G] ADMISSIBILITY OF ELECTRONIC EVIDENCE :-
120. Sections 65A and 65B of the Evidence Act, 1872 deal
with the admissibility and contents of evidence of information
contained in electronic records. The Apex Court in the case of
Anwar P. V. vs P. K. Basheer, reported in (2014) 10 SCC 473 has held
that these two sections are a complete Code in themselves on the
admissibility of evidence of information contained in electronic
records.
121. Section 65B(1) differentiates between –
i) the “original document” – the electronic record on
the device in which the original information is first
stored (qualifying it as primary evidence), and
ii) the output from such device which contains
information originating from the original document,
i.e. a copy made therefrom (being secondary
evidence) [Arjun Panditrao Khotkar vs Kailash
Kushanrao Gorantyal, (2020) 7 SCC 1].
122. The Hon’ble Apex Court has in Arjun Panditrao Khotkar
(supra), in para 73.2, expounded the law on admissibility of primary
and secondary evidence in electronic form in the following words–
“ 73.2. 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.”
[Emphasis supplied]
123. It is necessary to note that the Hon’ble Apex Court in
Anwar P. V. (supra) has clarified its position on primary evidence
holding that if an electronic record is used as primary evidence under
Section 62 of the Evidence Act, it may be admissible in evidence
without any compliance of conditions under S. 65B. Arjun Panditrao
Khotkar (supra) held this position to be good law when read without
the words, “under Section 62 of the Evidence Act”, while placing its
derivation in S.65B(1). The Hon’ble Apex Court held that the
certificate under S. 65B(4) is unnecessary if the “original document”
itself is produced, since it is being used as primary evidence of the
information contained in the electronic record. This can be done by
the owner of the device (on which the original electronic record is
first stored) by proving that it is owned and/or operated by him.
124. Commonly, the original electronic record of a CCTV
footage is stored on a memory chip/CD/DVD/hard drive or any
similar device on a computer, DVR or NVR wherein the footage is
recorded. The original electronic record stored on a memory
chip/CD/DVD/hard drive, being the place where the electronic
record is first stored, is said to be the original document, qualifying it
as primary evidence. Such information can be led as evidence by
producing the hard drive, wherein the original document is first
stored, before the Court. In order to prove the information contained
in such electronic record, the memory chip/CD/DVD/hard drive on
which the electronic record was first stored can be produced before
the Court. Similarly, in cases where the device happens to be a part
of a “computer system” or “computer network”, such system or
network or server can be produced before the Court, if it is possible.
In case where the device 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 proving
information contained therein can be, as specified above is, “in
accordance with Section 65B(1), together with the requisite
certificate under Section 65B(4).”
125. The prosecution has relied upon the CCTV footage from
camera no. 2 covering the area of the main gate of the office of
APMC Market, Chikhli. The prosecution has examined PI Gulabrao
Wagh (PW14) and Dy.S.P. Baburao Mahamuni (PW15) in order to
prove the said CCTV footage. From the evidence of Dy.S.P. Mahamuni
(PW15), it appears that the prosecution has brought on record the
CCTV footage copied in pendrive (Article-M). It is stated by Dy.S.P.
Mahamuni (PW15), that its Hash value was taken by NPC Sharad
Giri and accordingly certificate under Section 65B of the Evidence
Act (Exhibit 112) was taken. Though evidence of PI Wagh (PW14)
and Dy.S.P. Mahamuni (PW15) has been corroborated by panch
witness Subhash Bhalerao (PW2) regarding CCTV footage, it appears
that the prosecution has failed to adduce evidence of a person
occupying responsible official position in relation to the operation or
the management of the activities in relation to CCTV in the APMC
Market, Chikhli. Since the prosecution has failed to bring on record
the primary evidence in relation to CCTV footage in the form of hard
disc of the said CCTV footage wherein the footage was stored, it was
necessary for the prosecution to satisfy the ingredients of Sub-Section
(4) of Section 65B of the Evidence Act. Merely because the CCTV
footage has been exhibited by the trial Court and no objection was
raised on behalf of the accused, the CCTV footage cannot be read in
evidence. The said issue is no longer res-integra in view of the
judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar
(supra). We are, therefore, of the considered opinion that in absence
of compliance of Sub-Section (4) of Section 65B of the Evidence Act,
the CCTV footage from camera no.2 covering the area of main gate
of the office of APMC Market, Chikhli cannot be relied upon as
admissible evidence of the prosecution.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL CONFIRMATION CASE NO. 01 OF 2020
CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.
Dated: SEPTMEBER 07, 2021
JUDGMENT [Per V. M. Deshpande, J.]
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