STATE OF KARNATAKAversusT. NASEER @ NASIR @ THANDIANTAVIDA NASEER @ UMARHAZI @ HAZI & ORS.

                 [2023] 14 S.C.R. 230 : 2023 INSC 988



                            CASE DETAILS

                       STATE OF KARNATAKA
                                     v.
    T. NASEER @ NASIR @ THANDIANTAVIDA NASEER @
               UMARHAZI @ HAZI & ORS.
                   (Criminal Appeal No. 3456 Of 2023)
                          NOVEMBER 06, 2023
           [VIKRAM NATH AND RAJESH BINDAL, JJ.]

                             HEADNOTES

     Issue for consideration: The High Court rejected the applications
filed by the prosecution u/s. 311 of the Cr.P.C., seeking recall of PW-189
and to permit the prosecution to produce the report and the certificate u/s.
65B of the Evidence Act, 1872.
      Code of Criminal Procedure, 1973 – s. 311 – Evidence Act, 1872
– s.65B – A serial bomb blasts took place – Certain electronic devices
were seized – Trial Court held electronic devices inadmissible in
evidence – Thereafter, an application was filed in the court to allow
the prosecution to recall PW-189 and to produce the certificate u/s.
65B of the Act in evidence – Application rejected by the Trial Court
holding same to be delayed – High Court upheld the order of the Trial
Court – Propriety:
      Held: The courts below had gone on a wrong premise to opine that
there was delay of six years in producing the certificate whereas there was
none – The matter was still pending when the application to resummon PW-
189 and produce the certificate u/s. 65B of the Act was filed u/s. 311 of the
Cr.P.C. – In fact, report received from CFSL on the basis of the contents
of electronic devices dated 29.11.2010 was already placed before the Trial
Court on 16.10.2012 – It was only vide order dated 07.04.2017 that the
report prepared on the basis of electronic devices was refused to be taken on
record by the Trial Court in absence of certificate issued u/s. 65B – It was
during the examination in chief of PW-189 that the report of CFSL dated
                                     230
STATE OF KARNATAKA v. T. NASEER @ NASIR @ THANDIANTAVIDA 231
               NASEER @ UMARHAZI @ HAZI


29.11.2010 was sought to be exhibited – When the aforesaid witness was
further examined in chief on 27.04.2017, the report u/s. 65B was produced
to which objection was raised by the counsel of the defence and vide order
dated 20.06.2017 the Trial Court declined to take the certificate, issued u/s.
65B of the Act, on record – It was thereafter that an application was filed
u/s. 311 of the Cr.P.C. for recalling PW-189 and produce the certificate
u/s. 65B of the Act on record – The same was rejected by the Trial Court
– From the aforesaid facts, it cannot be inferred that there was delay of six
years in producing the certificate – A certificate u/s. 65B of the Act, which
is sought to be produced by the prosecution is not an evidence which has
been created now – It is meeting the requirement of law to prove a report
on record – By permitting the prosecution to produce the certificate u/s.
65B of the Act at this stage will not result in any irreversible prejudice to
the accused – The accused will have full opportunity to rebut the evidence
led by the prosecution. [Paras 12, 13, 14 and 15]

       LIST OF CITATIONS AND OTHER REFERENCES

      Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473: [2014] 11 SCR 399;
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC
1: [2020] 7 SCR 180; State of Karnataka v. M.R. Hiremath, 2019 (7) SCC
515: [2019] 8 SCR 713 – relied on.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.3456 of 2023.
    From the Judgment and Order dated 27.01.2022 of the High Court of
Karnataka at Bengaluru in CRLP No.2585 of 2019.
     Appearances:
      Aman Panwar, AAG, Shivam Singh Baghel, D. L. Chidananda, Advs.
for the Appellant.
    Balaji Srinivasan, Ms. Sukanya Joshi, Haris Beeran, Azhar Assees,
Anand B. Menon, Radha Shyam Jena, Advs. for the Respondents.
232             SUPREME COURT REPORTS                            [2023] 14 S.C.R.



         JUDGMENT / ORDER OF THE SUPREME COURT

                                  JUDGMENT

       RAJESH BINDAL, J.
       1. Leave granted.
      2. Vide order1 passed by the High Court2 in Criminal Petition No. 2585
of 2019 filed by the appellant-State, an order dated 18.01.2018 passed by
the Trial Court3 was upheld. Vide the aforesaid order an applications4 filed
by the prosecution under Section 311 of the Cr.P.C.5, seeking recall of M.
Krishna (PW-189) and permit the prosecution to produce the report and the
certificate under Section 65B of the Act6 was rejected.
      3. Genesis of the trial is that in a serial bomb blasts which took place
in Bangalore on 25.07.2008, one woman lost her life whereas several persons
were injured. Several FIRs were registered at Madivala7, Koramangala8,
Byatarayanapura9, Kengeri10, Ashokanagar11, Sampangirama12 and Adugodi13
Police Stations for the offence punishable under Sections 120B, 121, 121A,
123, 153A, 302, 307, 326, 337, 435, 506 & 201 of the IPC14 and Sections
3 to 6 of the Explosive Substances Act, 1908, Sections 3 and 4 of the
Prevention of Destruction and Loss of Property Act, 1981, Sections 3 and
4 of the Prevention of Damage to Public Property Act, 1984 and Sections
10 and 13 of the Unlawful Activities (Prevention) Act, 1967. During the



1     Dated 27.01.2022.
2     High Court of Karnataka at Bengaluru.
3     XLVIII Additional City Civil and Sessions Judge (Special Court for Trial of CBI
      Cases) City Civil Court, Bangalore.
4     S.C. Nos. 1480/2010 & 1481/2010.
5     The Code of Criminal Procedure, 1973.
6     The Indian Evidence Act, 1872
7     Criminal Case No. 483/2008.
8     Criminal Case No. 297/2008.
9     Criminal Case No. 314/2008.
10    Criminal Case No. 117/2008.
11    Criminal Case No. 260/2008 and 261/2008.
12    Criminal Case No. 92/2008.
13    Criminal Case No. 217/2008.
14    The Indian Penal Code, 1860.
STATE OF KARNATAKA v. T. NASEER @ NASIR @ THANDIANTAVIDA 233
       NASEER @ UMARHAZI @ HAZI [RAJESH BINDAL, J.]


course of investigation certain electronic devices such as one Laptop,
one external Hard Disc, 3 Pen Drives, 5 floppies, 13 CDs, 6 SIM cards, 3
mobile phones, one memory card and 2 digital cameras etc. were seized at
the instance of accused no.3 i.e., Sarafaraz Nawaz@ Seju @Hakeem. The
original electronic devices were submitted before the Trial Court along
with the additional chargesheet dated 09.06.2010. The Trial Court vide
order dated 07.04.2017 ordered that the CFSL Report dated 29.11.2010
with reference to the electronic devices was inadmissible in evidence in the
absence of a certificate under Section 65-B of the Act. Though, according to
the prosecution, the original devices being already on record (as a primary
evidence), there was no requirement of a certificate under Section 65-B of
the Act. Still, as a matter of abundant caution, a certificate under Section
65-B of the Act was obtained and when M. Krishna (PW-189) was further
examined in chief on 27.04.2017, a certificate under Section 65-B of the
Act was sought to be produced. Objection was raised by the counsel for
the accused. Vide order dated 20.06.2017, the Trial Court opined that the
certificate issued under Section 65-B of the Act produced on 27.04.2017 was
not admissible in evidence. Thereafter an application was filed in the court
to allow the prosecution to recall M. Krishna (PW-189) and to produce the
certificate under Section 65-B of the Act in evidence. The application was
rejected by the Trial Court holding the same to be delayed. The order of the
Trial Court was upheld by the High Court. It is the aforesaid order which
is under challenge before this Court.
      4. Mr. Aman Panwar, Additional Advocate General, appearing for
the appellant-State, in his brief argument submitted that in the case in
hand, which shocked the whole country as such, serial bomb blasts in
Bangalore were master minded by the accused. The courts below should
have considered the application in that light. What was sought to be
produced by the prosecution was not something, which was created later
on. Rather it was merely a certificate under Section 65B of the Act. The
primary evidence in the form of electronic devices was already on record
along with the report from CFSL. It is only because the accused raised an
objection to the production of that report and not to take any chances, the
prosecution filed an application under Section 311 Cr.P.C. to resummon M.
Krishna (PW-189) and produce the certificate under Section 65-B of the Act
in evidence. There was no delay as immediately after the court rejected the
234          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


report dated 29.11.2010 of CFSL on 07.04.2017, an application was filed on
16.12.2017 seeking to produce the certificate under Section 65B of the Act
dated 27.04.2017. The learned courts below should have appreciated the fact
that by denying the prosecution opportunity to produce the certificate under
Section 65-B of the Act, great injustice would be caused to the appellant. In
support of the arguments that a certificate under Section 65-B of the Act can
be furnished/produced at any stage of proceedings, reliance was placed on
the judgments of this Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC
473 and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal,
(2020) 7 SCC 1.
      5. In response, Mr. Balaji Srinivasan, learned counsel appearing for
the respondents, submitted that there was no error in the orders passed by
the courts below. The prosecution cannot be allowed to fill up the lacuna in
the evidence by filing an application under Section 311 of the Cr.P.C. The
certificate was sought to be produced after a delay of six years. Hence, the
same was rightly not permitted to be produced on record. Great prejudice
shall be caused to the respondents now if the same is permitted. The
respondents will be deprived of their right of fair trial. The appeal deserves
to be dismissed.
     6. We have heard learned counsel for the parties and perused the
relevant referred record.
      7. The facts of the case have been briefly noticed in the preceding
paragraphs. Serial bomb blasts took place in Bangalore on 25.07.2008 which
shocked not only the Bangalore city or the State but the entire country, as in
such terror attacks it is only the innocents who suffer. The investigation had
to be scientific. At the instance of the accused no.3, electronic devices such
as one Laptop, one external Hard Disc, 3 Pen Drives, 5 floppies, 13 CDs,
6 SIM cards, 3 mobile phones, one memory card and 2 digital cameras etc.
were recovered and seized. These were sent for examination to the CFSL,
Hyderabad. Report was received on 29.11.2010. The same was submitted
before the Trial Court on 16.10.2012 and sought to be proved at the time
of recording of statement, M. Krishna, Assistant Government Examiner,
Computer Forensic Division, CFSL, appeared as PW-189. The accused vide
application dated 06.03.2017 objected to taking the report dated 29.11.2010
in evidence in the absence of a certificate under Section 65-B of the Act.
STATE OF KARNATAKA v. T. NASEER @ NASIR @ THANDIANTAVIDA 235
       NASEER @ UMARHAZI @ HAZI [RAJESH BINDAL, J.]


Immediately, thereafter a certificate dated 27.04.2017 was got issued under
Section 65-B of the Act and an application was filed under Section 311
of the Cr.P.C. seeking to recall M. Krishna (PW-189) and to produce the
aforesaid certificate in evidence. The trial was still pending. Learned Trial
Court without appreciating the legal position in this regard had dismissed
the application. The order was upheld by the High Court. It was primarily
for the reason of delay in producing the certificate under Section 65B of the
Act.
     8. This Court in Anwar’s case (supra) has opined that a certificate
under Section 65B of the Act is not required if electronic record is used as
a primary evidence. Relevant paragraph thereof is quoted herein below:
     “24. The situation would have been different had the appellant adduced
     primary evidence, by making available in evidence, the CDs used for
     announcement and songs. Had those CDs used for objectionable songs
     or announcements been duly got seized through the police or Election
     Commission and had the same been used as primary evidence, the High
     Court could have played the same in court to see whether the allegations
     were true. That is not the situation in this case. The speeches, songs and
     announcements were recorded using other instruments and by feeding
     them into a computer, CDs were made therefrom which were produced
     in court, without due certification. Those CDs cannot be admitted in
     evidence since the mandatory requirements of Section 65-B of the
     Evidence Act are not satisfied. It is clarified that notwithstanding
     what we have stated herein in the preceding paragraphs on the
     secondary evidence of electronic record with reference to Sections
     59, 65-A and 65-B of the Evidence Act, if an electronic record as
     such is used as primary evidence under Section 62 of the Evidence
     Act, the same is admissible in evidence, without compliance with
     the conditions in Section 65-B of the Evidence Act.”
                                                           (Emphasis added)
      9. The aforesaid issue was subsequently considered by this Court
in Arjun Panditrao Khotkar’s case (supra). It was opined that there is a
difference between the original information contained in a computer itself
and the copies made therefrom. The former is primary evidence and the
latter is secondary one. The certificate under Section 65-B of the Act is
236          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


unnecessary when the original document (i.e., primary evidence) itself is
produced. Relevant paragraph ‘33’ thereof is extracted below:
      “33. The non obstante clause in sub-section (1) makes it clear that
      when it comes to information contained in an electronic record,
      admissibility and proof thereof must follow the drill of Section 65-
      B, which is a special provision in this behalf — Sections 62 to 65
      being irrelevant for this purpose. However, Section 65-B(1) clearly
      differentiates between the “original” document — which would
      be the original “electronic record” contained in the “computer” in
      which the original information is first stored — and the computer
      output containing such information, which then may be treated
      as evidence of the contents of the “original” document. All this
      necessarily shows that Section 65-B differentiates between the
      original information contained in the “computer” itself and copies
      made therefrom — the former being primary evidence, and the
      latter being secondary evidence.”
                                                          (Emphasis added)
      10. In State of Karnataka v. M.R. Hiremath, 2019(7) SCC 515, this
Court after referring to the earlier judgment in Anwar’a case (supra) held
that the non-production of the Certificate under Section 65B of the Act is a
curable defect. Relevant paragraph ‘16’ thereof is extracted below:
      “16. The same view has been reiterated by a two-Judge Bench of this
      Court in Union of India v. Ravindra V. Desai, (2018) 16 SCC 273.
      The Court emphasised that non-production of a certificate under
      Section 65-B on an earlier occasion is a curable defect. The Court
      relied upon the earlier decision in Sonu v. State of Haryana, (2017) 8
      SCC 570 in which it was held:
      ‘32. … The crucial test, as affirmed by this Court, is whether the
      defect could have been cured at the stage of marking the document.
      Applying this test to the present case, if an objection was taken to the
      CDRs being marked without a certificate, the court could have given
      the prosecution an opportunity to rectify the deficiency.’
                                                          (Emphasis added)
STATE OF KARNATAKA v. T. NASEER @ NASIR @ THANDIANTAVIDA 237
       NASEER @ UMARHAZI @ HAZI [RAJESH BINDAL, J.]


     11.Coming to the issue as to the stage of production of the certificate
under Section 65-B of the Act is concerned, this Court in Arjun Panditrao
Khotkar’s case (supra) held that the certificate under 65-B of the Act can
be produced at any stage if the trial is not over. Relevant paragraphs are
extracted below:
     “56. Therefore, in terms of general procedure, the prosecution is
     obligated to supply all documents upon which reliance may be placed
     to an accused before commencement of the trial. Thus, the exercise of
     power by the courts in criminal trials in permitting evidence to be filed
     at a later stage should not result in serious or irreversible prejudice
     to the accused. A balancing exercise in respect of the rights of parties
     has to be carried out by the court, in examining any application by
     the prosecution under Sections 91 or 311 CrPC or Section 165 of the
     Evidence Act. Depending on the facts of each case, and the court
     exercising discretion after seeing that the accused is not prejudiced
     by want of a fair trial, the court may in appropriate cases allow
     the prosecution to produce such certificate at a later point in time.
     If it is the accused who desires to produce the requisite certificate
     as part of his defence, this again will depend upon the justice of
     the case — discretion to be exercised by the court in accordance
     with law.
     59. Subject to the caveat laid down in paras 52 and 56 above, the law
     laid down by these two High Courts has our concurrence. So long as
     the hearing in a trial is not yet over, the requisite certificate can
     be directed to be produced by the learned Judge at any stage, so
     that information contained in electronic record form can then be
     admitted and relied upon in evidence.”
                                                         (Emphasis added)
     12. The courts below had gone on a wrong premise to opine that there
was delay of six years in producing the certificate whereas there was none.
The matter was still pending when the application to resummon M. Krishna
(PW-189) and produce the certificate under Section 65-B of the Act was
filed under Section 311 of the Cr.P.C.
     13. It was only vide order dated 07.04.2017 that the report prepared
on the basis of electronic devices was refused to be taken on record by the
238          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


Trial Court. The original electronic devices had already been produced in
evidence and marked as MOs. It was during the examination in chief of M.
Krishna (PW-189) that the report of CFSL dated 29.11.2010 was sought to
be exhibited. However, the Trial Court vide order dated 07.04.2017 declined
to take the same on record in the absence of a certificate under Section 65B
of the Act. When the aforesaid witness was further examined in chief on
27.04.2017, the report under Section 65B was produced to which objection
was raised by the counsel of the defence and vide order dated 20.06.2017
the Trial Court declined to take the certificate, issued under Section 65B
of the Act, on record. It was thereafter that an application was filed under
Section 311 of the Cr.P.C. for recalling M. Krishna (PW-189) and produce the
certificate under Section 65-B of the Act on record. The same was rejected
by the Trial Court vide order dated 18.01.2018.
      14. From the aforesaid facts, it cannot be inferred that there was delay
of six years in producing the certificate. In fact, report received from CFSL,
Hyderabad on the basis of the contents of electronic devices dated 29.11.2010
was already placed before the Trial Court on 16.10.2012. In fact, the stand of
the prosecution was that when the original electronic devices were already
produced and marked MOs, there was no need to produce the certificate
under Section 65-B of the Act. Still, as a matter of abundant caution, the
same was produced that too immediately after objection was raised by the
accused against the production of CFSL report prepared on the basis of the
electronic devices seized.
      15. Fair trial in a criminal case does not mean that it should be fair to
one of the parties. Rather, the object is that no guilty should go scot-free
and no innocent should be punished. A certificate under Section 65-B of the
Act, which is sought to be produced by the prosecution is not an evidence
which has been created now. It is meeting the requirement of law to prove
a report on record. By permitting the prosecution to produce the certificate
under Section 65B of the Act at this stage will not result in any irreversible
prejudice to the accused. The accused will have full opportunity to rebut the
evidence led by the prosecution. This is the purpose for which Section 311
of the Cr.P.C. is there. The object of the Code is to arrive at truth. However,
the power under Section 311 of the Cr.P.C. can be exercised to subserve
STATE OF KARNATAKA v. T. NASEER @ NASIR @ THANDIANTAVIDA 239
       NASEER @ UMARHAZI @ HAZI [RAJESH BINDAL, J.]


the cause of justice and public interest. In the case in hand, this exercise of
power is required to uphold the truth, as no prejudice as such is going to be
caused to the accused.
      16. For the aforesaid reasons, the appeal is allowed. The orders passed
by the courts below are set aside. Resultantly, application filed by the
prosecution under Section 311 of the Cr.P.C. is allowed. The Trial Court
shall proceed with the matter further.


Headnotes prepared by:                                           Appeal allowed.
Ankit Gyan