Section 65B Certificate under Evidence Act is Compulsory for Admission of Electronic evidence : Case Law

Certificate Under Section 65B(4) Evidence Act Is Compulsory for Admissibility of Electronic Evidence: Three Judge Bench of SC - 14 July 2020

Case Law : Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571  , decided on 14.07.2020

The Indian Supreme Court has held in the above case that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of an electronic record. The bench headed by Justice RF Nariman further held that, 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.

The bench has also clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. The court said that the judgment in Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 need not be revisited, subject to the above clarifications.

"Is requirement of certificate U/s 65-B(4) Evidence Act mandatory for production of electronic evidence?" before the three judge bench of SC

Earlier, a two-Judge Bench of Justices Ashok Bhushan and Navin Sinha had referred the question in view of the conflict between Shafhi Mohammad Vs. The State Of Himachal Pradesh SLP (Crl.)No.2302 of 2017 and Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473. It was held in Shafhi Mohammad vs. State of Himachal Pradesh that, a party who is not in possession of a device from which the electronic document is produced, cannot be required to produce a certificate under Section 65B (4) of the Evidence Act. In that case, the bench was considering the issue of whether videography of the scene of crime or scene of recovery during the investigation should be necessary to inspire confidence in the evidence collected. In Anvar P.V. vs. P.K. Basheer , it was observed that 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 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

 

Application Can Be Made To Court When Requisite Person Refuses To Issue Such Certificate

The court observed that the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for the production of such a certificate from the requisite person under Section 65B(4) in cases in which such person.

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 Anvar P.V. (supra), it was observed that such a 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. "

 Sec. 65B(4) of the Evidence Act of furnishing certificate is to be applied 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, the party asking for such a certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC.

Conclusion : Section 65B(4) stands compulsory for admission of Electronic evidence