Case Note & Summary
The case arises from a criminal revision petition filed by Sri G.M. Kumar (petitioner) against Sri Kishan Hegde (respondent) in a defamation matter. The petitioner was convicted by the trial court for defamation based on a CD (Ex.P1) allegedly containing a defamatory statement telecast on 29.03.2017 and 30.03.2017. The petitioner appealed the conviction before the First Appellate Court (Principal District and Sessions Judge, Udupi) in Crl.A.No.58/2023. During the appeal, the petitioner filed an application under Section 391(2) read with Section 207(v) of Cr.P.C. seeking a direction to the respondent to produce the mobile handset (Apple-7 model) and SIM card from which the CD was allegedly retrieved. The petitioner contended that the CD was fabricated because: (i) 30.03.2017 was Ugadi festival when anchors traditionally wear ethnic dress, but the CD showed the anchor in a suit and tie; (ii) the Section 65B certificate mentioned the data was stored in an Apple-7 mobile phone, but the recording was of a TV telecast. The First Appellate Court rejected the application on 12.03.2024, leading to the present revision petition. The High Court heard the matter for admission. The petitioner's counsel argued that the production of the mobile handset was essential to verify the authenticity of the CD. The Court observed that the appellate court has discretion under Section 391(2) to permit additional evidence only if it is necessary for a just decision. The petitioner failed to show any prejudice or tampering with the evidence. The Court noted that the issues raised by the petitioner regarding the CD's authenticity could be agitated during the trial or appeal on merits, and the application appeared to be a delaying tactic. The High Court dismissed the revision petition, upholding the order of the First Appellate Court.
Headnote
A) Criminal Procedure Code - Section 391(2) - Additional Evidence at Appellate Stage - Application for Production of Mobile Handset - The petitioner sought direction to the respondent-complainant to produce the mobile handset and SIM card from which the alleged defamatory CD was retrieved, contending that the CD was fabricated. The First Appellate Court rejected the application. The High Court held that the appellate court has discretion under Section 391(2) to permit additional evidence only if it is necessary for a just decision, and the petitioner failed to demonstrate any prejudice or tampering. The revision petition was dismissed. (Paras 2-6) B) Evidence Act, 1872 - Section 65B - Electronic Evidence - Certificate - The petitioner argued that the certificate under Section 65B appended to the CD was defective as the mobile phone model mentioned did not match the alleged recording. The Court noted that such issues could be raised during trial and did not warrant production of the handset at the appellate stage. (Paras 3-5) C) Criminal Procedure Code - Section 207(v) - Supply of Documents - The petitioner invoked Section 207(v) to seek production of the mobile handset. The Court held that Section 207(v) pertains to supply of copies of documents to the accused and cannot be used to compel production of physical evidence at the appellate stage. (Paras 2, 6)
Issue of Consideration
Whether the First Appellate Court erred in rejecting the application filed under Section 391(2) read with Section 207(v) of Cr.P.C. seeking direction to the complainant to produce the mobile handset and SIM card from which the alleged defamatory CD was retrieved.
Final Decision
The High Court dismissed the revision petition, upholding the order of the First Appellate Court rejecting the application under Section 391(2) Cr.P.C.
Law Points
- Section 391(2) Cr.P.C.
- Section 207(v) Cr.P.C.
- Section 65B Evidence Act
- 1872
- Electronic Evidence
- Appellate Court Powers
- Revision Petition
