COURT NO.

2, ARMED FORCES TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

OA 243/2013
Wing Commander Brijesh Shukla …Petitioner
VERSUS
Union of India & Ors …Respondents

For petitioner : Mr. Harsh Parashar & Mr. SS Pandey,

Advocates
For Respondents : Mr.Ajai Bhalla, Advocate

ORDER
20.07.2015

Notes of the Registry Orders of the Tribunal

Vide separate judgment, the petition is
20.07.2015 allowed. No order as to costs. The
learned counsel for the respondents
made an oral request for leave to appeal
before the Hon‟ble Supreme Court. We
find no substantial question of law of
general public importance involved in the
matter. Hence, the application for leave to
appeal before the Hon‟ble Supreme Court
is rejected.

( J.N. BURMA ) (SUNIL HALI)

MEMBER (A) MEMBER (J)

New Delhi
20.07.2015
nsv

1
 COURT NO. 2, ARMED FORCES TRIBUNAL
PRINCIPAL BENCH, NEW DELHI

OA 243/2013
Wing Commander Brijesh Shukla …Petitioner
VERSUS
Union of India & Ors …Respondents

For petitioner : Mr. Harsh Parashar & Mr. SS Pandey

Advocates
For Respondents : Mr.Ajai Bhalla, Advocate

ORDER
20.7.2015
By Justice Sunil Hali

The petitioner is a serving Wing Commander in the Indian Air

Force. While he was posted in Srinagar, on 7.12.2009, he availed LTC

for the period 2011-2012. He also, during his tenure at Srinagar,

travelled by air on temporary duty to various destinations in the country.

He availed the LTC for the year 2011-12 and performed journey to

Havelock Island along with his family on the air ticket issued by Air India.

In 2012, he performed a journey to Kibitu (Arunachal Pradesh) along with

his family on the air tickets issued by Air India. The petitioner was sent

on temporary duties while being posted at Srinagar and he had

purchased air tickets from “Sethi Travels” or Air India booking office. The

petitioner took the refund of cost of air travels that he undertook during

this period, details of are reproduced in subsequent paragraphs.

2. During a vigilance check of the accounts section by the 11 Provost

& Security Staff, a random check of LTC claims preferred by officers was

undertaken. During the check, some irregularities were detected in the

LTC claim for the year 2012 preferred by the petitioner. The same were

intimated to Headquarters Western Air Command which ordered that the

matter may be inquired into through a Court of Inquiry. Accordingly, a

Court of Inquiry to inquire into the veracity and authenticity of the LTC

2
claims submitted by the petitioner for the years 2011 and 2012 and any

other relevant matter was ordered by the AOC, Air Force Station,

Srinagar. The Court of Inquiry prepared a list of 22 tickets on which

journeys had been undertaken by the petitioner on LTC and while

travelling on temporary duty. It sought verification of the tickets from Air

India database. The tickets available on the database indicated a

substantial difference in the fares on the tickets produced by the

petitioner while preferring the claims with those of the ticket procured

through the Air India database on which he had actually travelled. The

Court of Inquiry came to the conclusion that an organized fraud was

committed by the petitioner by inflating the amount which did not tally with

the records maintained by the Air India database. The Court of Inquiry

concluded that the tickets had been forged by the petitioner to prefer

inflated claims. Following irregularities were found, the details of which

are given below :

S.N Period Details of Amount Amount Loss

o. Claim Claimed Admissible caused to
the State
1. March TD claim to Rs. 8256/- Rs.7256/- Rs.1000/-
2011 Amritsar Rs.11,492/- Rs.6391/- Rs.5101/-
(SRI-ASR)
(ASR-SRI)
2. April TD claim to Rs. 7018/- Rs. 6408/- Rs. 610/-
2011 Gwalior
(SRI-DEL)
3. August LTC Claim Rs.1,97,979/- Rs.89,412/- Rs.108567/-
2011 for the year
2011
4. Nov 2011 TD Claim Rs. 7481/- Rs.3307/- Rs.4174/-
Dec 2011 to Jodhpur Rs. 23,547/- Rs.15,637/- Rs. 7910/-
(SRI-DEL)
(JOD-SRI)
5. January LTC Claim Rs.1,68,981/- Rs.64,776/- Rs.104205/-
2012 for the year
2012
Rs.231567/-

3. The details of various journeys undertaken by the petitioner are

given below :

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(a) LTC claim 2011 to Havelock Island (Por Blair):

The petitioner had booked the tickets for onward journey for a date

which was subsequently cancelled by him but the refund amount was not

paid to him instantly on account of cash not being available with Air India.

On a subsequent day, he went to town and collected the refund for the

journey to be undertaken at a later date. The claim preferred by the

petitioner contained tickets bearing e-ticket numbers for journey between

27th August and 09th September, 2011 from Srinagar to Port Blair and

back, details of which are given below:

Wg Cdr Shukla 0982101297248 - 249 - Rs. 65,993/-

Mrs. Shukla 0982101297250 – 251 – Rs. 65,993/-
Mast Shukla 0982101297252 – 253 – Rs. 65,993/-

4. When the bonafides of the ticketing carried out by the petitioner

was checked by the Court of Inquiry with the Air India office, they

produced the LTC 80 tickets issued to the petitioner on 06.08.2011

available on their database and which had been cancelled by him on

08.08.2011 for journey between 27th August and 9th September, 2011

from Srinagar to Port Blair and back with the following details :

Wg Cdr Shukla 0982101297223 – 224 - Rs. 61,993/-

Mrs. Shukla 0982101297227 – 228 – Rs. 61,993/-
Mast Shukla 0982101297225 – 226 – Rs. 61,993/-

5. The petitioner thereafter booked the tickets on 08.08.2011 for the

same dates from Srinagar to Port Blair which showed the following details

on which he had actually travelled :

Wg Cdr Shukla 0982101297248 - 249 - Rs. 29,804/-

Mrs. Shukla 0982101297250 – 251 – Rs. 29,804/-
Mast Shukla 0982101297252 – 253 – Rs. 29,804/-

6. The allegation against the petitioner was that the petitioner had

preferred a claim with the respondents for refund of higher amount tickets

(LTC) on the dates initially planned by him. At the time of submitting the

4
claims, the LTC 80 tickets produced by him, bore the same numbers as

of the low priced tickets purchased by him from The Air India office on

08.08.2011. It is further alleged that only the e-ticket number is

mentioned on the boarding pass and no fares are mentioned thereon.

Therefore, it became possible for the petitioner to perpetrate a fraud

wherein one could travel on a low priced ticket and prefer a claim through

a fake LTC ticket with an inflated fare as was done by the petitioner as a

consequence of which he had caused wrongful gain to himself to the

extent of Rs.1,08,567/- on account of the forged LTC claim preferred for

the year 2011.

(b) LTC Claim 2012 to Kibitu (Arunachal Pradesh):

The petitioner is stated to have purchased the tickets from the

counter while paying the amount in cash. The claim preferred by the

petitioner for this journey from Srinagar to Dibrugarh and back for the

period from 21 January to 5 February, 2012 had the following particulars :

Wg Cdr Shukla 0982102253988 - 989 - Rs. 56,327/-

Mast Shukla 0982102253990 – 991 – Rs.56,327/-
Mrs. Shukla 0982102253992 – 993 – Rs.56,327/-

7. When the tickets were checked by the Court of Inquiry with the

details of the journeys undertaken by the petitioner on the Air India

database, it was revealed that the petitioner had bought tickets for the

journey from Srinagar to Dibrugarh and back for the period from 21

January to 5 February, 2012 on 10th December, 2011, with the following

particulars :

Wg Cdr Shukla 0982102253988 - 989 - Rs.21,592/-

Mast Shukla 0982102253990 – 991 – Rs.21,592/-
Mrs. Shukla 0982102253992 – 993 – Rs.21,592/-

8. The petitioner had actually flown on a low priced ticket as indicated

in the Air India database whereas he had preferred a claim which

indicated a substantially inflated figure on tickets with identical ticket

numbers.

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(c) Travel from Srinagar to Jodhpur via New Delhi and back:

The details of the said journey are given below :

Date From To Ticket No. Fare

23 Nov 11 Srinagar New Delhi 0983573571910 Rs. 7,481/-
03 Dec 11 Jodhpur New Delhi 0983573877453 Rs. 23,547/-
04 Dec 11 New Srinagar
Delhi
Total Rs. 31,028

9. The petitioner stated that tickets for the return journey undertaken

on 03/04 December, 2011 were purchased through Mr. Gurpreet Singh

who operates a travel agency at Srinagar. As per the records maintained

by the travel agent, the tickets cost Rs. 15,637/- whereas the petitioner

claims that he had paid Rs. 23,547/- to the travel agent. It was found

during the Court of Inquiry that the record produced by the travel agent

was close to the figure available on the Air India database. As such, the

records of the travel agent were found to be correct. On a further

scrutiny, it was found that while travelling from Srinagar to Delhi, as per

the records in Air India database, the ticket price was Rs. 3,307/- against

the claim amount of Rs. 7,481/- preferred by the petitioner. Therefore,

while undertaking this journey from Srinagar to Jodhpur and back, he

defrauded the public exchequer to the tune of Rs. 12,084/-.

(d) Temporary Duty claims for move to Amritsar in March, 2011:

The petitioner had proceeded on temporary duty to Amritsar from

Srinagar and had undertaken air journeys as per the following details :

Date From To Ticket No. Fare

10 Mar 11 Srinagar Delhi 1766806096 Rs. 4,202/-
Delhi Amritsar 1766806098 Rs. 4,054/-

Total Rs. 8,256/-

26 Mar 11 Amritsar Delhi 1766972654 Rs.5,582/-
Delhi Amritsar 1766972648 Rs.5,910/-
Total Rs.11,492/-
Total on account of air journey for both the legs Rs. 19,746/-

6
10. The petitioner had bought tickets from Sethi Travels on 04.03.2011

and the amount paid to the travel agent on this account was Rs. 7,256/-.

The travel agent had denied having issued any such tickets. The

petitioner had preferred inflated claims thereby causing a loss of Rs.

1000/- to the public fund. The return ticket from Amritsar to Delhi was

bought by the petitioner through Internet using the services of the

ticketing portal. The tickets had been bought by using a Credit Card with

„9034‟ as the last four digits. Therefore, the petitioner having spent only

Rs. 13,647/- on account of the air journeys, preferred a claim of Rs.

19,746/- and thereby caused wrongful gain to himself to the extent of Rs.

6,101/-.

(e) Temporary Duty claims for move to Gwalior in April, 2011:

In this case, the petitioner had preferred an inflated claim and

enriched himself to the extent of Rs. 610/-. The Court of Inquiry in its

report, concluded that the modus operandi followed by the petitioner was

to book genuine tickets from Air India initially to have template of original

LTC-80 tickets/higher price tickets by photocopying or by storing in soft

copy and later cancel the genuine tickets. Then, book low fare tickets for

the intended routes for same dates. But while preferring the claims to

account Section, submit the morphed LTC-80 tickets/higher price ticket

which bore the ticket numbers of the tickets on which he has actually

travelled. The Court of Inquiry also found that the petitioner had also

morphed Air India e-tickets for temporary duty journeys undertaken by

him during his tenure at Air Force Station, Srinagar. Most of these tickets

were either booked online or through travel agent, Sethi Travels,

Srinagar. The Court of Inquiry ruled out the possibility of involvement of

Air India Staff at city booking office, Srinagar and Sethi Travels in any

kind of fraud related to the claims submitted by the petitioner. The tickets

produced by the petitioner were exact replica of an otherwise genuine e-

ticket and thus accounts section did not have any means to detect such

irregularities at the time of processing the claims.

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11. The Court of Inquiry was concluded on 07.09.2012 which found

that the petitioner was guilty for preferring fraudulent LTC and temporary

duties claims for wrongful gains and for causing financial loss to the state.

On the conclusion of the Court of Inquiry, direction was issued to initiate

disciplinary proceedings against the petitioner as a result of which

recording of Summary of Evidence was ordered on 30.09.2012, which

concluded on 12.10.2012. On the basis of the recommendations made

by the convening authority, the GCM was to assemble at Air Force

Station, Srinagar in the second week of April, 2013.

12. It appears that the petitioner had also filed an FIR before PS,

Humhama, Police post, Airport Road, Srinagar. The FIR was filed

against M/s. Sethi Travels for having committed irregularities in bookings

carried out by him on behalf of the petitioner. In view of the complaint

dated 17.10.2012 filed by the petitioner, the Senior Superintendent of

Police, Budgam and Superintendent of Police, City, East Zone, Srinagar

had stated vide his report dated 26.04.2013 that the complaint was not

based on facts and was filed with malafide intentions. After the

convening of the GCM, the proceedings were deferred by two months to

await the report of the local police. After considering the report of the

police, the Convening Authority ordered the GCM to be continued. It is

this order which is the subject matter of challenge before this court.

13. Amongst the various grounds taken by the petitioner in his petition,

his main contention is that there is no legal evidence to sustain the

charges leveled against him. It is contended by the learned counsel for

the petitioner that the only evidence on the basis of which the prosecution

has prepared its case, is the electronic evidence which has been

generated from the computer which is not admissible in evidence as it

does not prescribe to the requirements of Section 65(B) of the Indian

Evidence Act. Therefore, in the absence of any legal evidence, the trial

cannot proceed. The respondents were required to procure the evidence

under section 65 (B) by following the procedure laid down therein which

8
has not been done in the present case. That being the position, putting

the accused on trial when it is known at this stage that the evidence on

the basis of which the prosecution has relied, is inadmissible and

proceedings in the trial will be a futile exercise. Therefore, the

respondents are bound under the law to conform to the requirements of

Section 65(B) before it is read in evidence.

14. There are other grounds taken by the petitioner in his petition but

since the present contention raised by the learned counsel for the

petitioner go to the root of the matter, we thought it proper to dispose off

this petition after considering the arguments of the parties with respect to

the admissibility of this evidence under section 65 (B) of the Indian

Evidence Act.

15. The respondents stated that objection to the admissibility of the

document was not raised at the time when document was tendered

during the recording of summary of evidence. It cannot be raised

subsequently. The second contention is that Indian Evidence Act is

applicable before the Court Martial in terms of Section 132 of the Air

Force Act and not before the recording of summary of evidence. Even if

it is presumed that the certificate has not been presented in accordance

with law, the same can be proved by secondary evidence by taking resort

to Sections 63 and 65 of the Evidence Act.

16. We have heard the learned counsels for the parties.

17. The contention raised by the learned counsel for the petitioner is

that the Indian Evidence Act does not contemplate or permit the proof of

an electronic record by oral evidence under Section 65(B) of the

Evidence Act. In order to understand this controversy, it is necessary to

quote Section 65(B) of the Evidence Act :

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“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 of any contents of the
original or of any fact stated therein or which direct evidence
would be admissible.

(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 materiel 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 functions of storing or

processing information for the purposes of any activities of any
regularly carried on over that period as mentioned in clause
(a) of sub-section (2) was regularly performed by computer,
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.

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all the computers used for that purpose during that period
shall be treated for the purposes of this section as constituting
a single computer; 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 purpose 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 other information shall be a
reference to its being derived there from by calculation,
comparison or any other process.”

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18. Electronic record produced for inspection of the court is a

documentary evidence under Section 3 of the Evidence Act and any

documentary evidence by way of electronic record under the Evidence

Act can be proved only in accordance with the procedure prescribed

under Section 65(B) of the Evidence Act. As per the law laid down by the

Apex Court in (2014) 10 Supreme Court Cases 473 titled as Anvar P.V.

Vs. P.K. Basheer and Others, the court observed that under Section 65-

B(4) of the Evidence Act, if it is desired to give a statement in any

proceedings pertaining to an electronic record, it is permissible provided

the following conditions are satisfied :

(a) There must be a certificate which should identify the

electronic record containing the statement;

(b) The certificate must describe the manner in which the

electronic record was produced;

(c) The certificate must furnish the particulars of the device

involved in the production of that record;

(d) The certificate must deal with the applicable conditions

mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a

responsible official position in relation to the operation of the

relevant device.

19. It would be necessary to observe what the Apex Court has stated:

“The person concerned occupying the responsible official

position concerned need only to state in the certificate that the
same is to the best of his knowledge and belief. Most
importantly, such a certificate must accompany the electronic
record like computer printout, compact disc (CD), video
compact disc (VCD), pen drive etc., which contains the
statement which is sought to be given in evidence, when the
same is produced in evidence. All these safeguards are taken
to ensure the source and authenticity, which are the two
hallmarks pertaining to electronic record sought to be used as
evidence. Electronic records being more susceptible to
tampering, alteration, transposition, excision etc., without such

12
 safeguards, the whole trial based on proof of electronic
records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of
Section 65-B of the Evidence Act, would the question arise as
to the genuineness thereof and in that situation, resort can be
made to Section 45-A of the Evidence Act – opinion of
Examiner of Electronic Evidence can be sought.
The Evidence Act does not contemplate or permit the proof of
an electronic record by oral evidence if requirements under
Section 65-B of the Evidence Act are not complied with, as the
law now stands in India.
It is relevant to note that Section 69 of the Police and Criminal
Evidence Act, 1984 dealing with evidence on computer
records in the United Kingdom was repealed by Section 60 of
the Youth Justice and Criminal Evidence Act, 1999. Computer
evidence hence must follow the common law rule, where a
presumption exists that the computer producing the evidential
output was recording properly at the material time. The
presumption can be rebutted if evidence to the contrary is
adduced. In the United States of America, under Federal Rule
of Evidence, reliability of records normally go to the weight of
evidence and not to admissibility.
Proof of electronic record is a special provision introduced by
the Information Technology Act, 2000 amending various
provisions under the Evidence Act. The very caption of
Section 65-A of the Evidence Act read with Sections 59 and
65-B thereof is sufficient to hold that the special provisions on
evidence relating to electronic record shall be governed by the
procedure prescribed under Section 65-B of the Evidence Act.
That is a complete code in itself. Being a special law, the
general law under Sections 63 and 65 of the Evidence Act has
to yield. Generalia specialibus non derogant: the special law
will always prevail over the general law. Hence, Sections 63
and 65 of the Evidence Act 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. 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 of the Evidence Act obtained at the time of taking the
document, without which, the secondary evidence pertaining
to that electronic record, is inadmissible.”

20. The import of judgment clearly envisages that if the electronic

record is produced in terms of the conditions laid herein, can it be said to

be an admissible evidence unless safeguards as enshrined hereinabove

are ensured? The source and authenticity of the said evidence will

always be a suspect and as such, a record is capable of being

susceptible to tampering, alteration, transposition etc. Unless such

safeguards are taken into consideration, the whole trial based on the

13
proof of electronic record can lead to travesty of justice. If this evidence

is not supported by a certificate in terms of Section 65-B of the Evidence

Act which has to be obtained at the time of taking the document on

record, such an evidence shall be inadmissible. Therefore, any trial

which proceeds on such an evidence would be illegal. The Apex Court

has also observed that following specified conditions of Section 65-B(2)

are to be satisfied:

(i) The electronic record containing the information should

have been produced by the computer during the period over which

the same was regularly used to store or process information for the

purpose of any activity over the use of that computer;

(ii) The information of the kind contained in electronic or of the

kind from which the information is derived was regularly fed into

the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer

was operating properly and that even if it was not operating

properly for some time, the break or breaks had not affected either

the record or the accuracy of its contents; and

(iv) The information contained in the record should be a

reproduction or derivation from the information fed into the

computer in the ordinary course of the said activity.

21. The court further goes on to observe under Section 65-B(4) of the

Evidence Act that if it is desired to give a statement in any proceedings

pertaining to an electronic record, it is permissible provided the following

conditions are satisfied :

(a) There must be a certificate which identifies the electronic

record containing the statement;

(b) The certificate must describe the manner in which the

electronic record was produced;

14
 (c) The certificate must furnish the particulars of the device

involved in the production of that record;

(d) The certificate must deal with the applicable conditions

mentioned under Section 65-B (2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a

responsible official position in relation to the operation of the

relevant device.

22. Such a certificate must accompany electronic record like

computer printout, compact disc (CD), Video Compact Disc (VCD), pen

drive etc. pertaining to which a statement is sought to be given in

evidence, when the same is to be produced in evidence.

23. The court also observed that the special provisions on evidence

relating to the electronic record shall be governed by the procedure

prescribed under Section 65-B of the Evidence Act. That is a complete

code in itself. Being a special law, the general law under Sections 63

read with Section 65 shall yield to the same. The principle that special

law will always prevail for the general law, apply in the present case also.

24. Applying this principle in the present case, we are required to see

as to whether there has been strict compliance of Section 65-B of the

Evidence Act.

25. It is the admitted case of the respondents that the variations found

in the tickets on which the petitioner has claimed the refund, was

detected by generating hard copies of the tickets for the journeys which

were available on the Air India database. Therefore, the sole evidence

on the basis of which the petitioner has been put to trial is that he had

travelled at a low fared ticket which evidence is available in Air India

database. The said hard copies were produced by the Airport Manager

which related to the journeys undertaken by the petitioner. Admittedly,

the procedure and safeguards required under Section 65-B has not been

15
complied with in the present case. All that has been produced is the hard

copies which have been issued by the Airport Manager which relate to

the journeys undertaken by the petitioner which was available on the Air

India database. This, by itself, does not conform to provisions of Section

65-B of the Evidence Act, as, admittedly, the following things are missing:

(a) Certificate which should identify the electronic record

containing the statement;

(b) The manner in which the electronic record was produced;

(c) Particulars of the device involved in the production of the

record;

(d) The certificate must be signed by a person occupying a

responsible official position in relation to the operation of the

relevant device.

26. Admittedly, none of these things have been shown by the

respondents nor are they available on the record. Therefore, it is

apparent that the records produced through an electronic device as a

piece of secondary evidence without complying with the safeguards, as

provided under Section 65-B cannot be relied upon. The evidence

produced should be in consonance with the directions passed by the

Apex Court hereinabove. The conclusion as on today is that the only

evidence produced is in the form of hard copies issued from the Air India

database of tickets on which the petitioner travelled and the same is an

evidence, which, per se, is not admissible. All the safeguards have to be

ensured before the documentary evidence in the shape of electronic

record, is produced. This exercise has to be done before the accused is

put to trial.

27. Faced with this situation, we are not inclined to agree with the

submissions of the learned counsel for the respondents that these

requirements are to be complied with during the course of trial. It is trite

16
that the court‟s power of interfering at this stage is limited and can be

exercised only in the following circumstances:

(i) If the facts contained in the charge-sheet remained un-

rebutted, it will not lead to conviction of the accused;

(ii) That there must be a legal evidence to sustain the charges

against the accused;

(iii) That the charges are fair and not actuated by

malafideys.

28. Admittedly, in the present case, the only evidence on which the

respondents are relying, is the electronic record which is in the shape of a

secondary evidence. Since the evidence is not admissible in law, putting

the accused on trial on the basis of an evidence which is inadmissible,

would lead to miscarriage of justice. The Convening Authority at the time

of taking a decision to put the accused on trial, was required to examine

all these questions. It has to be concluded on the basis of the evidence

which is produced that the accused can be put to trial. If there is no legal

evidence, putting the accused to trial would amount to abuse of the

process of law. In this context, the Apex Court in State of Haryana &

Others Vs. Bhajan Lal, 1992 Supp (1) Supreme Court Cases, Page 335,

has observed as under :

“The following categories of cases can be stated by way of

illustration wherein the extraordinary power under Article 226
or the inherent powers under Section 482 CrPC can be
exercised by the High Court either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise,
clearly defined and sufficiently channelized and inflexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.

(2) Where the allegation in the first information report and

other materials, any, accompany the FIR do not disclose a
cognizable offence, justifying an investigation by police

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 officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2)
of the Code.

(3) Where the uncontroverted allegations made in the FIR or

complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a

cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so

absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there
is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.

(7) Where a criminal proceeding is manifestly attended with

mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”

29. While referring to the above judgment, the court has observed in

one of the illustrations that where the uncontroverted allegations made in

the FIR or complaint and the evidence collected in support of the same

do not disclose the commission of any offence or make out a case

against the accused, the trial shall not proceed.

30. Therefore, it has clearly been emphasized that the evidence

collected in support of the same does not disclose the commission of any

offence it will not be appropriate to put the accused on trial. This would

tantamount to the abuse of process of law.

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31. In view of the above, we quash the Convening order, passed by

the respondents to put the accused on trial, dated 10.07.2013. The

respondent may, if they so choose, take recourse to the appropriate

remedy available with them. No order as to costs.

( J.N. BURMA ) (SUNIL HALI)

MEMBER (A) MEMBER (J)

New Delhi
20.07.2015
nsv

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