TMI Blog2019 (5) TMI 1986X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant. On 12 and 13 November 2012, a meeting took place with the second Accused who is stated to have informed the representatives of the complainant of the amount which will be charged for the settlement of the deal. The prosecution alleges that on 15 November 2012 the complainant met the Respondent at about 7.30 pm near the BDA office. The conversation between the complainant and the Respondent was recorded on the spy camera in the course of which, it has been alleged, there was some discussion in regard to the amount to be exchanged for the completion of the work. 5. On 16 November 2012, a complaint was lodged before the Lokayukta and a first information report was registered. Subsequently, it is alleged that a trap was set up and the second Accused was apprehended while receiving an amount of Rupees five lakhs on behalf of the Respondent towards an initial payment of the alleged bribe. A charge sheet was filed after investigation. 6. Charges were framed for offences punishable Under Sections 7, 8, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 7. The Respondent instituted three successive petitions Under Section 482 of Code of Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd accused; (iv) without considering the nature of that evidence, the High Court prevented the prosecution from placing reliance on such material on the basis of a bald averment that it did not appear to be convincing; (v) in handing over the spy camera to the complainant and the process which followed by recording what transpired at the meeting with the Respondent on 15 November 2012, the investigating officer was only conducting a preliminary inquiry of the nature that is contemplated by the decision of this Court in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1; and (vi) the purpose of the preliminary inquiry was only to enable the prosecution to ascertain whether a cognizable offence was made out. In other words, the utilization of the spy camera during the course of the preliminary inquiry was in the nature of a pre-trap mahazar which fell within the exceptions which have been carved out in the decision in Lalita Kumari. The investigation, it has been urged, would commence only thereafter having due regard to the provisions contained in Section 154 of the Code of Criminal Procedure. 11. On the other hand, while supporting the view which has been taken by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in the Sub-section (1) in respect to the computer output shall be following, namely: (a) the computer output containing the information was produced by computer during the period over which 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 computer. (b) during the said period the 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 for that part of the period, was not such to affect the electronic record or the accuracy of its contents. (d) The informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other information shall be a reference to its being derived therefrom by calculation, comparison or any other process. 14. The provisions of Section 65B came up for interpretation before a three judge Bench of this Court in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473. Interpreting the provision, this Court held: Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed Under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abundantly clear that the High Court has erred, we must also notice the submission of the Appellants that independent of the electronic record, the prosecution is relying on other material. The existence of such material has been adverted to in the charge-sheet. Details of the documents on which the prosecution sought to place reliance find specific mention in the charge-sheet particularly at items 15, 25 and 28 to 31. The High Court rejected this submission of the Appellant on the specious assertion that it is found that, on the face of it, it is not convincing . 18. That leads us to the next limb of a significant submission which has been made on behalf of the Respondent by Mr. Basava Prabu Patil, learned senior Counsel, which merits close consideration. It was urged on behalf of the Respondent that the exercise of 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. This, it has been submitted, is a breach of the parameters which have been prescribed by the judgment of the Constitution Bench of this Court in Lalita Kumari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report. 20. P. Sirajuddin (supra) emphasized the requirement of a preliminary inquiry, where a public servant is alleged to have committed an act of dishonesty involving a serious misdemeanour. The purpose of a preliminary inquiry is to ascertain whether a cognizable offence has been made out on the basis of which a first information report can be lodged. The basis of a first information report Under Section 154 of the Code of Criminal Procedure [154 Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf;] is informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR. 21. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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