Accused is not entitled for default bail u/s.167(2) of Cr.P.C. if chargesheet has already been filed before his surrender in the court

Offence u/s. 420, 406, 409, 465, 467, 468, 471, 120-B of IPC and 7 & 13(1) A of Prevention of Corruption Act, 1988 - Chargesheet against one accused filed on 23.01.2019 - applicant-accused shown as absconded - on 23.11.2019 applicant-accused surrendered before the court - application for default bail u/s.167(2) of Cr.P.C. filed om 24.02.2020

Held: It is not essential for a person to be arrested before chargesheet can be presented against him. The only requirement for applicability of the proviso to Section 167(2) Cr.P.C. is that investigation should be pending against the petitioner-accused and no investigation can be said to be pending if chargesheet is filed before his arrest or surrender before the court.

   A perusal of the challan presented on 23.01.2019, a copy whereof is annexed as Annexure P-2, shows that list of the case property had been filed therewith along with a list of witnesses. Thereafter, the facts of the case have been narrated. The last few lines are reproduced:-

"The warrants have been got issued from the Learned Illaqa Magistrate against Sandeep Kumar son of Jagdish Chander r/o Panj Ke Utar Police Station Guruharsahai, Rishu Matneja w/o Sandeep Kumar r/o Panj Ke Utar Police Station Guruharsahai, Jaswinder Pal Singh son of Gurmeet Singh r/o Dashmesh Nagar Jalalabad, Jasmeet Singh son of Amarjeet Singh r/o Jalalabad. Hansa Singh, Inspector Grade 2, resident of Shamshabad, District Fazilka, Harpreet Singh son of Gurmeet Singh resident of Dashmesh Nagar, Jalalabad and after arresting them supplementary challan would be presented in the court and after getting evidence of involvement of staff of Punjab National Bank, a separate supplementary challan would be submitted against them. The pending enquiry of the case after taking the record and thereafter supplementary challan shall be presented. As per the evidence, the investigation till and the evidence collected on file challan under Sections 420, 465, 467, 468, 471, 406, 120-B IPC against accused Sandeep Kumar is required to be presented and the same after being prepared against Sandeep Kumar under Sections 420, 465, 467, 468, 471, 406, 120-B IPC is being presented to the Court. The witnesses mentioned
in Column no.6 shall give their statements as required."[Para No.11]

From the aforementioned reproduction from the challan it is evident that evidence necessary for commencement of trial against the petitioner and his co-accused has/had been collected by the investigating agency. The petitioner was kept in column No.2 only because he had not been arrested as is the practice in the State of Punjab. Learned counsel for the petitioner has not refuted the submission of the learned State counsel that such a practice exists in the State of Punjab. Warrants of arrest had been requested for and this would not have been the case if the petitioner had not been found guilty. The challan dated 24.02.2020 against the petitioner was only a formality. In Dinesh Dalmia (supra) it has been held as follows:-

In matrimonial dispute, secret recording is admissible in evidence if found to be relevant

Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court

Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute?

Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the  purpose of deciding the matrimonial dispute between the parties.

   The sequitur to the aforesaid constitutional and legal landscape is that :

(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;

Deposition of witness and certificate u/s.65B is sufficient to prove electronic evidence

How to prove photos and screenshot sent by one person to another? (Mode of proof)

Can snapshot of chat from a mobile handset be read in evidence without producing that mobile handset?

Matrimonial dispute - divorce sought by husband - Ground of adultery - Husband received photos, telephonic conversation and snapshot of chat between wife and her lover - Electronic evidence - Mode of proof - compliance to be made 

Held: Witness produced certificate u/s.65B and deposed that he had taken the print outs from the mobile phone, deserves to be read in evidence.

   Learned counsel for the wife contended that the photographs placed on the file as Annexures A-1 to A-8, do not stand duly proved on the record as required under Section 65-B of the Indian Evidence Act, 1872 (for short 'the Act of 1872') and in support of this contention, he relied upon Anvar P.V. vs. P.K. Basheer and others, 2015(1) SCC (Civil) 27, wherein the Hon'ble Apex Court observed that "in case of CD, VCD, chip, etc., the same would be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, was inadmissible."[Para No.9]

   However, we do not find this contention to be tenable because PW-4 Sunil Kumar, the photographer, tendered the original certificate under Section 65B of the Act of 1872 on the record as Ex.PW-4/A and he also specifically deposed that he had taken the print out of the photographs, i.e. Annexures A-1 to A-8, from the internal memory of the mobile phone brought to his shop by the husband. Moreover, in a subsequent verdict, as rendered by the Hon'ble Supreme Court in the case titled as State by Karnataka Lokayukta Police Station, Bengaluru vs M. R Hiremath, 2019 (3) SCC (Cri) 109, it has been held while referring to the above- discussed observations, as made in Anvar P.V.'s case (supra), that :-