State v. Virendra Bahadur Pal

Virendra Bahadur Pal @ Babbu Pal and others) arising out of Case Crime No.04 of 2022, Under Section 147, 148, 149, 302, 411, 427, 323, 394, 504, 506, 120-B I.P.C. relating to Police Station Lalganj, District Basti. It is further prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of the order dated 07.05.2025 passed by the 1st Additional District and Sessions Judge, Court No.1, Basti as well as stay the further proceedings of Sessions Trial No.304 of 2022 (State Versus Virendra Bahadur Pal @ Babbu Pal and others) arising out of Case Crime No.04 of 2022, Under Section 147, 148, 149, 302, 411, 427, 323, 394, 504, 506, 120-B I.P.C. relating to Police Station Lalganj, District Basti, during the pendency of the present Criminal Misc. Application before this Hon'ble Court, failing which applicant shall suffer irreparable loss and injury and/or pass such other and further order which this Hon'ble Court may deem fit and proper in the circumstances of the case."

4. It transpires from record that during pendency of aforementioned Sessions Trial, prosecution i.e. Additional District Government Counsel (Criminal) filed an application dated

24.04.2025 (Paper No. 214 Kha) (Annexure 7 to the affidavit filed in support of this application) with the prayer that the certificate under Section 65-B of the Indian Evidence Act in respect of the C.D.R. reports collected by the Investigating Officer during the course of investigation and appended alongwith case diary of concerned case crime number be summoned.

5. Aforementioned application filed by the prosecution/applicant was opposed by the accused i.e. opposite parties 2 to 11 herein. They accordingly filed their objections dated 06.02.2025 to the same which are on record as Annexure-8 to the affidavit filed in support of this application. Perusal of the same will go to show that aforementioned application was opposed by the accused i.e. opposite parties-2 to 11 primarily on the grounds that the same is contrary to law and fact. Aforementioned application has been engineered to delay the conclusion of trial. The Investigating Officer has already deposed before court below as P.W.-4. He has not proved the C.D.R. reports nor he has stated anything about the certificate under Section 65-B of the Indian Evidence Act. Even in the supplementary case diary, no reference has been made to any report in the conclusion drawn on the basis of the parchas of supplementary case diary, according to the prosecution present case is a case of direct evidence whereas C.D.R. is a circumstantial evidence, the aforementioned application has been filed without there being any good or cogent reason. The digital evidence pertaining to C.D..R. is a circumstantial evidence and therefore, not of conclusive nature. Therefore, on the strength of aforesaid objections, it was vehemently urged by the accused, i.e., opposite parties-2 to 11 that the aforementioned application has been engineered to delay the conclusion of trial. Since the Apex Court has itself directed the disposal of the Sessions Trial within a time bound period, therefore, the aforementioned application is liable to be rejected.

6. Ultimately court below examined the aforementioned application filed by the prosecution in the light of the objections raised on behalf of accused/opposite parties 2 to 11 and rejected the same vide order dated 07.05.2025 on the finding that the Investigating Officer has deposed before court below as P.W.-14. Present case is a case of direct evidence. Prosecution has admitted that the Mobile Phone used in conversation by the accused was not recovered during the course of investigation. The basis of entries regarding C.D.R. in the case diary has not been mentioned. In Parcha No.43, the factum regarding the receipt of the C.D.R. report has been made. During course of investigation, an objection was raised by the Observation Officer regarding the C.D.R. but the statement of only Vishal Singh son of the deceased was recorded. No averment has been made in the light of the provisions contained in Section 65-B of the Indian Evidence Act. Court below thus concluded that aforementioned application has been filed only to delay the conclusion of trial.

7. Thus feeling aggrieved by the above order dated 07.05.2025 passed by court below, applicant, who is a victim has approached this Court by means of present application under Section 528 BNSS.

8. Mr. Vimlendu Tripathi, the learned counsel for applicant submits that the order impugned in present application is manifestly illegal and therefore, the same is liable to be quashed by this Court. According to the learned counsel for applicant, in respect of electronic evidence the certificate under Section 65B of the Indian Evidence Act is mandatorily required, as in the absence of the said certificate, the same cannot be looked into. Therefore, the production of the certificate as contemplated under Section 65-B of the Indian Evidence Act is a pre-requisite to look into the said evidence. Moreover, the certificate under Section 65-B of the Indian Evidenc Act is not compulsorily required to be attached alongwith the charge sheet/police report but can be filed at any stage of the proceedings. He also submits that the ultimate object of the trial is to find out the truth. On the above premise, it is thus urged by the learned counsel for applicant that the application dated 24.04.2025 (Paper No. 214 Kha) cannot be rejected on the ground of delay or it has been filed at the belated stage or the same is not happily worded. In case, the certificate under Section 65-B of the Indian Evidence Act qua the C.D.R. reports, which are part of the record, is summoned, the same shall neither cause any prejudice to the prosecution or the defence but shall be an aid to the court to decide the criminality if any committed by the accused/opposite parties-2 to 11. Referring to the provisions of the Code i.e. Cr.P.C.., learned counsel for applicant submits that the code itself empowers the Court to summon such person or document which may be helpful for deciding the case. No finding has been returned by court below with regard to the relevance of the certificate under Section 65-B of the Indian Evidence Act with regard to the electronic evidence on record. Court below has thus rejected the aforementioned application on the basis of superficial finding.. On the above premise, the learned counsel for applicant submits that the order impugned cannot be sustained and is therefore, liable to be set aside by this Court. To lend legal support to this submissions, the learned counsel for applicant has referred to the following judgements of Supreme Court and other High Courts: i. Varsha Garg Vs. State of Madhya Pradesh and Others (2022) 2 SCC OnLine SC 986. ii. Mohd. Azam Khan Vs. State of U.P. and another (2023) SCC OnLine All 516. iii. Prithvi Singh Yadv and others Vs. State of Madhya Pradesh and others (1996) MPLJ 172. iv. Manoj Patel Vs. The State of Madhya Pradesh, Misc. Criminal Case No. 4648 of 2024, Judgement dated 13.02.2024 passed by the Hon'ble M. P. High Court. v. Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1.

9. Per contra, the learned A.G.A. for State-opposite party-1 does not oppose the present application. Learned A.G.A. submits that in the absence of the certificate as contemplated under Section 65-B of the Indian Evidence Act, the electronic evidence collected by the Investigating Officer and relied upon to arrive at the conclusion that prima-facie the charge sheeted accused are guilty of committing offence as complained of, aforementioned application (paper No. 214 Kha) was rightly filed by the prosecution. Court below, however, erred in law and fact in rejecting the same.

10. On the other hand, Mr. Manish Tewary, the learned senior counsel assisted by Mr. Pranav Tewary and Mr. Akhilesh Kumar Mishra, the learned counsel representing accused/opposite party-2 has however vehemently opposed the present application. With reference to the findings returned by court court in the order impugned, he submits that no illegality or infirmity can be attached to the order impugned. He therefore submits that no interference is warranted by this Court in present application. As such, present application is liable to be dismissed by this Court.

11. Having heard Mr. Vimlendu Tripathi, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Manish Tewary, the learned counsel representing accused-opposite party-2 and upon perusal of record, this Court finds that there is no denial of the fact that C.D.R. report of the Mobile Phones used by the accused/opposite parties-2 to 11 for committing the crime in question was duly collected by the Investigating Officer during the course of investigation. The same have also been appended alongwith the case diary and therefore part of the record . However, in the absence of the certificate under Section 65-B of the Indian Evidence Act, which is mandatorily required for electronic evidence, the said C.D.R. report could neither be looked into nor can they be admitted in evidence. The power under Section 91 of the Code is an enabling provision which enables the court to summon the document which may be helpful in adjudicating the issue involved in a criminal trial. Court below has rejected the aforementioned application without recording a finding as to whether in the absence of the certificate under Section 65-B of the Indian Evidence Act, the C.D.R. report collected by the Investigating Officer and appended alongwith the case diary could be relied upon or not. To the contrary, the aforementioned application has been rejected by court below on the superficial finding that there is no recital in the application in the light of wordings of Section 65-B of the Indian Evidence Act. As such, court below has rejected the aforementioned application filed by the prosecution without going into the facts and circumstances of the case particularly the relevance of the certificate under Section 65-B of the Indian Evidence Act in a criminal trial. As such, court below has not exercised it's jurisdiction diligently but in a casual and caviler fashion. Moreover, the issue in hand is squarely covered by the judgement of Supreme Court in Arjun Panditrao Khotkar(supra), wherein the Apex Court allowed the appeal and directed the court below to accept the certificate under Section 65-B of the Indian Evidence Act as it is mandatorily required and further the same can be filed at any stage of the proceedings. In view of the binding character of the judgement of the Supreme Court referred to above, the inescapable conclusion is that the order impugned cannot be sustained as it is illegal. Accordingly, the same is liable to be quashed.

12. In view of the discussions made above, the present application succeeds and is liable to be allowed.

13. It is accordingly allowed.

14. The order impugned dated 07.05.2025 passed by Ist Additional District and Sessions Judge, Court No.1, Basti in Sessions Trial No. 304 of 2022 (State Vs. Virendra Bahadur Pal @ Babbu Pal and others) arising out of Case Crime No. 04 of 2022, under Sections 147, 148, 149, 302, 411, 427, 323, 394, 504, 506, 120-B I.P.C., Police Station-Lalganj, District-Basti, now pending in Court of Ist Additional District and Sessions Judge, Court No.1, Basti shall stand quashed.

15. The application dated 24.04.2025 filed by the prosecution/applicant (paper no. 214 Kha) Annexure-7 of the affidavit filed in support of present application shall stand allowed. The necessary direction shall be issued by court below to the authority concerned to produce the certificate as contemplated under Section 65-B of the Indian Evidence Act.

16. In the facts and circumstances of the case, parties shall bear their own costs. Order Date :- 15.5.2025 YK

Virendra Bahadur Pal @ Babbu Pal and others) arising out of Case Crime No.04 of 2022, Under Section 147, 148, 149, 302, 411, 427, 323, 394, 504, 506, 120-B I.P.C. relating to Police Station Lalganj, District Basti. It is further prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of the order dated 07.05.2025 passed by the 1st Additional District and Sessions Judge, Court No.1, Basti as well as stay the further proceedings of Sessions Trial No.304 of 2022 (State Versus Virendra Bahadur Pal @ Babbu Pal and others) arising out of Case Crime No.04 of 2022, Under Section 147, 148, 149, 302, 411, 427, 323, 394, 504, 506, 120-B I.P.C. relating to Police Station Lalganj, District Basti, during the pendency of the present Criminal Misc. Application before this Hon'ble Court, failing which applicant shall suffer irreparable loss and injury and/or pass such other and further order which this Hon'ble Court may deem fit and proper in the circumstances of the case."

4. It transpires from record that during pendency of aforementioned Sessions Trial, prosecution i.e. Additional District Government Counsel (Criminal) filed an application dated

24.04.2025 (Paper No. 214 Kha) (Annexure 7 to the affidavit filed in support of this application) with the prayer that the certificate under Section 65-B of the Indian Evidence Act in respect of the C.D.R. reports collected by the Investigating Officer during the course of investigation and appended alongwith case diary of concerned case crime number be summoned.

5. Aforementioned application filed by the prosecution/applicant was opposed by the accused i.e. opposite parties 2 to 11 herein. They accordingly filed their objections dated 06.02.2025 to the same which are on record as Annexure-8 to the affidavit filed in support of this application. Perusal of the same will go to show that aforementioned application was opposed by the accused i.e. opposite parties-2 to 11 primarily on the grounds that the same is contrary to law and fact. Aforementioned application has been engineered to delay the conclusion of trial. The Investigating Officer has already deposed before court below as P.W.-4. He has not proved the C.D.R. reports nor he has stated anything about the certificate under Section 65-B of the Indian Evidence Act. Even in the supplementary case diary, no reference has been made to any report in the conclusion drawn on the basis of the parchas of supplementary case diary, according to the prosecution present case is a case of direct evidence whereas C.D.R. is a circumstantial evidence, the aforementioned application has been filed without there being any good or cogent reason. The digital evidence pertaining to C.D..R. is a circumstantial evidence and therefore, not of conclusive nature. Therefore, on the strength of aforesaid objections, it was vehemently urged by the accused, i.e., opposite parties-2 to 11 that the aforementioned application has been engineered to delay the conclusion of trial. Since the Apex Court has itself directed the disposal of the Sessions Trial within a time bound period, therefore, the aforementioned application is liable to be rejected.

6. Ultimately court below examined the aforementioned application filed by the prosecution in the light of the objections raised on behalf of accused/opposite parties 2 to 11 and rejected the same vide order dated 07.05.2025 on the finding that the Investigating Officer has deposed before court below as P.W.-14. Present case is a case of direct evidence. Prosecution has admitted that the Mobile Phone used in conversation by the accused was not recovered during the course of investigation. The basis of entries regarding C.D.R. in the case diary has not been mentioned. In Parcha No.43, the factum regarding the receipt of the C.D.R. report has been made. During course of investigation, an objection was raised by the Observation Officer regarding the C.D.R. but the statement of only Vishal Singh son of the deceased was recorded. No averment has been made in the light of the provisions contained in Section 65-B of the Indian Evidence Act. Court below thus concluded that aforementioned application has been filed only to delay the conclusion of trial.

7. Thus feeling aggrieved by the above order dated 07.05.2025 passed by court below, applicant, who is a victim has approached this Court by means of present application under Section 528 BNSS.

8. Mr. Vimlendu Tripathi, the learned counsel for applicant submits that the order impugned in present application is manifestly illegal and therefore, the same is liable to be quashed by this Court. According to the learned counsel for applicant, in respect of electronic evidence the certificate under Section 65B of the Indian Evidence Act is mandatorily required, as in the absence of the said certificate, the same cannot be looked into. Therefore, the production of the certificate as contemplated under Section 65-B of the Indian Evidence Act is a pre-requisite to look into the said evidence. Moreover, the certificate under Section 65-B of the Indian Evidenc Act is not compulsorily required to be attached alongwith the charge sheet/police report but can be filed at any stage of the proceedings. He also submits that the ultimate object of the trial is to find out the truth. On the above premise, it is thus urged by the learned counsel for applicant that the application dated 24.04.2025 (Paper No. 214 Kha) cannot be rejected on the ground of delay or it has been filed at the belated stage or the same is not happily worded. In case, the certificate under Section 65-B of the Indian Evidence Act qua the C.D.R. reports, which are part of the record, is summoned, the same shall neither cause any prejudice to the prosecution or the defence but shall be an aid to the court to decide the criminality if any committed by the accused/opposite parties-2 to 11. Referring to the provisions of the Code i.e. Cr.P.C.., learned counsel for applicant submits that the code itself empowers the Court to summon such person or document which may be helpful for deciding the case. No finding has been returned by court below with regard to the relevance of the certificate under Section 65-B of the Indian Evidence Act with regard to the electronic evidence on record. Court below has thus rejected the aforementioned application on the basis of superficial finding.. On the above premise, the learned counsel for applicant submits that the order impugned cannot be sustained and is therefore, liable to be set aside by this Court. To lend legal support to this submissions, the learned counsel for applicant has referred to the following judgements of Supreme Court and other High Courts: i. Varsha Garg Vs. State of Madhya Pradesh and Others (2022) 2 SCC OnLine SC 986. ii. Mohd. Azam Khan Vs. State of U.P. and another (2023) SCC OnLine All 516. iii. Prithvi Singh Yadv and others Vs. State of Madhya Pradesh and others (1996) MPLJ 172. iv. Manoj Patel Vs. The State of Madhya Pradesh, Misc. Criminal Case No. 4648 of 2024, Judgement dated 13.02.2024 passed by the Hon'ble M. P. High Court. v. Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1.

9. Per contra, the learned A.G.A. for State-opposite party-1 does not oppose the present application. Learned A.G.A. submits that in the absence of the certificate as contemplated under Section 65-B of the Indian Evidence Act, the electronic evidence collected by the Investigating Officer and relied upon to arrive at the conclusion that prima-facie the charge sheeted accused are guilty of committing offence as complained of, aforementioned application (paper No. 214 Kha) was rightly filed by the prosecution. Court below, however, erred in law and fact in rejecting the same.

10. On the other hand, Mr. Manish Tewary, the learned senior counsel assisted by Mr. Pranav Tewary and Mr. Akhilesh Kumar Mishra, the learned counsel representing accused/opposite party-2 has however vehemently opposed the present application. With reference to the findings returned by court court in the order impugned, he submits that no illegality or infirmity can be attached to the order impugned. He therefore submits that no interference is warranted by this Court in present application. As such, present application is liable to be dismissed by this Court.

11. Having heard Mr. Vimlendu Tripathi, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Manish Tewary, the learned counsel representing accused-opposite party-2 and upon perusal of record, this Court finds that there is no denial of the fact that C.D.R. report of the Mobile Phones used by the accused/opposite parties-2 to 11 for committing the crime in question was duly collected by the Investigating Officer during the course of investigation. The same have also been appended alongwith the case diary and therefore part of the record . However, in the absence of the certificate under Section 65-B of the Indian Evidence Act, which is mandatorily required for electronic evidence, the said C.D.R. report could neither be looked into nor can they be admitted in evidence. The power under Section 91 of the Code is an enabling provision which enables the court to summon the document which may be helpful in adjudicating the issue involved in a criminal trial. Court below has rejected the aforementioned application without recording a finding as to whether in the absence of the certificate under Section 65-B of the Indian Evidence Act, the C.D.R. report collected by the Investigating Officer and appended alongwith the case diary could be relied upon or not. To the contrary, the aforementioned application has been rejected by court below on the superficial finding that there is no recital in the application in the light of wordings of Section 65-B of the Indian Evidence Act. As such, court below has rejected the aforementioned application filed by the prosecution without going into the facts and circumstances of the case particularly the relevance of the certificate under Section 65-B of the Indian Evidence Act in a criminal trial. As such, court below has not exercised it's jurisdiction diligently but in a casual and caviler fashion. Moreover, the issue in hand is squarely covered by the judgement of Supreme Court in Arjun Panditrao Khotkar(supra), wherein the Apex Court allowed the appeal and directed the court below to accept the certificate under Section 65-B of the Indian Evidence Act as it is mandatorily required and further the same can be filed at any stage of the proceedings. In view of the binding character of the judgement of the Supreme Court referred to above, the inescapable conclusion is that the order impugned cannot be sustained as it is illegal. Accordingly, the same is liable to be quashed.

12. In view of the discussions made above, the present application succeeds and is liable to be allowed.

13. It is accordingly allowed.

14. The order impugned dated 07.05.2025 passed by Ist Additional District and Sessions Judge, Court No.1, Basti in Sessions Trial No. 304 of 2022 (State Vs. Virendra Bahadur Pal @ Babbu Pal and others) arising out of Case Crime No. 04 of 2022, under Sections 147, 148, 149, 302, 411, 427, 323, 394, 504, 506, 120-B I.P.C., Police Station-Lalganj, District-Basti, now pending in Court of Ist Additional District and Sessions Judge, Court No.1, Basti shall stand quashed.

15. The application dated 24.04.2025 filed by the prosecution/applicant (paper no. 214 Kha) Annexure-7 of the affidavit filed in support of present application shall stand allowed. The necessary direction shall be issued by court below to the authority concerned to produce the certificate as contemplated under Section 65-B of the Indian Evidence Act.

16. In the facts and circumstances of the case, parties shall bear their own costs. Order Date :- 15.5.2025 YK