Monday, 3 September 2018

Landmark judgments of Supreme court on electronic evidence

1)Whether court should rely on electronic evidence adduced without certificate as per S 65B of Evidence Act?


It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could  have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.
Supreme Court of India

Sonu @ Amar vs State Of Haryana on 18 July, 2017
Author: L N Rao
Citation:(2017)8 SCC 570
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2)Whether Court can relax requirement of production of certificate U/S 65B of Evidence Act for proving electronic evidence?


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.
(12) Accordingly, we clarify the legal position on the
subject on the admissibility of the electronic evidence,
especially by a party who is not in possession of device from
which the document is produced. Such party cannot be required
to produce certificate under Section 65B(4) of the Evidence
Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of
justice so justifies.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.)No.2302 of 2017

SHAFHI MOHAMMAD  Vs THE STATE OF HIMACHAL PRADESH 

Dated: January 30, 2018.
Citation: (2018)2 SCC 801

CORAM :


HON'BLE MR. JUSTICE ADARSH KUMAR GOEL


HON'BLE MR. JUSTICE UDAY UMESH LALIT
Read full judgment here: Click here 

3) 

Leading judgment on recording and appreciation of Electronic Evidence


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 65B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4226 OF 2012
Reportable

Anvar P.V. P.K. Basheer and others 

Dated;September 18, 2014.
Citation; AIR2015SC180, 2014(6)ALLMR951, 2015(2)MhLJ135(SC),  
(2014)10SCC473,

Read full judgment here:Click here

4) When adverse inference should be drawn against prosecution if it fails to produce CCTV footage?
Non- production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
Supreme Court of India
Tomaso Bruno & Anr vs State Of U.P on 20 January, 2015

Bench: Anil R. Dave, Kurian Joseph, R. Banumathi

Citation;(2015)7 SCC178:AIR 2015 SC(SUPP)412
Read full judgment here: Click here

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