STATE OF KARNATAKA   [Appellant(s)]   Vs.  T. NASEER @ NASIR @ THANDIANTAVIDA NASEER @ UMARHAZI @ HAZI & ORS. [ Respondent(s)]

(SPECIAL LEAVE PETITION (CRL.) NO. 6548 OF 2022)

(2JB, VIKRAM NATH and RAJESH BINDAL JJ., delivered by RAJESH BINDAL, J.)

Facts: Vide order passed by the High Court in Criminal Petition No. 2585 of 2019 filed by the appellant-State, an order dated 18.01.2018 passed by the Trial Court was upheld. Vide the aforesaid an application filed by the prosecution under Section 311 of the Cr.P.C., seeking recall of M. Krishna (PW-189) and permit the prosecution to produce the report and the certificate under Section 65B of the Act was rejected.

Issue: Can the certificate under 65-B of the Act can be produced at any stage if the trial is not over?

Arguments on behalf of counsel for appellant: Mr. Aman Panwar, Additional Advocate General

The counsel 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 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 5 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) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020).

Arguments on behalf of counsel for respondent: Mr. Balaji Srinivasan

In response, 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.

Held: The court allowed the present appeal and held that, “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. 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. 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.”