Jaipur v. For

Mr. Amar Kumar, Adv. & Ms. Savita Nathawat, Adv. HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order Judgment Reserved on Judgment Pronounced on : : 12/08/2025 22/08/2025

1. The present petition has been filed under Section 482 of Cr.P.C. with a prayer for quashing and setting aside the order dated 27.10.2016 passed by learned Additional Sessions Judge, Women Atrocity Cases No.2, Jaipur Metropolitan, Jaipur (hereinafter referred to as the 'trial Court') in Sessions Case No.226/2015 whereby learned trial Court dismissed the application filed under Section 294 of Cr.P.C. requesting for not exhibiting of some photographs without compliance of the provisions of Sections 65-A and 65-B of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act of 1872'). [2025:RJ-JP:33068] (2 of 10) [CRLMP-5933/2016]

2. Brief facts of this case as narrated by learned Senior Counsel appearing on behalf of the petitioner are that the petitioner got married with one Rinku Dubey on 04.05.2003 and there was no demand of dowry from the petitioner's family. Due to the reasons best known to Smt. Rinku Dubey, she committed suicide at her parents' home on 14.12.2006, for which an FIR No.106/2006 was lodged by the complainant at Mahila Thana South, Jaipur City, Jaipur against the petitioner and his parents.

3. During investigation, parents of the petitioner were arrested and the charge-sheet for the offences punishable under Sections 498-A, 304-B and 406 of IPC was filed against them. Thereafter, parents of the petitioner were tried by learned trial Court in Sessions Case No.62/2007 (State Vs. Dinesh Babu Dubey & Anr.) and vide the impugned judgment dated 18.08.2010, they were acquitted from all the charges framed under Sections 498-A, 304- B and 406 of IPC. Thereafter, the present petitioner surrendered himself before learned trial Court and trial against the present petitioner commenced in Sessions Case No.226/2015 (State Vs. Sumit Dubey).

4. Learned Senior Counsel submitted that during trial against the petitioner, the prosecution wanted to exhibit some photographs i.e. Ex. P-7 to Ex. P-13 through the witness, without there being either the negatives of the photographs or any compliance of Sections 65-A or 65-B of the Act of 1872. Therefore, the defence raised objection to such photographs being exhibited through an application dated 28.03.2016 and learned trial Court vide order dated 27.10.2016, while dismissing the said application filed on behalf of the petitioner, allowed the exhibiting of the [2025:RJ-JP:33068] (3 of 10) [CRLMP-5933/2016] aforesaid photographs. Learned trial Court held that exhibiting of the said photographs cannot be refused, on the ground that the same were already exhibited during the trial, conducted against the parents of the petitioner i.e. in Sessions Case No.62/2007, and that since parents of the petitioner did not challenge exhibiting of the said photographs before higher judicial forums, therefore, now allowing the objection of the defence for not exhibiting the said photographs would amount to review of its own order, which is impermissible.

5. Learned Senior Counsel for the petitioner argued that in the trial conducted against the parents of the petitioner i.e. in Sessions Case No.62/2007 also, the defence raised an objection regarding the said photographs being exhibited without compliance of the provisions laid down in the Act of 1872, but learned trial Court overruled the said objection and allowed the exhibiting of the said photographs. Learned Senior Counsel further argued that the fact that the said photographs were already exhibited during the trial, conducted against the parents of the petitioner i.e. in Sessions Case No.62/2007, cannot act as res judicata because both the trial conducted against parents of the petitioner and against the present petitioner are different trials, therefore, both these trials are to be conducted independently and the evidence is to be produced and appreciated independently. Learned Senior Counsel contended that requirement of compliance of the Sections 65-A and 65-B of the Act of 1872 are mandatory and cannot be dispensed with, therefore, the petitioner cannot be precluded to take such objection, which was already overruled [2025:RJ-JP:33068] (4 of 10) [CRLMP-5933/2016] during the earlier trial conducted against the parents of the petitioner i.e. in Sessions Case No.62/2007.

6. Learned Senior Counsel for the petitioner has placed reliance upon the judgments passed by the Hon'ble Apex Court in the cases of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors. reported in (2020) 7 SCC 1 and Anvar P.V. Vs. P.K. Basheer & Ors. reported in (2014) 10 SCC 473 and prayed that the present petition be allowed and the photographs i.e. Ex. P-7 to Ex. P-13 exhibited in Sessions Case No.226/2015 (State Vs. Sumit Dubey) be ordered to be removed.

7. Learned Deputy Government Advocate appearing on behalf of the State opposed the prayer made on behalf of the petitioner.

8. Heard learned counsel for the parties and perused the material available on record.

9. The relevant portions of the Sections 65-A and 65-B of the Act of 1872 are quoted below:- "65A. Special provisions as to evidence relating to electronic record–The contents of electronic records may be proved in accordance with the provisions of section 65B. 65B. Admissibility of electronic records.– (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible. [2025:RJ-JP:33068] (5 of 10) [CRLMP-5933/2016] (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:– (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether– (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; [2025:RJ-JP:33068] (6 of 10) [CRLMP-5933/2016] and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, – (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub- section it shall be sufficient for a matter to be stated to the best of the knowledge and 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 is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.–For the purposes of this section any reference to information being derived from [2025:RJ-JP:33068] (7 of 10) [CRLMP-5933/2016] other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."

10. Admittedly, in the case in hand, the photographs i.e. Ex. P-7 to Ex. P-13 have been captured through a digital camera, which make the said photographs as an electronic record. The aforesaid photographs have been exhibited without the said digital camera being itself produced before learned trial Court and also, no certificate under Section 65-B of the Act of 1872 was produced in support of the aforesaid photographs. The law regarding admissibility of an electronic record has been discussed in detail by the Hon'ble Apex Court in the case of Anvar P.V. (supra), wherein in para 22 of the judgment it has been held that:- "22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case2, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the [2025:RJ-JP:33068] (8 of 10) [CRLMP-5933/2016] secondary evidence pertaining to that electronic record, is inadmissible." The Hon'ble Apex Court has also reiterated the same view in para 61 of the judgment passed in the case of Arjun Panditrao Khotkar (supra):- "61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record. as correctly held in Anvar P.V2, and incorrectly "clarified" in Shafhi Mohammad3. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor40, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose."

11. Therefore, as per the legal provisions contained in Sections 65-A and 65-B of the Act of 1872 and legal pronouncements of the Hon'ble Apex Court in the cases of Anvar P.V. (supra) and Arjun Panditrao Khotkar (supra), it is clear that the requirement of Section 65-B of the Act of 1972 is mandatory in nature so far as admissibility of secondary evidence of an electronic record is concerned. The compliance of the provisions laid down in Section 65-B of the Act of 1872 is, therefore, sine qua non for admissibility of secondary evidence of an electronic record.

12. The relevant portion of the impugned order dated

27.10.2016 passed by learned trial Court is reproduced below:- "tgka rd fo}ku vf/koDrk izkFkhZ&vfHk;qDr dh vksj ls izLrqr U;kf;d n`"Vkar AIR 2015 S.C. 180 dk laca/k gS mDr U;kf;d n`"Vkar esa ekuuh; loksZPp [2025:RJ-JP:33068] (9 of 10) [CRLMP-5933/2016] U;k;ky; us Hkkjrh; lk{; vf/kfu;e dh /kkjk 59] 65,] 65ch] 63] 65 esa fdlh bysDVªkWfud fjdkWMZ dh f}rh;d lk{; dh xzkg~;rk ds laca/k esa fl)kUr izfrikfnr fd;s gSa ftuls eSa iw.kZr;k lger gwa ijUrq tSlk fd Åij foospu fd;k tk pqdk gS iwoZ esa Hkh vU; vfHk;qDrx.k dh vUoh{kk ds le; fo}ku vf/koDrk vfHk;qDrx.k ds }kjk mDr iz'uxr Nk;kfp=ksa ij izn'kZ Mkyus ij vkifŸk fd;s tkus ij bl U;k;ky; }kjk mDr vkifŸk dks vLohdkj dj ml ij izn'kZ Mkyus dh vuqefr nh gS ,oa mDr Nk;kfp=ksa ij iwoZ esa izn'kZ Mkys tk pqds gSaA blfy, mijksDr leLr rF;ksa] ifjfLFkfr;ksa ,oa mDr foospu ds vuqlkj fo}ku vf/koDrk izkFkhZ&vfHk;qDr dh vksj ls izLrqr U;kf;d n`"Vkar ds rF; gLrxr ekeyksa ds rF;ksa ls fHkUu gksus ds dkj.k izkFkhZ&vfHk;qDr dks dksbZ lgk;rk iznku ugha djrs gSaA vr% mijksDr leLr rF;ksa] ifjfLFkfr;ksa dks ns[krs gq, fo}ku vf/koDrk vfHk;qDr dh vkifŸk vLohdkj dj [kkfjt dh tkrh gS vkSj iz'uxr Nk;kfp=ksa ¼Fotographs½ ij iwokZuqlkj izn'kZ Mkyus dh vuqefr nh tkrh gSA"

13. From perusal of the aforesaid order, it is clear that learned trial Court while passing the impugned order dated 27.10.2016, was also well aware of the mandate of law as laid down in Section 65-B of the Act of 1872 and also the law laid down by the Hon'ble Apex Court in the case of Anvar P.V. (supra). Despite knowing the mandate of the law, learned trial Court has not allowed the application of the petitioner for not exhibiting of the aforesaid photographs for want of compliance of the provisions of Section 65-B of the Act of 1872, perhaps on wrong legal assumption that since in the trial conducted against the parents of the petitioner (Sessions Case No.62/2007), learned trial Court allowed marking of the exhibits of the impugned photographs, therefore, now it is [2025:RJ-JP:33068] (10 of 10) [CRLMP-5933/2016] precluded from reviewing its own decision on the same issue. The reasoning of learned trial Court is untenable as the previous case and the case in hand are different session trials, which have been numbered and are being tried distinctly.

14. Thus, from the aforesaid discussions, it is clear that as per the provisions contained in Sections 65-A and 65-B of the Act of 1872, it is well settled principle of law that whenever any secondary evidence of an electronic record is produced before the Court, it cannot be admitted as an evidence without mandatory compliance of the provisions contained therein. As photographs in question have already been exhibited without compliance of the mandatory provisions of law laid down, the said photographs cannot be taken into evidence, therefore, the present petition deserves to be allowed.

15. Accordingly, the present petition is allowed and it is ordered that the photographs i.e. Exhibit P-7 to P-13 exhibited in Sessions Case No.226/2015 (State Vs. Sumit Dubey) cannot be read in evidence as per the provisions contained in Sections 65-A and 65- B of the Act of 1872.

16. Stay application and any other pending applications also stand disposed of. AARZOO ARORA /-- (ASHUTOSH KUMAR),J