When A Person Refuses To Issue Certificate Under Section 65B(4) Of Evidence Act, Court Must Order Its Production :SC [Read Judgment]

The Supreme Court has observed that application can be made to the trial court to direct a person to produce the certificate under Section 65B(4) of Evidence Act on the refusal of such person to produce the same otherwise.

"In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate (paragraph 45)", observed the bench.

The bench added that "where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons(paragraph 50)".

The bench comprising of Justices RF Nariman, S. Ravindra Bhat and V. Ramasubramaniam observed that a Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time.

The court observed thus in the case Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal while holding that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record.

The court was answering reference on the question "Is requirement of certificate U/s 65-B(4) Evidence Act mandatory for production of electronic evidence?"  A two judge bench 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.

"In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate."

In facts of the case, the court observed that, since the concerned party had done everything possible to obtain the necessary certificate, which was to be given by a third-party over whom the party had no control, he must be relieved of the mandatory obligation contained in the said sub-section. 

The Court also noted that Section 65B does not speak of the stage at which such certificate must be furnished to the Court and that in In Anvar P.V. (supra), it was held that such certificate must accompany the electronic record when the same is produced in evidence. In this regard, the Court clarified thus:

"We 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 concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) 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. "

Taking note of the rights of the accused in a Criminal Trial, the bench observed

"In terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 of the CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case - discretion to be exercised by the Court in accordance with law. "

The court has further held that required certificate under Section 65B(4) is unnecessary if the original document itself is produced. In this regard, the bench observed thus:

"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 81 stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited."

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