SHASHMITA NAYAK vs STATE OF ODISHA
- Court
- Odisha High Court
CRLREV/997/2025
ODHC010876652025
2026:OHC:138
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.997 of 2025
CNR No. ODHC010876652025
In the matter of an application under Section 401 of
Cr.P.C.
------------------
Shashmita Nayak …. Petitioner
-versus-
1. State of Odisha
2. Surendra Kumar
Gantayat @ Suresh
Kumar Gantayat
…. Opposite Parties
Amicus Curiae
: Mr. Debasis Sarangi,
Advocate
For Petitioners : Mr.A.K. Mohanty, Advocate
For Opposite Party : Mr. S. Panigrahi, ASC
Mrs. S. Biswal, Adv.(O.P.
No.2)
CORAM:
JUSTICE V. NARASINGH
DATE OF HEARING : 13.07.2026
DATE OF JUDGMENT : 19.09.2026
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CRLREV No. 997 of 2025
V. Narasingh, J. Heard learned counsel for
the Petitioner, learned counsel for the State and
learned counsel for the Opposite Party No.2.
1. Being aggrieved by the order dated
st
02.11.2025 passed by the learned 1 Additional
Sessions Judge, Cuttack in S.T. Case No.35 of
2022 arising out of Markat Nagar P.S. Case
No.207 of 2021, the present CRLREV has been
filed by the Informant.
2. In the said proceeding, Opposite Party No.
2, the accused, has been charge-sheeted for
commission of the offences allegedly under
1 2 3 4 5
Sections 354 /354-A /376(2)(n) /294 /506 of
the IPC.
1
354. Assault or criminal force to woman with intent to outrage
her modesty .—Whoever assaults or uses criminal force to any woman,
intending to outrage or knowing it to be likely that he will thereby
1
outrage her modesty, [shall be punished with imprisonment of either
description for a term which shall not be less than one year but which
may extend to five years, and shall also be liable to fine.
2
354-A. Sexual harassment and punishment for sexual
harassment .—(1) A man committing any of the following acts—
( i ) physical contact and advances involving unwelcome and explicit
sexual overtures; or
( ii ) a demand or request for sexual favours; or
( iii ) showing pornography against the will of a woman; or
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3. To drive home the charge, 21 charge-
sheeted witnesses have been enlisted by the
prosecution, out of whom admittedly five have
already been examined.
Post receipt of summons, the Informant
appeared and took time for engagement of
( iv ) making sexually coloured remarks,
shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause ( i ) or
clause ( ii ) or clause ( iii ) of sub-section (1) shall be punished with
rigorous imprisonment for a term which may extend to three years, or
with fine, or with both.
(3) Any man who commits the offence specified in clause ( iv ) of
sub-section (1) shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or
with both.
3
376. Punishment for rape.— (2) Whoever,—
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term which shall
not be less than ten years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of that person's
natural life, and shall also be liable to fine.
4
294. Obscene acts and songs .—Whoever, to the annoyance of
others,—
( a ) does any obscene act in any public place, or
( b ) sings, recites or utters any obscene songs, ballad or words, in or
near any public place,
shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine, or with both.
5
506. Punishment for criminal intimidation
.—Whoever commits
the offence of criminal intimidation shall be punished with imprisonment
of either description for a term which may extend to two years, or with
fine, or with both;
if threat be to cause death or grievous hurt, etc .—and if the threat
be to cause death or grievous hurt, or to cause the destruction of any
property by fire, or to cause an offence punishable with death or
1
[imprisonment for life], or with imprisonment for a term which may
extend to seven years, or to impute unchastity to a woman, shall be
punished with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
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counsel and filed a petition dated 23.06.2025 for
adducing evidence by introducing a pen drive
stated to contain recordings of the Petitioner
along with that of the accused, which, according
to the Informant, has a direct bearing on the
point at issue and non-consideration of the same
would result in prejudice to her cause.
The same having been rejected by order
dated 03.09.2025, the Informant approached this
6
Court by filing CRLREV No.753 of 2025 . By order
dated 16.10.2025, this Court, on consideration of
the rival submissions of the learned counsel for
the State and the accused and taking into account
7
that an application under Section 65-B of the
6
Shashmita Nayak v. State of Odisha , CRLREV No. 753/2025, disposed
of on 16.10.2025 (Orissa HC).
7
65-B. 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 of which direct evidence would be admissible.
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(2) The conditions referred to in sub-section (1) in respect of a
computer output shall be the following, namely—
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;
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;
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 during that part of
the period, was not such as to affect the electronic record or the
accuracy of its contents; and
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 function of storing or processing
information for the purposes of any activities regularly carried on over
that period as mentioned in clause ( a ) of sub-section (2) was regularly
performed by computers, whether—
by a combination of computers operating over that period; or
by different computers operating in succession over that period; or
by different combinations of computers operating in succession over
that period; or
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,
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,—
identifying the electronic record containing the statement and
describing the manner in which it was produced;
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;
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
purposes 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,—
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
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Indian Evidence Act, 1872 moved by the
Informant was rejected, disposed of the revision
by the following order:-
“xxx xxx xxx
6. ……..In fact, according to the Court,
recording the objection of Mr. Sahoo,
learned ASC for the State and Ms. Biswal,
learned counsel for opposite party No.2,
the application is acceptable at the behest
of the Informant but it has to be moved by
the prosecution. The Court is of the further
view that the learned court below should
have directed the prosecution to move the
application instead of rejecting the same
on technical ground referring to Section
301 Cr.P.C. Furthermore, the Court is of
the conclusion that an objection to the
application as per Annexure-2 was
received from opposite party No.2 but
there has been no discussion thereon nor
with regard to the plea of the petitioner,
which is, hence, needs a fresh
consideration by the learned court below
by an order on merit.
(with or without human intervention) by means of any appropriate
equipment;
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;
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.
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7. Accordingly, it is ordered.
8. In the result, the revision petition
stands disposed of with a direction to
consider Annexure-1 series received from
the Informant with the objection of
opposite party No.2 at Annexure-2 by
st
learned 1 Additional Sessions Judge,
Cuttack and to dispose it of in accordance
with law at the earliest preferably within a
period of ten days from the date of receipt
of a copy of this order. As a necessary
corollary, the impugned order at
Annexure-4 in S.T. Case No. 35 of 2022 is
set aside.
xxx xxx xxx”
4. In response thereto, the learned Sessions
Judge reconsidered the matter and, by the
impugned order dated 21.11.2025, rejected the
prayer of the Petitioner-Informant, assailing which
the present Criminal Revision has been filed.
5. Learned counsel Mr. Mohanty submits
that, in rejecting the prayer of the Informant for
introducing the pen drive, the learned Trial Court
has failed to appreciate the letter and spirit of the
order of this Court remanding the matter back to
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the learned Trial Court and, during the course of
his submissions, he relied on the judgment of the
Apex Court in the case of Arjun Panditrao
Khotkar vs. Kailash Kushanrao Gorantyal and
8
Others , as well as the order of the Hon‟ble High
Court of Rajasthan in the case of Shwetabh
9
Singhal v. J.K. & Sons .
6. Considering the nature of the relief sought
for, in the light of the reliance placed on the
judgments referred to hereinabove, this Court
sought the assistance of learned counsel Mr. D.
Sarangi to act as Amicus Curiae, who graciously
agreed.
7. In opposing the stand of the Petitioner,
learned counsel for the State as well as the
learned counsel for the accused relied on the self-
same judgment in the case of Arjun Panditrao
8
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal , (2020) 7
SCC 1.
9
Shwetabh Singhal v. J.K. & Sons, 2025 SCC OnLine Raj 487.
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8
Khotkar (supra) and also the judgments in the
10
cases of Thakur Ram v. State of Bihar and
11
Sidhartha Vashisht v. State (NCT of Delhi)
as well as judgment of the High Court of Madhya
Pradesh in the case of Sunil v. the State of
12
Madhya Pradesh and the judgment of the
Bombay High Court in the case of Bhagyashree
Prashant Wasankar v. State of
13
Maharashtra , relied upon by the Madhya
Pradesh High Court in Sunil (supra).
8. Admittedly, in the case at hand, the pen
drive which is sought to be introduced now into
evidence by the Informant does not form part of
the materials collected during investigation.
However, relying on the judgment cited on behalf
of the Petitioner-the victim, it is stated that
because of perfunctory investigation, the pen
10
Thakur Ram v. State of Bihar , AIR 1966 SC 911.
11
Sidhartha Vashisht v. State (NCT of Delhi) , (2010) 6 SCC 1.
12
Sunil v. the State of Madhya Pradesh , 2024:MPHC-IND:29173.
13
Bhagyashree Prashant Wasankar v. State of Maharashtra , 2021 SCC
OnLine Bom 1064.
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drive does not form part of the materials
submitted before the learned Trial Court and that
ought not to deter this Court from directing the
same to be considered as a piece of evidence in
the interest of justice, since non-consideration
thereof prejudicially affects the cause of the
victim.
9. Per contra, learned counsel for the State
as well as the accused-Opposite Party No.2
oppose such prayer and submit that there is no
scope in an ongoing trial for introduction of
evidence at the behest of the victim. Hence, the
prayer does not merit consideration.
10. The learned Amicus Curiae, Sri Debasis
Sarangi, on an in-depth analysis of all the
judgments on record, raises a fundamental
question regarding maintainability of the revision
in view of the schematic arrangement of the Code
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of Criminal Procedure, 1973/ Bharatiya Nagarik
Suraksha Sanhita, 2023.
11. It is his further submission that, while
adjudicating the earlier application of the present
Petitioner which culminated in an order of remand
as noted hereinabove, the question of
maintainability was not addressed and, according
to him, the order being an interlocutory order, on
the ground of maintainability alone, the revision
petition is liable to be rejected.
It is his further submission that neither
the Cr.P.C. nor the BNSS has any provision by
virtue of which the prayer of the Petitioner to
introduce materials to be considered in the midst
of trial as evidence, can be entertained.
12. The rival submissions at the Bar have to
be considered in the backdrop of the judgments
cited.
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13. The judgment cited in Arjun Panditrao
8
Khotkar (supra) is the leading judgment on the
question of admissibility in terms of Sub-section
7
(4) of Section 65-B of the Indian Evidence Act,
1872 in the light of the Information Technology
Act, 2000.
13-A. The order of the Hon‟ble Rajasthan High
Court in the case of Shwetabh Singhal (supra)
is also on the aspect of the admissibility of
7
evidence under Sub-section (4) of Section 65-B
of the Indian Evidence Act, 1872 in the light of
the judgment of the Apex Court in the case of
8
Arjun Panditrao Khotkar (supra) referred to
hereinabove.
14. It is apt to note here that none of the
judgments cited by the learned counsel for the
Petitioner answers the twin questions relating to
the maintainability as well as the power of the
Court to admit into evidence material which has
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not been collected during investigation, at the
behest of informant-victim in the midst of trial.
15. So far as criminal trial is concerned, the
offence is considered to be an offence against the
State that is the reason the State is represented
by a Public Prosecutor so that he can assist the
Court to come to a just conclusion without
donning the cap of a persecutor.
16. The role ascribed to the State in a
Criminal Trial has been succinctly stated in the
judgment of the Apex Court in the case of
10
Thakur Ram (supra) .
The relevant extract of the above
judgment is culled out hereunder:-
“…..Barring a few exceptions, in criminal
matters the party who is treated as the
aggrieved party is the State which is the
custodian of the social interests of the
community as large and so it is for the
State to take all the steps necessary for
bringing the person who has acted against
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the social interests of the community to
book.”
17. In this context, the learned counsel for
the accused also relied on the judgment of the
Apex Court in the case of Shiv Kumar v. Hukam
14
Chand .
The relevant paragraphs of the said
judgment regarding the role played by a public
prosecutor and a limited role of a counsel
appearing for the victim are well outlined. For
convenience of reference, the same is extracted
hereunder;
xxx xxx
“xxx
14. It is not merely an overall supervision
which the Public Prosecutor is expected
to perform in such cases when a privately
engaged counsel is permitted to act on
his behalf. The role which a private
counsel in such a situation can play is,
perhaps, comparable with that of a junior
advocate conducting the case of his
senior in a court. The private counsel is
14
Shiv Kumar v. Hukam Chand , (1999) 7 SCC 467.
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to act on behalf of the Public Prosecutor
albeit the fact that he is engaged in the
case by a private party. If the role of the
Public Prosecutor is allowed to shrink to a
mere supervisory role the trial would
become a combat between the private
party and the accused which would
render the legislative mandate in Section
225 of the Code a dead letter.
xxx xxx
xxx”
18. In the very judgment on which much
reliance has been placed by the learned counsel
for the Petitioner, in the case of Arjun Panditrao
8
Khotkar (supra) , to fortify his submission that
the pen drive is to be admitted into evidence, the
rights of an accused has been stated in
paragraphs-52 & 53 thereof, which are quoted
hereunder:-
“52. We may hasten to add that Section
65-B does not speak of the stage at
which such certificate must be furnished
to the Court. In Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473, this Court
did observe that such certificate must
accompany the electronic record when
the same is produced in evidence. We
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may only add that this is so in cases
where such certificate could be procured
by the person seeking to rely upon an
electronic record. However, in cases
where either a defective certificate is
given, or in cases where such certificate
has been demanded and is not given by
the person concerned, the Judge
conducting the trial must summon the
person/persons referred to in Sub-section
(4) of Section 65-B of the Evidence Act,
and require that such certificate be given
by such person/persons. This, the trial
Judge ought to do when the electronic
record is produced in evidence before
him without the requisite certificate in
the circumstances aforementioned. This
is, of course, subject to discretion being
exercised in civil cases in accordance
with law, and in accordance with the
requirements of justice on the facts of
each case. When it comes to criminal
trials, it is important to keep in mind the
general principle that the accused must
be supplied all documents that the
prosecution seeks to rely upon before
commencement of the trial, under the
relevant sections of the CrPC.
53. In a recent judgment, a Division
Bench of this Court in State of
Karnataka v. M.R. Hiremath, (2019) 7
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SCC 515, after referring to Anvar P.V.
held:
“16. The same view has been
reiterated by a two-Judge Bench of this
Court in Union of India v. Ravindra V.
Desai, (2018) 16 SCC 273. The Court
emphasised that non-production of a
certificate under Section 65-B on an
earlier occasion is a curable defect. The
Court relied upon the earlier decision
in Sonu v. State of Haryana, (2017) 8
SCC 570, in which it was held:
„32. … The crucial test, as affirmed
by this Court, is whether the defect could
have been cured at the stage of marking
the document. Applying this test to the
present case, if an objection was taken to
the CDRs being marked without a
certificate, the court could have given the
prosecution an opportunity to rectify the
deficiency.‟
17. Having regard to the above
principle of law, the High Court erred in
coming to the conclusion that the failure
to produce a certificate under Sub-
section (4) of Section 65-B of the
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
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that stage that the necessity of the
production of the certificate would arise.”
(Emphasis in original)
54. It is pertinent to recollect that the
stage of admitting documentary evidence
in a criminal trial is the filing of the
charge-sheet. When a criminal court
summons the accused to stand trial,
copies of all documents which are
entered in the charge-sheet/final report
have to be given to the accused. Section
207 CrPC, which reads as follows, is
mandatory. Therefore, the electronic
evidence i.e. the computer output, has to
be furnished at the latest before the trial
begins. The reason is not far to seek; this
gives the accused a fair chance to
prepare and defend the charges levelled
against him during the trial. The general
principle in criminal proceedings
therefore, is to supply to the accused all
documents that the prosecution seeks to
rely upon before the commencement of
the trial. The requirement of such full
disclosure is an extremely valuable right
and an essential feature of the right to a
fair trial as it enables the accused to
prepare for the trial before its
commencement.”
(Emphasized)
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19. In the case at hand, a curious situation
has arisen in as much as it is not the prosecution
which is seeking to adduce additional material for
consideration, but it is the victim who says that
because of perfunctory investigation, material
which will have a direct bearing on the merits of
the matter is being excluded on the ground of
alleged technicality.
20. Though it is trite that technicality ought
not to defeat justice, at the same time, this Court
cannot lose sight of the rights of an accused
sanctified and circumscribed by the procedure as
laid down in the Cr.P.C./BNSS.
21. Learned counsel for the Petitioner has not
been able to place on record any material or
reference to any provision in the Cr.P.C./BNSS
which would enable the victim to place on record
material which does not form part of the charge-
sheet.
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22. This Court, on a perspicuous analysis of
the materials on record, is of the considered view
that there is no infirmity in the order rejecting the
prayer of the Petitioner-victim for introducing the
pen drive in the midst of trial.
23. In the light of the discussions as above,
the CRLREV, being devoid of merit, stands
dismissed. The interim order stands vacated.
Question of maintainability is left open.
24. The learned Trial Court shall proceed with
the matter with the expediency it deserves.
(V. Narasingh)
Judge
Orissa High Court, Cuttack,
th
Dated the 19 September, 2026/Ayesha
21.09.2026/Uploaded
Signature Not Verified
Digitally Signed
Signed by: AYESHA ROUT
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 21-Sep-2026 18:20:49
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