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2019 (5) TMI 1986 - SC - Indian LawsRejection of application for discharge Under Section 239 of the Code of Criminal Procedure - Requirement of production of a certificate for leading secondary evidence u/s 65 B of IEA - HELD THAT:- Section 65B(4) is attracted in any proceedings "where it is desired to give a statement in evidence by virtue of this section". Emphasising this facet of Sub-section (4) the decision in Anvar [2014 (9) TMI 1007 - SUPREME COURT] holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. The same view has been reiterated by a two judge Bench of this Court in Union of India and Ors. v. CDR Ravindra V. Desai [2018 (4) TMI 1939 - SUPREME COURT]. The Court emphasised that non-production of a certificate Under Section 65B on an earlier occasion is a curable defect. The High Court erred in coming to the conclusion that the failure to produce a certificate Under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise. The investigating officer handing over a spy camera to the complainant on 15 November 2012 would indicate that the investigation had commenced even before an FIR was lodged and registered on 16 November 2012 or not - HELD THAT:- In the present case, on 15 November 2016, the complainant is alleged to have met the Respondent. During the course of the meeting, a conversation was recorded on a spy camera. Prior thereto, the investigating officer had handed over the spy camera to the complainant. This stage does not represent the commencement of the investigation. At that stage, the purpose was to ascertain, in the course of a preliminary inquiry, whether the information which was furnished by the complainant would form the basis of lodging a first information report. In other words, the purpose of the exercise which was carried out on 15 November 2012 was a preliminary enquiry to ascertain whether the information reveals a cognizable offence. The High Court has erred in coming to the conclusion that in the absence of a certificate Under Section 65B when the charge sheet was submitted, the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court has evidently lost sight of the other material on which the prosecution sought to place reliance. Finally, no investigation as such commenced before the lodging of the first information report. The investigating officer had taken recourse to a preliminary inquiry. Appeal allowed.
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