Right of a husband to get Fair trial Vs Right of privacy of wife

1)  In the divorce proceedings, the husband filed a Compact Disc (CD) purporting to contain an audio-video

recording of the wife supposedly speaking with her lady friend, by name Sugandha, on phone and talking about the husband and his family in a manner, which the husband claims was derogatory, defamatory and constituted cruelty to him.

2) The wife opposed the CD being brought on record on the ground, firstly, that the contents of the CD were tampered with and were therefore not authentic ; and secondly, that the contents of the CD were not admissible in evidence since they were a

recording of a ‘private’ conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.

3)  On the other hand, it is the husband's contention that although privacy

has been recognised by the Supreme Court as a fundamental right, this right

is not absolute but is subject to exceptions. Relying upon other judicial

precedents, it is urged that the husband was entitled to establish cruelty on

the wife’s part and to prove his case seeking dissolution of marriage on that

ground ; and in these circumstances, the wife's right to privacy must give

way to the husband's right to bring evidence to prove his case, else the

husband would be denied the right to fair trial guaranteed under Article 21

of the Constitution. It is of course also argued on behalf of the husband, that

section 14 of the Family Courts Act specifically empowers a Family Court

to receive evidence, if in its opinion such evidence will assist the court to

deal effectively with the dispute, regardless of whether the same is otherwise

relevant or admissible under the Evidence Act.
4) While a litigating party certainly has a right to privacy, that right must

yield to the right of an opposing party to bring evidence it considers relevant

to court, to prove its case. It is a critical part of the hallowed concept of fair

trial that a litigating party gets a fair chance to bring relevant evidence

before court. It is important to appreciate that while the right to privacy is

essentially a personal right, the right to a fair trial has wider ramifications

and impacts public justice, which is a larger cause. The cause of public

justice would suffer if the opportunity of fair trial is denied by shutting-out

evidence that a litigating party may wish to lead at the very threshold.

24. Since no fundamental right under our Constitution is absolute, in the

event of conflict between two fundamental rights, as in this case, a contest

between the right to privacy and the right to fair trial, both of which arise

under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

5)  If it were to be held that evidence sought to be adduced before a Family Court should be excluded based on an objection of breach of privacy or some other cognate right, then in many a case the provisions of section 14 would be rendered nugatory and dead-letter. It must be borne in mind that Family Courts have been established to deal with what are essentially

sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which

they arise, involve issues that are private, personal and involve intimacies. It

is easily foreseeable therefore, that in most cases that come before the

Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties. If section 14 is held not to apply in its full expanse to evidence that impinges on a person's right to privacy, then section 14 may as well be effaced from the statute. And yet, falling back upon the general rule of evidence, the test of admissibility would only be

relevance ; and accordingly, even ignoring section 14, fundamental considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be  served by emasculating the salutary provisions of section 14 of

the Family Courts Act by citing breach of privacy. Looking at it

dispassionately, even assuming evidence is collected in breach of privacy, at best and at worst, it is the process of collection of evidence that would be tainted not the evidence itself.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Dated : 30th June, 2020

 CM(M) 40/2019 and CM APPL.No.1226/2019

DEEPTI KAPUR Vs  KUNAL JULKA 

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

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When court can rely on Electronic evidence tendered in the form of hard disk,CD and DVD without certificate under S 65B of Evidence Act?

Ourselves witnessing CCTV footages from the Hard Disk, CD and DVD:

114. The Hard Disk at Exhibit 1 contained in the DVR is available on the record of the Sessions Court. The witnesses PW 1 Raghuveer, PW 2, Raju, PW 3 Sitaram, PW 4 Pramod, PW 5 Kailash, PW 14 Shubham, PW 16 Rupali and PW 18 Vitthal were confronted with the relevant portion in CD-'X' and Annexure DVD CY-66/13 (Article 18A) during the course of their examination-in-chief. We asked the learned counsels appearing for the parties as to whether there is legal impediment for this Court to view the footages from the Hard Disk, DVD and CD, and their response is that there cannot be. In fact, all of them expressed that the Sessions Court should have got the entire system produced on record assembled and the witnesses should have been confronted with the footages recorded in the Hard Disk at Exhibit 1. We, therefore, called upon the Technicians from the establishment in the High Court in our Chamber. We opened the seals of the articles sealed and produced. We got it assembled and have ourselves viewed the footages contained in the Hard Disk at Exhibit 1, which was connected to the DVR, CD-marked as 'X' and DVD at Article 18A.

115. After witnessing the footages in the Hard Disk, CD and DVD, we neither find any difference nor any discontinuity or insertions in the Hard Disk at Exhibit 1. On the contrary, we find that the recordings in the Hard Disk and the DVD and CD are in the same continuity and corresponds with each other. We find that the DVD at Article 18A and CD-'X' are the true and genuine copies of the footages in camera Nos. 1, 2 and 7 in CCTV recorded in the Hard Disk at Exhibit 1. We also find that the entire electronic evidence produced on record is not only consistent with each other, but also consistent with the oral evidence of the witnesses. Probably for this reason, there was no insistence from the defence for showing the footages from the Hard Disk, which is a primary electronic evidence.

116. We do not find it necessary to consider the question as to the admissibility of secondary evidence produced by a person not in power and possession of the CCTV system. We find that the primary as well as secondary evidence of electronic record is produced, and that the secondary evidence is a true and genuine copy of relevant primary evidence available on record. In the absence of any objection or cross-examination of the witnesses, PW 1 Raghuveer, PW 2 Raju, PW 3 Sitaram, PW 4 Pramod, PW 5 Kailash, PW 14 Shubham, PW 16 Rupali and PW 18 Vitthal, on the aspect of CD-marked as 'X' and DVD at Article 18A not being the true and genuine copies of the footages contained in the Hard Disk at Exhibit 1, in our view, the provision of Section 65-B of the Evidence Act is not at all attracted so as to make the electronic evidence in the form of CD and DVD inadmissible to establish the incident and the identity of the assailants. We, therefore, hold that the electronic evidence tendered in the form of Hard Disk at Exhibit 1, CD-'X' and DVD-Article 18A is admissible in the facts and circumstances of the case without a certificate under Section 65-B of the Evidence Act. We, therefore, accept such a view taken by the Sessions Court to be legal, correct and proper.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 254, 255, 393 of 2015, 121, 180 and 181 of 2016

Decided On: 05.06.2018

 Bhupesh Tichkule Vs. The State of Maharashtra

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Whether the court should grant a divorce based on the conversation between husband and wife recorded in CD?

 The conversation between husband and wife in daily routine, in the considered opinion of this court, cannot be made basis or can be considered for deciding the petition under section 13 of the Hindu Marriage Act, inasmuch as quarrel on trivial matters between them in our Society is a routine matter. More so, recording of conversation between the husband and wife and production of a CD thereof, would not be sufficient to ascertain as to under what circumstances, the conversation was recorded, what was the atmosphere and circumstances prevailing in the family at that moment, would be relevant to take into consideration the conversations recorded in the CD to extract the truth. 

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision Nos. 650 and 658 of 2017

Decided On: 04.04.2018

Tripat Deep Singh  Vs.  Paviter Kaur

Hon'ble Judges/Coram:

Ramendra Jain, J.

Citation: AIR 2019(NOC) 221(P&H)

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Whether family court can permit production of electronic evidence without certificate as per S 65B of Evidence Act?

 The argument of the learned counsel for the petitioner is that the Family Court failed to notice and to give effect to Section 14 of the Family Courts Act (for short 'the Act') which empowers the Family Courts to dispense with the application of the rigid rules of the relevancy and admissibility of evidence incorporated in the Indian Evidence Act 1872 to the proceedings before them and further erred in refusing to receive the uncertified CD in evidence. The argument, according to us, is legally sound and merits acceptance.

10. Section 14 of the Act reads as follows:

"Application of Indian Evidence Act, 1872:- A Family court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872)."

The words employed in the Section make it abundantly clear that, any matter, information etc., placed before a Family Court may be admitted in evidence uninhibited by the rules of relevancy and admissibility prescribed by the Evidence Act, provided the Family Court is of the opinion that the matter before it is essential for the effective resolution of the dispute in the proceeding. Understood in the light of the object and scheme of the Act, Section 14 of the Act seems to convey the legislative intention that Family Court has absolute freedom to depart from adopting the sophisticated and strict rules of relevancy and admissibility applicable to the regular civil courts in the country. The freedom of partial departure from the Evidence Act helps the Family Courts prevent valuable information and materials necessary for effective adjudication of disputes from being shut out in the enquiries and trial. In effect, the rules of relevancy and admissibility in the Evidence Act ought to be read subject only to Section 14 of the Act. In the event of any inconsistency emerging between the provisions of these two Acts, Family Courts Act 1984 alone will prevail, thanks to Section 20 of the Act. In the two decisions of the High Court of Kerala, Treasa Bency Vs. Preceline George, MANU/KE/0658/2013 : (2013) (3) KLT 414) and Pankajakshan Nair Vs. Shylaja, MANU/KE/0097/2017 : (2017) (1) KLJ 739), the uniform view taken is to the effect that the technicalities of the Evidence Act should not be imported to the proceeding before the Family Courts in view of the provisions in Section 14 of the Act. We too concur with the view expressed in the said decisions.

11. In view of the overriding effect of the Section 14 of the Act on the rules of admissibility in the Evidence Act, we hold that the CD produced before the Family Court, Thalassery is admissible in evidence, despite the fact that it was not certified as mandated by Section 65-B(4) of the Act. The contention put forth by the learned counsel for the respondent that the non obstante clause in Section 65-B (1) introduced by Act No. 21 of 2000 would, however, prevail over Section 14 of the Act rendering production of certificate under Section 65-B(4) of the Evidence Act inevitable, does not merit acceptance. The words used in Section 65-B(1) sufficiently indicate that the non obstante clause does not extend outside the Evidence Act nor does it curtail the operation of any other law.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 513 of 2018

Decided On: 14.01.2019

Pramod E.K.   Vs.  Louna V.C.

Hon'ble Judges/Coram:

C.K. Abdul Rehim and T.V. Anilkumar, JJ.

Citation: AIR 2019 Kerala 85

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When husband is not entitled to produce Audio CD as additional Evidence in Divorce proceeding?

Careful perusal of the application having been filed by the husband, seeking therein permission to lead additional evidence, clearly suggests that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. No doubt, wife in his examination-in-chief or cross-examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels this Court to agree with Mr. Anuj Nag, learned counsel representing the petitioner-wife that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna. Husband by way of placing audio CD on record wants to prove misbehave of father of wife and statement given by wife at one point of time, but interestingly, no such suggestion came to be put to her in her cross-examination, rather such suggestion came to be put to RW-2 in her cross-examination i.e. mother of the wife, which in my mind could not be of any help.

8. Leaving everything aside, once pleadings adduced on record by the husband itself suggest that audio CD sought to be produced on record by way of additional evidence was very much in existence before commencement of trial or cross-examination of wife or her family member, learned Court below ought not to have allowed the application having been filed by the husband, seeking therein permission to lead additional evidence that too at the stage of arguments because it would amount to filling up of lacuna.

9. Basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

10. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Ram Rati versus Mange Ram(Dead) through legal representatives and others, MANU/SC/0260/2016 : 2016(11) Supreme Court Cases 296, wherein it has been held as under:-

"11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers to the court to make orders for the ends of justice or to prevent abuse of the process of the Court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either such motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The Power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. "No prejudice is caused to either party" is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the Court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground."

11. It is quite apparent from the aforesaid exposition of law that though it is discretionary power of Court to allow parties to adduce on record additional evidence at any stage of the trial, but such power is required to be used sparingly so that it is not abused. The Hon'ble Apex Court has specifically held that in case Court decides to invoke this provision, it should see that the trial is not unnecessarily protracted on that ground. In the judgment (supra) Hon'ble Apex Court has held that "no prejudice is caused to either party is also not a permissible ground to invoke Rule 17 and as such, there is no force in the arguments of learned counsel representing the husband that no prejudice would be caused in case order passed by the District Judge is allowed to sustain, rather it would help to ascertain the truth. This Court finds from the record that matter is repeatedly being adjourned on one pretext or the other on the request of learned counsel representing the parties. Hence, this Court having taken note of the fact that since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.

12. Consequently, in view of the discussion made hereinabove, the present petition is allowed and impugned order dated 17.07.2017, passed by the learned Court below is quashed and set-aside.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 330 of 2017

Decided On: 21.12.2018

 Honey Johar Vs. Ramnik Singh Johar

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: AIR 2019 HP 39

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Whether quarrelsome talk of wife can be proved through admission of CD in evidence?

 This naturally takes us to an inquisitive question whether the
production and admission of the CD in evidence by the mere force of
Section 14 of the Evidence Act are proof of the alleged quarrelsome
talk of the respondent. Mere admission of a document in evidence,
whether it be electronic or otherwise, will not discharge the burden of
the party proposing evidence from proving the contents also. What
Section 14 of the Act enacts is not any special rule of evidence as
certain other special statues do. A document merely marked with or
without consent of the opposite party in a proceeding before a Family
Court is no proof at all unless the contents thereof are either
admitted by the adverse party or proved through the persons who
can vouch for the truth of the facts. This is an elementary principle of
proof flawing from principles of natural justice, logic fairness and
expediency dehors the provisions of the Evidence Act. We are of the

opinion that Family Courts cannot take any exception to this binding
fundamental rule of evidence and therefore, the CD produced before
the Family Court cannot be said to be proved unless the contents are
also proved despite its admission in evidence. Section 14 of the Act
as evident from the very language of the Section itself only relaxes
observance of the rules of relevancy and admissibility of evidence
rather than dispensing with the very fundamental principles of
evidence and natural justice or proof of contents of a document.
15. The purported voice of respondent extracted in the CD in
our opinion has to be proved in the same manner as a tape recorded
conversation. The petitioner can succeed in proving the alleged
riotous dialogue in the CD only when the identity of the speaker is
also proved. Proof of the accuracy of the statement recorded is
another essential requirement in the matter of proof of a tape
recorded conservation. The court accepting the evidence must rule
out that no tampering was made while the statement was recorded.
These are only some of the guidelines in the matter of proof of
contents of the CD. Elaborate discussion as to how a tape recorded
conservation could be proved is decipherable from Ram Singh and
others V. Col.Ram Singh, (AIR 1986 SC 3), Yusufalli Esmail
Nagree (AIR 1968 SC 147) and Sunil Panchal Vs. State of

Rajasthan, (MANU/RH/0987/2016 ). Unless all the essential
conditions above are satisfied, contents of the CD produced by the
petitioner cannot be said to be proved despite its admission in
evidence by the mere force of Section 14 of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT


OP (FC).No. 513 of 2018

PRAMOD E.K. Vs LOUNA V.C.

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Whether family court can admit CD in evidence even in absence of certificate as per S 65B of Evidence Act?

The core question to be addressed in the present case is

whether the CD produced before the Family Court could be admitted

in evidence in the absence of certification under Section 65-B(4) of

the Indian Evidence Act.

9. The argument of the learned counsel for the petitioner is

that the Family Court failed to notice and to give effect to Section 14

of the Family Courts Act (for short 'the Act') which empowers the

Family Courts to dispense with the application of the rigid rules of the

relevancy and admissibility of evidence incorporated in the Indian

Evidence Act 1872 to the proceedings before them and further erred

in refusing to receive the uncertified CD in evidence. The argument,

according to us, is legally sound and merits acceptance.

10. Section 14 of the Act reads as follows:

“Application of Indian Evidence Act, 1872:- A Family court

may receive as evidence any report, statement, documents,

information or matter that may, in its opinion, assist it to deal

effectually with a dispute, whether or not the same would be

otherwise relevant or admissible under the Indian Evidence

Act, 1872 (1 of 1872).”

The words employed in the Section make it abundantly clear that, any

matter, information etc., placed before a Family Court may be

admitted in evidence uninhibited by the rules of relevancy and

admissibility prescribed by the Evidence Act, provided the Family

Court is of the opinion that the matter before it is essential for the

effective resolution of the dispute in the proceeding. Understood in

the light of the object and scheme of the Act, Section 14 of the Act

seems to convey the legislative intention that Family Court has

absolute freedom to depart from adopting the sophisticated and strict

rules of relevancy and admissibility applicable to the regular civil

courts in the country. The freedom of partial departure from the

Evidence Act helps the Family Courts prevent valuable information

and materials necessary for effective adjudication of disputes from

being shut out in the enquiries and trial. In effect, the rules of

relevancy and admissibility in the Evidence Act ought to be read

subject only to Section 14 of the Act. In the event of any

inconsistency emerging between the provisions of these two Acts,

Family Courts Act 1984 alone will prevail, thanks to Section 20 of the family courts Act.

In view of the overriding effect of the Section 14 of the Act on

the rules of admissibility in the Evidence Act, we hold that the CD

produced before the Family Court, Thalassery is admissible in

evidence, despite the fact that it was not certified as mandated by

Section 65-B(4) of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

OP (FC).No. 513 of 2018

PRAMOD E.K. Vs LOUNA V.C.

Coram:

C.K.ABDUL REHIM

&

T.V.ANILKUMAR, JJ.

Dated:14th day of January 2019

Citation: 2019 SCC OnLine Ker 165, AIR 2019 Ker 85 

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Whether husband can be permitted to produce CD and transcript in cross examination of wife for confronting her?

 This is the most necessary incident of the exercise of cross-examination. The very purpose of the cross-examination will be frustrated, if the documents with which a witness of the other side of the Plaintiff_ s witness is to be confronted is shown to or inspected by that party earlier. The Court is concerned with the determination of the truth. Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. This takes place in a cross-examination. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner. Consequently, in the cross-examination of a party any document can be produced and the witness under cross-examination can be confronted therewith. Similarly any document can be produced to that end for the witness to refresh his or her memory.

 The dispute between the parties is not ambiguous to either of them. The ambit of evidence has, therefore, to be set out. The Defendant is entitled to rely upon the recorded conversation on the CD by the fact of production of the CD in the cross-examination of the Plaintiff. If the Plaintiff admits the contents, it would be read in evidence. If the Plaintiff disputes the contents, the Defendant would have to prove, by direct or circumstantial evidence in his own examination-in-chief, the accuracy of the recorded conversation. For that proof, the Defendant may produce the original electronic record itself. The Defendant may seek to play it before the Court to have the voice of the Plaintiff, hitherto disputed, identified in Court. The Defendant may himself identify the voice and get it produced in evidence and apply for playing it on record for the Court to appreciate the identified document being the recorded conversation on the CD. The Defendant may produce any other circumstantial evidence to prove the authenticity of the CD as he would for any other documentary evidence. The Defendant would also be entitled, but as a last resort, to have the forensic evidence to identify the voice of the Plaintiff by having the voice of the Plaintiff recorded as an admitted document and compared by an expert in the forensic laboratory to verify that voice with the voice on the taped conversation on the C Ds.

29. It is argued on behalf of the Defendant that the Defendant has taken out the application well in advance for the forensic report to be obtained. The application is, of course, not premature. However, the application involves the requirement of recording of Plaintiff_ s voice and then comparing it with the already recorded voice on the C Ds much as the verification of the admitted and disputed signatures of the parties would be. However, the Plaintiff may choose to admit the contents of the CD or whatever is stated in paragraph of the Written Statement, the entire exercise sought by the Defendant would be avoided since admitted facts need not be proved. Since much would depend upon the Plaintiff s own evidence, the Plaintiff need not be taken through the exercise of having her voice recorded and then verified by the forensic expert at present. However, after the Plaintiff s cross-examination is completed and the Defendant considers production of CD as his own document and relies upon it in the affidavit of documents, the Defendant would be entitled to prove its accuracy through any of the aforesaid modes. For that purpose, the Defendant shall be entitled to prove the tape recorded conversation through the recording of the voice of the Plaintiff and having it verified by the forensic expert as prayed for by him in prayer (ii) of this Notice of Motion.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 8 of 2010 IN Suit No. 16 of 2008

Decided On: 28.01.2011

 Havovi Kersi Sethna  Vs. Kersi Gustad Sethna

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation: 2011(3) BOM CR 100

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Whether CD Evidence not accompanied by contemporaneous certificate as per S 65B of evidence Act is admissible?

 Relying upon the judgment in the case of Anwar P.V. (supra), this Court elaborated upon the mode of proving of electronic record by order dated 4-1-2016 passed in E.P. No. 24/2014 (Kamal Patel Vs Ramkishore Dogne, as hereunder:

"12. In the case at hand, the objectionable matter formed part of the speeches made in the public meetings convened by the respondent. Those speeches were recorded video-graphed by the Election Commission, presumably by using video cameras. Thereafter, the contents of the memory card of the video cameras must have been transferred to a computer and the CDs forming record of the Election Commission must have been prepared. Thus, even the so called original CDs in the record of the Election Commission, would not constitute primary electronic evidence of the speeches. Moreover, in the case at hand, the CDs supplied to the petitioner were copies of the record maintained in the Election Commission and annexures P/19 to P/25 are in fact the copies prepared from the copies supplied to the petitioner by the Election Commission. Thus, in order to ensure the source and authenticity of the electronic record, a contemporaneous certificate issued at the time of each transfer, in terms of section 65-B (4) of the Evidence Act, would be required because the Supreme Court has specifically held that 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 documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

13. In aforesaid view of the matter, no useful purpose would be served by indulging in the exercise of summoning the Returning Officer along with CDs/DVDs of annexures-P/19 to P/25 maintained by the Election Commission because even those CDs/DVDs would be inadmissible.

14. Coming to the second prayer regarding the Compact Discs sent to the Returning Officer along with complaint dated 19-11-2013, it may be noted that there is no pleading in the election petition as to who prepared the video recording of the flex hoarding displayed near State Bank of India and in what manner, using which instrument. However, by means of I.A.No.14043/2015, which would be considered in latter part of this order, the certificate on affidavit issued by one Santosh S/o Ram Narayan Agrawal is sought to be filed, stating that he had video-graphed the flex hoarding using his mobile phone. He transferred the video into his computer and prepared the Compact Disc furnished to the Returning Officer along with the complaint. However, it may be noted that aforesaid certificate is dated 21-10-2015; whereas the CD was prepared before 19-11-2013. Thus, the certificate now sought to be filed was not "obtained at the time of taking the electronic document" and is valueless for purpose of ensuring the source and authenticity of the contents of the Compact Disc. Thus, the second part of prayer can also not be allowed.

8. Reverting back to the facts of the case, we may note that the petitioner proposes to file five compact discs purportedly issued as certified copies of the record of the speeches made by respondent no.1 and maintained by the Returning Officer. In support of these compact disc, three certificates under Section 65-B of the Evidence Act have been filed. These may be found at page Nos 1, 3 and 436 of the documents proposed to be filed along with I.A.No.15554/2016.

9. Certificates at page No.1 and 3 do not bear any date. They are issued by the Proprietor of Abhishek Digital Colour Lab, Sidhi. The certificate at page no. 436 has been issued by Returning Officer of the concerned Vidhan Sabha Constituency. It is dated 16.9.2016.

10. As noted about, it has been held by this Court in the case of Kamal Patel (supra) that in order to ensure the source and authenticity of electronic record, a contemporaneously issued certificate is necessary. In the instant case, the videography was purportedly done by Abhishek Digital Colour Lab, Sidhi, by using viedo-cameras. Thus, the original electronic record was the memory card of the concerned video-camera. From the memory card, the electronic record must have been transferred to a computer and from the computer to the official compact disc maintained in the office of the Returning Officer. Thus, even the compact disc maintained in the office of Returning Officer was secondary evidence. From that compact disc, the certified copies of the compact disc must have been prepared and these certified copies have now been filed along with certificates as stated above.

11. Certificates at page Nos. 1 and 3 bear no date. They were filed in the Court on 18-11-2016. Thus, it cannot be said that they were issued contemporaneously at the time of transfer of record from memory card to the official compact disc. These subsequently procured certificates clearly constitute an attempt on the part of the petitioner to fill up the gaps in electronic evidence. The certificate issued by the returning officer only cover the second part of the transfer of electronic evidence, i.e., from official compact discs to the certified copies.

12. In aforesaid circumstances it cannot be said that the certificates filed by the petitioners by way of additional documents fulfill the requirements of section 65-B (4) of the Evidence Act. As such, the compact discs and certificates under section 65-B (4) filed therewith cannot be permitted to be taken on record. The admissibility of remaining documents in evidence shall be considered when they are tendered in evidence.

Madhya Pradesh High Court

Sharadendu Tiwari vs Ajay Arjun Singh on 17 January, 2017

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Whether memory card produced by accused during cross examination of witness can be exhibited?

 Trial court when confronted with said position was required to take the memory cards and CD and also to mark as exhibit tentatively so as to avoid hampering of progress of the trial. Hon'ble Supreme Court in me judgment rendered in the case of Bipin Shantilal Panchal v. State of Gujarat & Anr., MANU/SC/1529/2001 : 2001 (2) Supreme 65 : (AIR 2001 SC 1158, paras 12 to 15), has ruled that whenever an objection is raised during evidence taking stage regarding admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit. It shall be advantageous to quote paras 13 to 16 of the said judgment:

"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this:Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

(Emphasis supplied)

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.

(Emphasis added)

7. The trial court should have allowed to play the Laptop so as to contradict the witness with his earlier statement in order to enable him to admit or deny the same. It along with exhibit would remain tentative.

8. At the stage of cross-examination for contradicting PW (2), the defence should have been allowed to play the Laptop and even prayer for placing on record the memory cards and CD should have been granted which would remain subject to objection and a necessary note to that extent should have been recorded, as is permissible in view of the law laid down by the Hon'ble Supreme Court in Bipin Shantilal Panchal's case (MANU/SC/1529/2001 : AIR 2001 SC 1158), as referred above.

IN THE HIGH COURT OF JAMMU AND KASHMIR

561-A No. 72 of 2015

Decided On: 24.05.2016

 Sultan Mir and Ors. Vs. State of J. & K.

Hon'ble Judges/Coram: Mohammad Yaqoob Mir, J.

Citation: AIR 2017 J & K 9

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Whether accused can be denied cloned copy of hard disk and CD?

 It is clear from the above that the CBI had seized some hard disks marked Q-2, 9 and 20 from the premises of the Appellant which contained the source code of the data recovery software. Defence of the Appellant is that this source code was exclusively prepared by him and was his property. On the other hand, case of the prosecution is that the recovered CDs are in fact same or similar to the software stolen in 2005. In a case like this, at the time of trial, the attempt on the part of the prosecution would be to show that the seized material, which contains the source code, is the property of the complainant. On the other hand, the Appellant will try to demonstrate otherwise and his attempt would be to show that the source code contained in those CDs is different from the source code of the complainant and the seized material contained the source code developed by the Appellant. It is but obvious that in order to prove his defence, the copies of the seized CDs need to be supplied to the Appellant. The right to get these copies is statutorily recognised Under Section 207 of the Code, which is the hallmark of a fair trail that every document relied upon by the prosecution has to be supplied to the defence/accused at the time of supply of the chargesheet to enable such an Accused to demonstrate that no case is made out against him and also to enable him to prepare his cross-examination and defence strategy. There is no quarrel up to this point even by the prosecution. The only apprehension of the prosecution is that if the documents are supplied at this stage, the Appellant may misuse the same.

11. The aforesaid apprehension of the prosecution is based on the opinion of Government Examiner (Expert) who has opined that if the cloned copy of the hard disk was required, then the same could be prepared by the laboratory on supply of new hard disk of 500 GB but such cloned copy could not be write protected. Cambridge Dictionary defines "write protect" in the following manner:

to protect the data on a computer disk so that it cannot be changed or removed by a user.

Likewise, Collins Dictionary defines the term "write protected" as under:

(of a computer disk) having been protected from accidental writing or erasure

In view of this opinion of the Expert, it needs to be ensured that the Appellant, when given the cloned copy of the hard disk, is not able to erase or change or remove the same. If that can be achieved by putting some safeguards, it would be the ideal situation inasmuch as provisions of Section 207 of the Code which ensure fair trial by giving due opportunity to the Accused to defend himself shall be fulfilled and the apprehension of the prosecution would also be taken care of.

12. We find that CBI, under similar circumstances in the case of Rupesh Kumar, accepted the order of the trial court whereby directions were given to the CBI to supply the hard disk. In the said case, the trial court found that there was no answer from the CBI whether the software in question was unique and there was no other software in the market for the recovery of lost data from the logical cracked hard disk. Number of softwares are available in the market which negated the arguments of CBI that by supplying the mirror image of the documents, the complainant will lose its money and it will be in violation of the Copyright Act, 1957. In that case, the Court took undertaking from the Appellant that he would not misuse the copy of cloned CD. We, thus, are of the opinion that in order to comply with the provision of Section 207 of the Code, the hard disks marked Q-2, 9 and 20 be supplied to the Appellant subject to the following conditions:

(a) Before supplying the said CDs, the contents thereof shall be recorded in the Court, in the presence of complainant as well as the Appellant and both of them shall attest the veracity thereof by putting their signatures so that there is no dispute about these contents later thereby removing the possibility of tempering thereof by the Appellant.

(b) The Appellant shall not make use of the source code contained in the said CDs or misuse the same in any manner and give an affidavit of undertaking to this effect in the trial court.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 102 of 2017

Decided On: 08.02.2017

 Tarun Tyagi

Vs.

Central Bureau of Investigation

Hon'ble Judges/Coram:

A.K. Sikri and R.K. Agrawal, JJ.

Citation: AIR 2017 SC 1136

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Whether it is necessary to seal required conversation of CD in civil case?

Documentary evidence requirement of sealing the required conversation of CD is of essense in cirminal case. Such Procedure not required to be followed in civil trial.

Bombay High Court

Mrs.Havovi Kersi Sethna vs Mr.Kersi Gustad Sethna on 28 January, 2011

Bench: R. S. Dalvi

Citation: 2011(3) Bom CR 100

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