Landmark Supreme Court Judgment : Certificate required under Section 65B(4) is a condition precedent to the admissibility of Electronic evidence.
The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law
declared by this Court on Section 65B of the Evidence Act. The
judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated
03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law
correctly and are therefore overruled.
(b) The clarification referred to above is that the required
certificate under Section 65B(4) is unnecessary if the original document
itself is produced. This can be done by the owner of a laptop computer,
computer tablet or even a mobile phone, by stepping into the witness
box and proving that the concerned device, on which the original
information is first stored, is owned and/or operated by him. In cases
where the “computer” happens to be a part of a “computer system” or
“computer network” and it becomes impossible to physically bring such
system or network to the Court, then the only means of providing
information contained in such electronic record can be in accordance
with Section 65B(1), together with the requisite certificate under Section
65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an
electronic record as such is used as primary evidence under Section 62
of the Evidence Act…” is thus clarified; it is to be read without the words
“under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be
revisited.
(c) The general directions issued in paragraph 62 (supra) shall
hereafter be followed by courts that deal with electronic evidence, to
ensure their preservation, and production of certificate at the
appropriate stage. These directions shall apply in all proceedings, till
rules and directions under Section 67C of the Information Technology
Act and data retention conditions are formulated for compliance by
telecom and internet service providers.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 20825-20826 OF 2017
Dated: 14th July, 2020.
Citation: (2020) 7 SCC 1
2)Whether court should rely on electronic evidence adduced without certificate as per S 65B of Evidence Act?
It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. 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. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.
Supreme Court of India
Sonu @ Amar vs State Of Haryana on 18 July, 2017
Citation:(2017)8 SCC 570
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3)Whether Court can relax requirement of production of certificate U/S 65B of Evidence Act for proving electronic evidence?
The applicability of procedural requirement under Section
65B(4) of the Evidence Act of furnishing certificate is to be
applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being
in control of the said device and not of the opposite party.
In a case where electronic evidence is produced by a party who
is not in possession of a device, applicability of Sections 63
and 65 of the Evidence Act cannot be held to be excluded. In
such case, procedure under the said Sections can certainly be
invoked. If this is not so permitted, it will be denial of
justice to the person who is in possession of authentic
evidence/witness but on account of manner of proving, such
document is kept out of consideration by the court in absence
of certificate under Section 65B(4) of the Evidence Act, which
party producing cannot possibly secure. Thus, requirement of
certificate under Section 65B(h) is not always mandatory.
(12) Accordingly, we clarify the legal position on the
subject on the admissibility of the electronic evidence,
especially by a party who is not in possession of device from
which the document is produced. Such party cannot be required
to produce certificate under Section 65B(4) of the Evidence
Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of
justice so justifies.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.)No.2302 of 2017
SHAFHI MOHAMMAD Vs THE STATE OF HIMACHAL PRADESH
Dated: January 30, 2018.
Citation: (2018)2 SCC 801
4)
Anvar P.V. V P.K. Basheer and others
Dated;September 18, 2014.
Citation; AIR2015SC180, 2014(6)ALLMR951, 2015(2)MhLJ135(SC),
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5) When adverse inference should be drawn against prosecution if it fails to produce CCTV footage?
Non- production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
65B(4) of the Evidence Act of furnishing certificate is to be
applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being
in control of the said device and not of the opposite party.
In a case where electronic evidence is produced by a party who
is not in possession of a device, applicability of Sections 63
and 65 of the Evidence Act cannot be held to be excluded. In
such case, procedure under the said Sections can certainly be
invoked. If this is not so permitted, it will be denial of
justice to the person who is in possession of authentic
evidence/witness but on account of manner of proving, such
document is kept out of consideration by the court in absence
of certificate under Section 65B(4) of the Evidence Act, which
party producing cannot possibly secure. Thus, requirement of
certificate under Section 65B(h) is not always mandatory.
(12) Accordingly, we clarify the legal position on the
subject on the admissibility of the electronic evidence,
especially by a party who is not in possession of device from
which the document is produced. Such party cannot be required
to produce certificate under Section 65B(4) of the Evidence
Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of
justice so justifies.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.)No.2302 of 2017
SHAFHI MOHAMMAD Vs THE STATE OF HIMACHAL PRADESH
Dated: January 30, 2018.
Citation: (2018)2 SCC 801
CORAM :
HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE UDAY UMESH LALITRead full judgment here: Click here
4)
Leading judgment on recording and appreciation of Electronic Evidence
An
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section
65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall 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, is inadmissible.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4226 OF 2012
Reportable
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section
65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall 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, is inadmissible.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4226 OF 2012
Reportable
Anvar P.V. V P.K. Basheer and others
Dated;September 18, 2014.
Citation; AIR2015SC180, 2014(6)ALLMR951, 2015(2)MhLJ135(SC),
(2014)10SCC473,
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5) When adverse inference should be drawn against prosecution if it fails to produce CCTV footage?
Non- production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
Supreme Court of India
Tomaso Bruno & Anr vs State Of U.P on 20 January, 2015
Bench: Anil R. Dave, Kurian Joseph, R. Banumathi
Citation;(2015)7 SCC178:AIR 2015 SC(SUPP)412
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