This, it has beensubmitted, is a breach of the parameters which have been prescribed bythe judgment of the Constitution Bench of this Court in Lalita Kumari.

19. Before we advert to the decision of the Constitution Bench, itis necessary to note that in the earlier decision of this Court in P.Sirajuddin v State of Madras[8], the importance of a preliminary inquirybefore the lodging of a first information report in a matter involving allegedcorruption by a public servant was emphasized. This Court observed :

“17… Before a public servant, whatever be his status, is publiclycharged with acts, of dishonesty which amount to seriousmisdemeanour or misconduct of the type alleged in this case anda first information is lodged against him, there must be somesuitable preliminary enquiry into the allegations by a responsibleofficer. The lodging of such a report against a person, specially 8 (1970) 1 SCC 595

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Aone who like the appellant occupied the top position in adepartment, even if baseless, would do incalculable harm not onlyto the officer in particular but to the department he belonged to, ingeneral. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras andthe said department was entrusted with enquiries of this kind, noBexception can be taken to an enquiry by officers of this departmentbut any such enquiry must proceed in a fair and reasonable manner.The enquiring officer must not act under any preconceived ideaof guilt of the person whose conduct was being enquired into orpursue the enquiry in such a manner as to lead to an inferenceCthat he was bent upon securing the conviction of the said personby adopting measures which are of doubtful validity or sanction.The means adopted no less than the end to be achieved must beimpeccable. In ordinary departmental proceedings against aGovernment servant charged with delinquency, the normal practicebefore the issue of a charge sheet is for some one in authority toDtake down statements of persons involved in the matter and toexamine documents which have a bearing on the issue involved.It is only thereafter that a charged sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for thepurpose of finding out whether criminal proceedings are to beEresorted to the scope thereof must be limited to the examinationof persons who have knowledge of the affairs of the delinquentofficer and documents bearing on the same to -find out whetherthere is prima facie evidence of guilt of the officer. Thereafterthe ordinary law of the land must take its course and further inquirybe proceeded with in terms of the Code of Criminal Procedure byFlodging a first information report.”

20. P Sirajuddin (supra) emphasized the requirement of apreliminary inquiry, where a public servant is alleged to have committedan act of dishonesty involving a serious misdemeanour. The purpose of a preliminary inquiry is to ascertain whether a cognizable offence hasGbeen made out on the basis of which a first information report can belodged. The basis of a first information report under Section 154 of theCrPC[9] is information relating to the commission of a cognizable offence 9 154 Information in cognizable cases.- (1) Every information relating to the commissionof a cognizable offence, if given orally to an officer in charge of a police station, shall beHreduced to writing by him or under his direction, and be read over to the informant; and

which is furnished to an officer-in-charge of the police station. It is witha view to ascertain whether a cognizable offence seems to have beenimplicated in a case involving an alleged act of corruption by a publicservant that a preliminary inquiry came to be directed in the judgment ofthis Court in P Sirajuddin. The decision in P Sirajuddin was recognizedand followed by the Constitution Bench in Lalita Kumari. TheConstitution Bench held that while Section 154 of the CrPC postulatesmandatory registration of a first information report on the receipt ofinformation indicating the commission of a cognizable offence yet therecould be situations where a preliminary inquiry may be required. Indicatingthe cases where a preliminary inquiry may be warranted, this Courtheld :

“120.5. The scope of preliminary inquiry is not to verify theveracity or otherwise of the information received but only toascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry isto be conducted will depend on the facts and circumstances ofeach case. The category of cases in which preliminary inquirymay be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminalprosecution, for example, over 3 months delay in reporting thematter without satisfactorily explaining the reasons for delay.”

The purpose of conducting a preliminary inquiry has beenelaborated in the following extract :

“Therefore, in view of various counter claims regarding registrationor non-registration, what is necessary is only that the informationgiven to the police must disclose the commission of a cognizableoffence. In such a situation, registration of an FIR is mandatory.

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 abook to be kept by such officer in such form as the State Government may prescribe inthis behalf;

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However, if no cognizable offence is made out in the informationgiven, then the FIR need not be registered immediately and perhapsthe police can conduct a sort of preliminary verification or inquiryfor the limited purpose of ascertaining as to whether a cognizableoffence has been committed. But, if the information given clearlymentions the commission of a cognizable offence, there is no otheroption but to register an FIR forthwith. Other considerations arenot relevant at the stage of registration of FIR, such as, whetherthe information is falsely given, whether the information is genuine,whether the information is credible etc. These are the issues thathave to be verified during the investigation of the FIR. At thestage of registration of FIR, what is to be seen is merely whetherthe information given ex facie discloses the commission of acognizable offence. If, after investigation, the information given isfound to be false, there is always an option to prosecute thecomplainant for filing a false FIR.”

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D21. In the present case, on 15 November 2016, the complainant isalleged to have met the respondent. During the course of the meeting, aconversation was recorded on a spy camera. Prior thereto, theinvestigating 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 preliminaryEinquiry, whether the information which was furnished by the complainantwould form the basis of lodging a first information report. In other words,the purpose of the exercise which was carried out on 15 November2012 was a preliminary enquiry to ascertain whether the informationreveals a cognizable offence.F

22. The High Court has in the present case erred on all the abovecounts. The High Court has erred in coming to the conclusion that in theabsence of a certificate under Section 65B when the charge sheet wassubmitted, the prosecution was liable to fail and that the proceeding wasrequired to be quashed at that stage. The High Court has evidently lostGsight of the other material on which the prosecution sought to placereliance. Finally, no investigation as such commenced before the lodgingof the first information report. The investigating officer had takenrecourse to a preliminary inquiry. This was consistent with the decisionin Lalita Kumari.

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23. The High Court ought to have been cognizant of the fact thatthe trial court was dealing with an application for discharge under theprovisions of Section 239 of the CrPC. The parameters which governthe exercise of this jurisdiction have found expression in several decisionsof this Court. It is a settled principle of law that at the stage of consideringan application for discharge the court must proceed on the assumptionthat the material which has been brought on the record by the prosecutionis true and evaluate the material in order to determine whether the factsemerging from the material, taken on its face value, disclose the existenceof the ingredients necessary to constitute the offence. In the State ofTamil Nadu v N Suresh Rajan[10], adverting to the earlier decisions onthe subject; this Court held :

“29…At this stage, probative value of the materials has to begone into and the court is not expected to go deep into the matterand hold that the materials would not warrant a conviction. In ouropinion, what needs to be considered is whether there is a groundfor presuming that the offence has been committed and not whethera ground for convicting the accused has been made out. To put itdifferently, if the court thinks that the accused might havecommitted the offence on the basis of the materials on record onits probative value, it can frame the charge; though for conviction,the court has to come to the conclusion that the accused hascommitted the offence. The law does not permit a mini trial at thisstage.”

24. For the above reasons we are of the view that the appealwould have to be allowed. We accordingly allow the appeal and setaside the judgment and order of the High Court dated 24 April 2017 inCriminal Writ Petition No 3202 of 2017. We accordingly maintain theorder passed by the learned trial judge on 5 December 2016 dismissingthe discharge application filed by the respondent.

Nidhi Jain

Appeal allowed.

10 (2014) 11 SCC 709

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