SUNIL RAMESH RUPWATE v. THE STATE OF MAHARASHTRA AND ANOTHER
Legal Reasoning
910-Cri-WP-1658-2024*.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1658 OF 2024SUNIL RAMESH RUPWATE VERSUS THE STATE OF MAHARASHTRA AND ANOTHER .…Mr. Satyajeet Sanjay Dixit, Advocate for the Petitioner Mr. V. M. Chate, APP for the Respondent No.1 – State .…CORAM: Y. G. KHOBRAGADE, J.DATE:18.10.2024PER COURT :- 1.Heard Mr. Dixit, the learned Advocate for thePetitioner and Mr. V. M. Chate, the learned APP for RespondentNo.1. 2.The Petitioner invoked jurisdiction of this Court underArticle 227 of the Constitution of India read with Section 482 ofthe Code of Criminal Procedure and put forth prayer clauses (A)and (B), as under:-“(A)By issuing appropriate writ or order or direction, therecord and proceeding of Criminal Misc. ApplicationNo.21/2023 filed by respondent NO.2 and pending beforeLd. Additional Sessions Judge/District Judge-1, Sangamner, 1 of 9 (( 2 ))910-Cri-WP-1658-2024*Dist. Ahmednagar be called for and after examining the legality,validity and propriety thereof Criminal Misc. ApplicationNo.21/2023 filed by respondent NO.2 and pending before Ld.Additional Sessions Judge/District Judge-1, Sangamner, Dist.Ahmednagar be quashed and set-aside.(B)By issuing appropriate writ or order or direction, therecord and proceeding of impugned order dated 24.05.2024passed below Exhibit-17 filed in Criminal Misc. ApplicationNo.21/2023 by Ld. Additional Sessions Judge/District Judge-1,Sangamner, Dist. Ahmednagar be called for and afterexamining the legality, validity and propriety thereof impugnedorder dated 24.05.2024 passed below Exhibit-17 filed inCriminal Misc. Application No.21/2023 by Ld. AdditionalSessions Judge/District Sangamner, Dist. Ahmednagar bequashed and set-aside and reject the application filed byrespondent NO.2 at Exhibit-17.”3.It is a matter of record that, on 16.09.2018 Crime No.309of 2018 registered with Sangamner City Police Station, against thepetitioner for the offences punishable under Sections 376, 323, 504,506 of the Indian Penal Code. On 11.03.2019, the Petitioner came tobe released on bail on certain terms and conditions. However,subsequently, the Respondent No.2/victim filed an application forcancellation of bail on grounds set out therein. On 05.04.2021, thelearned Additional Sessions Judge, Sangamner, passed the impugnedorders below Exhs. 24, 30, 48 and 84, in Sessions Case No. 54 of2018 and cancelled bail which was granted to the present Petitioner. 2 of 9 (( 3 ))910-Cri-WP-1658-2024*4.Being aggrieved by said order, the Petitioner wasapproached before this Court in Criminal Application No.962 of 2021.On 16.09.2021, this Court (Coram: V. G. Bisht, J.) passed an orderand set aside the order dated 04.05.2021 passed by the learnedAdditional Sessions Judge below Exhs.24, 30, 48 and 84 and order ofgrant of bail came to be confirmed. Being aggrieved by said order, thepresent Respondent No.2/victim filed Special Leave Appeal(Criminal) No.8555 of 2021 before the Hon'ble Supreme Court,however, said S.L.P. came to be dismissed on 15.11.2021.5.Thereafter, the present Respondent No.2 / victim, againfiled Criminal Application No.21 of 2023 for cancellation of bailgranted to the present Petitioner. The Respondent no. 2 / victimalleged that, under the false promise of marriage and by blackmailingas well under life threat, the Petitioner/accused committed sexualintercourse with her. So also, in past, she entered into a compromisewith the petitioner under the pressure of the relatives but thePetitioner/accused did not keep his promise. So also, thepetitioner/accused was released on bail on conditions that, he wouldnot indulge in crime and he would not issue threat to the witness andinformant, but the accused pressuring the informant as well other 3 of 9 (( 4 ))910-Cri-WP-1658-2024*witness. Therefore, the Respondent/victim prayed for cancellationbail granted to the petitioner, which is pending before the trial Court.The petitioner/ accused yet not filed reply to the said application.Since, the Petitioner/accused having right to resist said application byfiling reply and no order has been passed by the learned trial Court,therefore, present petition is pre-mature and no cause of action aroseto file this petition. 6.It is well settled principle of law that, the victim havingevery right to file an application for cancellation of bail of theaccused, in case if it is found about breach of bail conditions. Thepowers confirmed upon this Court under Article 227 of theConstitution of India and Section 482 of the Code of CriminalProcedure, cannot be invoked for quashing of application forcancellation of bail. Therefore, the present Petition in respect ofprayer clause (A) cannot be entertained and it is liable to bedismissed. 7.In regard to the prayer clause (B), the Petitioner prayedfor quashment of order dated 24.05.2024, passed by the learnedSessions Judge, Sangamner, below Exh.17 in Criminal M. A. No.21 of 4 of 9
Legal Reasoning
(( 5 ))910-Cri-WP-1658-2024*2023, whereby, the electronic document i.e. pen-drive, which hasbeen produced by Respondent No.2 victim, referred for chemicalexamination to testify genuineness and truthfulness of the contents ofthe electronic documents. 8.The learned Counsel for the Petitioner canvassed that asper the provisions of Section 54(B), unless the genuineness of theelectronic document in question is the subject of challenge and thenecessary certificate under Section 65-B, is produced. The said cannotbe referred to the chemical examination. 9.In support of this submission, the learned Counsel for thePetitioner placed reliance on the case of Anvar P. V. Vs. P. K. Basheer,(2014) 10 SCC 473, wherein the Hon'ble Apex Court has held thus: “Electronic record produced for the inspection of the court isdocumentary evidence under Section 3 of the Evidence Act,1872 (the Evidence Act). Any documentary evidence by way ofan electronic record under the Evidence Act, in view of Section59 and 65-A, can be proved only in accordance with theprocedure prescribed under Section 65-B of the Evidence Act.The purpose of these provisions is to sanctify secondaryevidence in electronic form generated by a computer. The veryadmissibility of electronic record which is called as “computeroutput”, depends on the satisfaction of the four conditionsprescribed under Section 65-3(2) of the Evidence Act.” 5 of 9 (( 6 ))910-Cri-WP-1658-2024*10.Per contra, the learned APP canvassed that the presentPetitioner charge-sheeted for the offence punishable under Sections376, 323, 504, 506 of the Indian Penal Code and during the course oftrial, the victim, Respondent No.2 produced audio recording of thephone calls between her and the Petitioner/accused, which wasrecorded in victim’s mobile and transferred the data to the electronicgadget Pen-drive. Therefore, truthfulness of contents of electronicdocument i.e. pen-drive required to be examined by the forensicexpert. The prosecution filed Exh.70 an application and prayed forreferring the electronic document pen-drive for examination to theforensic expert. 11.Needless to say that, the learned Sessions Courtconsidered the scope of Section 65-B of the Evidence Act as well aselectronic document and referred it for chemical examination, whichdoes not appear illegal, bad in law and no interference is called for atthe hands of this Court. Therefore, prayed for dismissal of thisPetition. 12. In support of this submissions, the learned APP placesreliance on the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao 6 of 9 (( 7 ))910-Cri-WP-1658-2024*Gorantyal and others, AIR 2020 SC 4908. The Hon’ble SupremeCourt held in para 58 and 59 of the said judgment, read thus:-“58.It may also be seen that the person who gives thiscertificate can be anyone out of several persons who occupy a‘responsible official position’ in relation to the operation of therelevant device, as also the person who may otherwise be in the‘management of relevant activities’ spoken of in Sub-section (4)of Section 65B. Considering that such certificate may also begiven long after the electronic record has actually beenproduced by the computer, Section 65B(4) makes it clear that itis sufficient that such person gives the requisite certificate tothe “best of his knowledge and belief” (Obviously, the word“and” between knowledge and belief in Section 65B(4) must beread as “or”, as a person cannot testify to the best of hisknowledge and belief at the same time). 59.We may reiterate, therefore, that the certificate requiredunder Section 65B(4) is a condition precedent to theadmissibility of evidence by way of electronic record, ascorrectly held in Anvar P.V. (supra), and incorrectly “clarified” inShafhi Mohammed (supra). Oral evidence in the place of suchcertificate cannot possibly suffice as Section 65B(4) is amandatory requirement of the law. Indeed, the hallowedprinciple in Taylor v. Taylor (1876) 1 Ch.D 426, which has beenfollowed in a number of the judgments of this Court, can alsobe applied. Section 65B(4) of the Evidence Act clearly statesthat secondary evidence is admissible only if lead in the mannerstated and not otherwise. To hold otherwise would renderSection 65B(4) otiose.”13.Needless to say that in the case of Anvar (supra), theHon'ble Supreme Court framed the guidelines that if the witness of 7 of 9 (( 8 ))910-Cri-WP-1658-2024*the prosecution desires to give statement pertaining to anyproceeding to the electronic record, there must be a certificate whichshould identify the electronic record containing the statement; thesaid certificate is required to be produced as prescribed, saidcertificate must furnish the particular of the device involved in theproduction and said certificate must be signed by a person occupyinga reasonable official position in relating to the operation of therelevant device. 14.In the case in hand, the Respondent/victim, specificallymade a statement that she recorded phone calls between her and theaccused in her mobile. She transferred the data from her mobile tothe “Pen-Drive” and produced before the trial Court. So also, theRespondent No.2 issued a certificate under Section 65-B of theEvidence Act. Therefore, there appears to be compliance of Section65-B. Therefore, to test genuineness of the electronic record underthe impugned order, the learned trial Court referred for examinationto the expert as per Section 45A of the Evidence Act. Therefore, tomy mind, the right of the present Petitioner/accused not beenprejudiced. However, the accused will have every right to crossexamine the witness in respect of issuance of certificate under Section 8 of 9 (( 9 ))910-Cri-WP-1658-2024*65-B as well as the genuineness of the contents of electronicdocument i.e. pen-drive. Therefore, I do not find any substance in thepresent Petition. Therefore, the present Writ Petition is dismissed. [ Y. G. KHOBRAGADE, J. ] SMS 9 of 9