SC Begins Hearing On The Question "Is Requirement Of Certificate U/s 65-B(4) Evidence Act Mandatory for Production Of Electronic Evidence?"

A Three Judge Bench of the Supreme Court comprising Justices RF Nariman, S Ravindra Bhat and V Ramasubramanian commenced hearing on a reference on the question "Is requirement of certificate U/s 65-B(4) Evidence Act mandatory for production of electronic evidence?"

Senior Advocate Meenakshi Arora has completed the arguments. Advocate Vikas Upadhyay, for the intervenor has commenced the arguments.

The hearing will continue March 3.

A two Judge Bench of Justices Ashok Bhushan and Navin Sinha had referred the question in view of the conflict between Shafhi Mohammad vs. State of Himachal Pradesh and Anvar P.V. vs. P.K. Basheer.

A Supreme Court bench has opined that its earlier judgment which had held that the requirement of certificate under Section 65B(4) of the Evidence Act for production of Electronic Evidence is not always mandatory, needs reconsideration.

In Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal it is observed that;

"We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter"

In Shafhi Mohammad vs. State of Himachal Pradesh, the Supreme Court had observed that a party who is not in possession of device from which the electronic document is produced, cannot be required to produce certificate under Section 65B (4) of the Evidence Act. In this case, the bench comprising of Justice AK Goel and Justice UU Lalit was considering the issue whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.

In this context, the bench, referring to various judgments, observed that 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," the bench added.

But there is an earlier judgment by a three judge bench in Anvar P.V. vs. P.K. Basheer , which had observed thus:

"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 obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible".

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