Saturday, 8 April 2017

Procedure to be followed by court if there is objection as to admissibility of electronic evidence


On going through the impugned order as well as the
copy of the deposition, in particular the cross-examination of PW2
Navratan Singh, I find that certain aspects of Section 65-B of the
Indian Evidence Act ought to have been considered by the Trial
Court and even if they were considered by the Trial Court, at least,
there is no reflection of the same in the impugned order or in the
recording of the evidence of PW2, Navratan Singh. The objections
raised by the petitioners purely relate to the law points, which are
required to be appropriately dealt with by the Trial Court.
However, considering the fact that the cross-examination of PW2,
Navratan Singh is still underway, it would be appropriate to make
order of the Trial Court exhibiting the documents in the nature of
electronic or computer record at Exhibit 137 colly as subject to
objections raised by the petitioners in the light of the provisions of
Section 65-B of the Indian Evidence Act. In my opinion, such an
order should serve the ends of justice.
6. In the circumstances, Writ Petition is allowed. It is
directed that the order of the Trial Court in directing marking of
the documents in the nature of electronic or computer record as
Exhibit 137 colly shall be subject to objections of the petitioners
taken by them under Section 65-B of the Indian Evidence Act and
same shall be dealt with by the Trial Court at the time of final
hearing in accordance with law. It is made clear that exhibiting
these documents shall not come in the way of the petitioners in
putting questions to PW2, Navratan Singh in his cross-examination
touching upon the admissibility of these documents in evidence, in
view of various conditions laid down in Section 65-B of the Indian
Evidence Act.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.43 of 2015
 M/s Aum International Inc.,

V
 The Indian Hotels Company Ltd.,

CORAM :- S. B. SHUKRE, J.
Date : 15th January, 2016.
Citation: 2017 ALLMR(CRI)1071

2. Rule. Rule made returnable forthwith. Heard finally,
by consent of the learned Counsel for the parties.
3. The learned Counsel for the petitioners submits that
the learned Magistrate has committed serious illegality by not
considering the objections taken by the petitioners with regard to
admissibility of documents in the nature of electronic or computer
record. All these objections related to non-compliance with the
mandatory conditions of subsection (2) as well as subsection (4) of
Section 65-B of the Indian Evidence Act. He submits that now it is
well settled law as can be seen from the judgment of the Hon'ble
Apex Court in the case of Anvar P. V. Vs. P. K. .Basheer,
(2014)10 SCC 473 that Section 65-B conditions being mandatory
in nature, must be fulfilled by the party seeking to place reliance
upon the documents in the nature of electronic or computer
record. The learned Counsel further submits that the learned
Magistrate has completely ignored the law settled by the Hon'ble
Apex Court in respect of the documents in the nature of electronic
or computer record.
4. Shri Thali, the learned Counsel for the respondent no.1
states that when the documents were exhibited, the petitioners
did not take any objection and that even the impugned order
shows that the learned Magistrate has considered all the
objections of the petitioners.
5. On going through the impugned order as well as the
copy of the deposition, in particular the cross-examination of PW2
Navratan Singh, I find that certain aspects of Section 65-B of the
Indian Evidence Act ought to have been considered by the Trial
Court and even if they were considered by the Trial Court, at least,
there is no reflection of the same in the impugned order or in the
recording of the evidence of PW2, Navratan Singh. The objections
raised by the petitioners purely relate to the law points, which are
required to be appropriately dealt with by the Trial Court.
However, considering the fact that the cross-examination of PW2,
Navratan Singh is still underway, it would be appropriate to make
order of the Trial Court exhibiting the documents in the nature of
electronic or computer record at Exhibit 137 colly as subject to
objections raised by the petitioners in the light of the provisions of
Section 65-B of the Indian Evidence Act. In my opinion, such an
order should serve the ends of justice.
6. In the circumstances, Writ Petition is allowed. It is
directed that the order of the Trial Court in directing marking of
the documents in the nature of electronic or computer record as
Exhibit 137 colly shall be subject to objections of the petitioners
taken by them under Section 65-B of the Indian Evidence Act and
same shall be dealt with by the Trial Court at the time of final
hearing in accordance with law. It is made clear that exhibiting
these documents shall not come in the way of the petitioners in
putting questions to PW2, Navratan Singh in his cross-examination
touching upon the admissibility of these documents in evidence, in
view of various conditions laid down in Section 65-B of the Indian
Evidence Act.
7. Writ Petition is disposed of.
8. Rule is made absolute in these terms.
 S. B. SHUKRE, J.


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