"The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial."

Failure to produce a certificate under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed is not fatal to the prosecution, the Supreme Court has held in State of Karnataka vs. M. R. Hiremath.

An official accused of corruption filed a petition before the Karnataka High Court challenging the Trial Court order refusing to discharge him in a criminal case. Allowing the petition, the High Court held that in the absence of a certificate under Section 65B of the Evidence Act, secondary evidence of the electronic record based on the spy camera is inadmissible in evidence. It also observed that the prosecution is precluded from supplying any certification "at this point of time" since that would be an afterthought. It was further held that the case of the prosecution that apart from the electronic evidence, other evidence is available is 'on its face unconvincing'.

The Court, on appeal filed by the state, observed that the High Court erred in concluding 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. It said:

"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."

Setting aside the High Court order, the court also reiterated that, at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.