Saturday, 27 July 2019

Supreme Court referred issue of applicability of S 65B of Evidence Act to larger bench

 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 the

absence of certificate under Section 65B(4) of the
Evidence Act, which party producing cannot
possibly secure. Thus, requirement of certificate
under Section 65B(
4) is not always mandatory.”
3. We are of the considered opinion that in view of Anvar
P.V. (supra), the pronouncement of this Court in Shafhi
Mohammad (supra) 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. 

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 2082520826
OF 2017

ARJUN PANDITRAO KHOTKAR .Vs  KAILASH KUSHANRAO GORANTYAL

WITH
CIVIL APPEAL NO(s). 2407 OF 2018
Dated:JULY 26, 2019.


O R D E R
In Anvar P.V. vs. P.K. Basheer and others, (2014) 10
SCC 473, a three Judges Bench of this Court held:
“16. It is further clarified that the person need only
to state in the certificate that the same is to the best
of his knowledge and belief. Most importantly, such
a certificate must accompany the electronic record
like computer printout, compact disc (CD), video
compact disc (VCD), pen drive, etc., pertaining to

which a statement is sought to be given in evidence,
when the same is produced in evidence. All these
safeguards are taken to ensure the source and
authenticity, which are the two hallmarks
pertaining to electronic record sought to be used as
evidence. Electronic records being more susceptible
to tampering, alteration, transposition, excision, etc.
without such safeguards, the whole trial based on
proof of electronic records can lead to travesty of
justice.
xxxxx
20. Proof of electronic record is a special provision
introduced by the IT Act amending various
provisions under the Evidence Act. The very caption
of Section 65A
of the Evidence Act, read with
Sections 59 and 65B
is sufficient to hold that the
special provisions on evidence relating to electronic
record shall be governed by the procedure
prescribed under Section 65B
of the Evidence Act.
That is a complete code in itself. Being a special law,
the general law under Sections 63 and 65 has to
yield.
xxxxx
22. …. 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.”
2. In Shafhi Mohammad vs. State of Himachal
Pradesh, (2018) 2 SCC 801, a two Judges Bench decision, it
has been held:
“20. An apprehension was expressed on the
question of applicability of conditions under Section65B(4)
 of the Evidence Act to the effect that if a
statement was given in evidence, a certificate was
required in terms of the said provision from a
person occupying a responsible position in relation
to operation of the relevant device or the
management of relevant activities. It was submitted
that if the electronic evidence was relevant and
produced by a person who was not in custody of the
device from which the electronic document was
generated, requirement of such certificate could not
be mandatory. It was submitted that Section 65B
of
the Evidence Act was a procedural provision to
prove relevant admissible evidence and was
intended to supplement the law on the point by
declaring that any information in an electronic
record, covered by the said provision, was to be
deemed to be a document and admissible in any
proceedings without further proof of the original.
This provision could not be read in derogation of the
existing law on admissibility of electronic evidence.
xxxxx
24. We may, however, also refer to the judgment of
this Court in Anvar P.V. v. P.K. Basheer, delivered
by a threeJudge
Bench. In the said judgment in
para 24 it was observed that electronic evidence by
way of primary evidence was covered by Section 62
of the Evidence Act to which procedure of Section
65B
of the Evidence Act was not admissible.
However, for the secondary evidence, procedure of
Section 65B
of the Evidence Act was required to be
followed and a contrary view taken in Navjot
Sandhu that secondary evidence of electronic record
could be covered under Sections 63 and 65 of the
Evidence Act, was not correct. There are, however,
observations in para 14 to the effect that electronic
record can be proved only as per Section 65B
of the
Evidence Act.
25. Though in view of the threeJudge
Bench
judgments in Tomaso Bruno and Ram Singh, it can

be safely held that electronic evidence is admissible
and provisions under Sections 65A
and 65B
of the
Evidence Act are by way of a clarification and are
procedural provisions. If the electronic evidence is
authentic and relevant the same can certainly be
admitted subject to the Court being satisfied about
its authenticity and procedure for its admissibility
may depend on fact situation such as whether the
person producing such evidence is in a position to
furnish certificate under Section 65B(
4).
26. Sections 65A
and 65B
of the Evidence Act,
1872 cannot be held to be a complete code on the
subject. In Anvar P.V., this Court in para 24
clarified that primary evidence of electronic record
was not covered under Sections 65A
and 65B
of
the Evidence Act. Primary evidence is the document
produced before the Court and the expression
“document” is defined in Section 3 of the Evidence
Act to mean any matter expressed or described
upon any substance by means of letters, figures or
marks, or by more than one of those means,
intended to be used, or which may be used, for the
purpose of recording that matter.
xxxxx
29. 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 the

absence of certificate under Section 65B(4) of the
Evidence Act, which party producing cannot
possibly secure. Thus, requirement of certificate
under Section 65B(
4) is not always mandatory.”
3. We are of the considered opinion that in view of Anvar
P.V. (supra), the pronouncement of this Court in Shafhi
Mohammad (supra) 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.
4. Let the records be laid by the Registry before Hon’ble
the Chief Justice of India for appropriate directions.
…………...................J.
[ASHOK BHUSHAN]
…………...................J.
[NAVIN SINHA]
NEW DELHI
JULY 26, 2019.

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