Supreme Court: Last seen theory based on CCTV footage- Prosecution failed to produce Certificate under S 65-B(4) in its support-CCTV Footage is not admissible in evidence

 In this case, learned Counsel Mr. Shri Singh contends that even though there was no objection when PW-1 marked the exhibits; question was put to PW-38 Vyanket Bhanudas Patil about the need for Section 65-B certificate and its absence in the case of CCTV footage particularly when Section 65-B certificate was furnished for CDR report by the police. Relevant part of the deposition of PW-38 reads as under:

It is correct to say that while calling the CDR reports, I called the certificates Under Section 65-B of Evidence Act. It is correct to say that I was aware that while collecting the electronic evidence, the certificate is required. It is correct to say that I have not collected the certificate for CCTV footage. It is correct to say that I have not taken any authority letter from railway or said company to show that Chandramani Pandey has authority to handle the CCTV server. It is correct to say that the papers which were received from the Kanjur Marg police station, no such certificate was received. {Para 41}

42. The deposition of PW-38, when this question was put, was recorded on 18.06.2015 when the judgment in Anvar P.V. (supra) was holding the field. The prosecution ought to have taken a cue and attempted to remedy the situation. They have not done so.

43. We are dealing with a criminal case where the Accused is being tried for the offences which involve capital punishment. A court of law in this scenario cannot be technical about the manner of objections that are raised. Even though objection has not been raised specifically when the CCTV footage was exhibited by PW- 1, when PW-38 was in the witness box a specific question was put to him and subsequent to evidence, he deposed that he was aware of the necessity of furnishing 65-B certificate while collecting electronic evidence. On the facts of the present case, we are inclined to treat it as an objection taken at the earliest point in time. Thus, when the prosecution was aware of the need for the 65-B(4) certificate and they themselves collected it for the CDRs there was no reason as to why they did not collect the same for the CCTV footage.

51. In view of the above, we are not able to place any reliance on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the Appellant and the deceased EA were last seen together based on the CCTV footage. We eschew the same from consideration.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 879 of 2019

Decided On: 28.01.2025

Chandrabhan Sudam Sanap Vs. The State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: MANU/SC/0112/2025.

Read full Judgment here: Click here. 

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Supreme Court: Under which circumstances the CCTV footage will not tantamount to "last seen together evidence"?

According to the learned Counsel, the CCTV footage will not tantamount to "last seen together evidence" as identification of the Appellant and the deceased in the same footage has not been proved. Learned Counsel submits that no witness identified both the deceased and the Appellant in the CCTV footage and the two witnesses to whom the CCTV footage was shown Singavarapa Jonathan Surendra Prasad PW-26 (who identified his daughter) and PW-27 who identified the Appellant have not established the fact that the identifications were in the same footage. PW-26 identified only his daughter coming out with her bag and with an unknown person on platform No. 4 of LTT Station and PW-27 saw the footage and identified the Appellant, in one footage with the cold drink bottle and in another with the trolley bag but did not mention presence of any girl, contends the learned Counsel. Learned Counsel contends that PW-27's identification did not inspire confidence as it was as late as on 26.03.2014; that the police brought him into the picture and nothing was there to establish that PW-27 knew the Appellant as a person who roams in the area. Learned Counsel further contends that PW-38 Vyanket Bhanudas Patil admitted that he did not collect the address proof of PW-27. According to the learned Counsel, it is unclear as to how the police knew that the persons PW-18 and PW-19 were speaking to the same person who was seen in the footage.

{Para 33}

34. We find that the infirmities referred to by the defence namely, about the life span of the CCTV footage in DVR-II being 12 days; the absence of identification of both the Appellant and deceased in the same footage by the witnesses; the absence of explanation as to how the Police knew that the person PW-18 and 19 were speaking to was the same person in the footage and other infirmities raised have not been adequately answered by the prosecution in its evidence. Learned Additional Solicitor General Mr. Raja Thakare painstakingly took us through the available evidence and objectively placed the matter before us. However, from the material available on record, these lingering doubts in our mind have not been adequately addressed.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 879 of 2019

Decided On: 28.01.2025

Chandrabhan Sudam Sanap Vs. The State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: MANU/SC/0112/2025.

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Madras high court directs MEITY to expeditiously notify experts as per S 79A of Information technology Act for authenticating electronic evidence

 Section 63 of BSA, 2023 deals with the admissibility of electronic records. Sub-section (4) of the said provision is as follows :

“(4)In any proceeding where it is desired to give a

statement in evidence by virtue of this section, a certificate doing

any of the following things shall be submitted along with the

electronic record at each instance where it is being submitted for

admission, namely:—

(a) .....

(b) ...

 (c)....

and purporting to be signed by a person in charge of the

computer or communication device or the management of the

relevant activities (whichever is appropriate) and an expert shall

be evidence of any matter stated in the certificate; and for the

purposes of this sub-section it shall be sufficient for a matter to be

stated to the best of the knowledge and belief of the person stating it

in the certificate specified in the Schedule.”

The effect of the above provision is that filing of the certificate is mandatory along with the electronic record. The certificate is to be signed by the person in charge of the computer system and an expert. The sub-section itself refers to a schedule annexed to the Act which is in two parts, Part A and Part B.Part A is to be filled by the party and Part B is to be filled by the expert. Section 39 of the BSA, 2023 deals with opinions of experts. Section 39(2) deals with experts in relation to electronic evidence. Section 39(2) is as follows :

“(2) When in a proceeding, the court has to form an opinion on

any matter relating to any information transmitted or stored in any

computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000, is a relevant fact.

Explanation.—For the purposes of this sub-section, an

Examiner of Electronic Evidence shall be an expert .”

The above provision takes us to Section 79A of the Information Technology Act, 2000. It reads as follows :

“79A.Central Government to notify Examiner of Electronic Evidence.–The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Explanation.–For the purposes of this section, -electronic form evidence? means any information of probative value that is either

stored or transmitted in electronic form and includes computer

evidence, digital audio, digital video, cell phones, digital fax

machines.”

In the light of the above three provisions, namely, Section 63 and Section 39 of BSA, 2023 and Section 79A of the Information Technology Act, 2000, one can conclude that a person desirous of relying on any electronic record as a document in evidence must submit a certificate at the time of filing the electronic record. The certificate must be in two parts, Part A and Part B. Part B must be filled up by the expert notified under Section 79A of the Information Technology Act, 2000.

6.It is admitted by the Central Government that only a handful of entities have been notified till date as experts under Section 79A of the Act. It is surprising to note that no expert has been notified in the State of Tamil Nadu. It is beyond dispute that Tamil Nadu has good I.T infrastructure and skilled manpower. Since BSA has already come into force, very soon there will be need for certificates under Section 63(4) of BSA for securing admission of electronic records. If experts are not available in Tamil Nadu, that would result in denial of the right of access to justice which is a fundamental right. I,therefore, direct the second respondent to expeditiously notify sufficient number of persons/bodies/entities as experts in the State of Tamil Nadu.The number to be so notified will have be commensurate with the possible demand. It would be advisable to have such experts in each district in Tamil Nadu. This exercise of assessment and notification shall be carried out within a period of three months from the date of receipt of copy of this order. Since the position as on date is that meeting the statutory requirement is not possible of compliance, the learned amicus wanted me to read down the Section so that any person who is specially skilled in computer science can be recognised as an expert for the purpose of filling up Part B of the certificate. I do not want to travel that far as that would amount to re-writing Section 79A of the I.T Act. But such an occasion may arise if the notification directed to be issued under Section 79A of the I.T Act, 2000 is not issued by the Central

Government.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

CRP(MD)No.2362 of 2024

R..... ... Petitioner/Petitioner/Respondent

vs.

1.B..... ...Respondent/Respondent/Petitioner

2.The Secretary to Government,

 Ministry of Electronics and

Information Technology

(MEITY), Government of India,

 New Delhi. ... 2nd respondent

CORAM

 MR.JUSTICE G.R.SWAMINATHAN

Pronounced on : 30.10.2024.

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Landmark Supreme Court Judgment : Certificate required under Section 65B(4) is a condition precedent to the admissibility of Electronic evidence

The reference is thus answered by stating that:

(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law

declared by this Court on Section 65B of the Evidence Act. The

judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated

03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law

correctly and are therefore overruled.

(b) The clarification referred to above is that the required

certificate under Section 65B(4) is unnecessary if the original document

itself is produced. This can be done by the owner of a laptop computer,

computer tablet or even a mobile phone, by stepping into the witness

box and proving that the concerned device, on which the original

information is first stored, is owned and/or operated by him. In cases

where the “computer” happens to be a part of a “computer system” or

“computer network” and it becomes impossible to physically bring such

system or network to the Court, then the only means of providing

information contained in such electronic record can be in accordance

with Section 65B(1), together with the requisite certificate under Section

65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an

electronic record as such is used as primary evidence under Section 62

of the Evidence Act…” is thus clarified; it is to be read without the words

“under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be

revisited.

(c) The general directions issued in paragraph 62 (supra) shall

hereafter be followed by courts that deal with electronic evidence, to

ensure their preservation, and production of certificate at the

appropriate stage. These directions shall apply in all proceedings, till

rules and directions under Section 67C of the Information Technology

Act and data retention conditions are formulated for compliance by

telecom and internet service providers.

(d) Appropriate rules and directions should be framed in exercise

of the Information Technology Act, by exercising powers such as in

Section 67C, and also framing suitable rules for the retention of data

involved in trial of offences, their segregation, rules of chain of custody,

stamping and record maintenance, for the entire duration of trials and

appeals, and also in regard to preservation of the meta data to avoid

corruption. Likewise, appropriate rules for preservation, retrieval and

production of electronic record, should be framed as indicated earlier,

after considering the report of the Committee constituted by the Chief

Justice’s Conference in April, 2016.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 20825-20826 OF 2017

ARJUN PANDITRAO KHOTKAR Vs  KAILASH KUSHANRAO GORANTYAL 

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Delhi HC: The court should not insist for production of original documents if documents are undisputed

The filing of original documents is a requirement under law for a particular reason i.e., the originals constitute primary evidence and copies constitute secondary evidence. In most commercial transactions, the documents are not even disputed. The requirement of filing original documents ought to be insisted upon only when the parties actually dispute the documents which are on record. It should not be easy for any party to dispute the documents which actually relate to it and bear proper signatures. Insistence of filing of original documents when documents are not disputed causes enormous delay in adjudication of commercial disputes. The Court ought to bear in mind that original documents are required when allegations as to their genuinity or existence are raised and not in a technical manner in all situations.

12. In most civil disputes, documents exchanged between the parties, documents bearing signatures, correspondence exchanged between the parties, etc. are not disputed. It is the effect and interpretation thereof which is usually a matter of dispute. In such cases, the insistence of production of original documents and going through the entire journey of admission/denial etc., leads to unnecessary waste of judicial time, as also a lag in the dispensation of justice. Apart from these documents, there are other documents, for example publicly available documents etc., which should be accepted, unless and until there is a reason to doubt their authenticity. The insistence of filing original documents can result in injustice as is evident from the present case.

IN THE HIGH COURT OF DELHI

RFA 297/2015

Decided On: 31.01.2018

ICICI Bank Limited  Vs.  Kamini Sharma and Ors.

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

Citation: MANU/DE/0438/2018

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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 it is necessary to provide digital copy of CCTV Footage to accused as per S 207 of CRPC?

 In other words, any electronic record, which is printed, stored, recorded or copies made on to an optical or magnetic media and produced by a computer will be deemed to be a document only if the conditions set out in Section 65B(1) of the Evidence Act are satisfied and it was held so in Anwar P.V. v P.K. Basheer MANU/SC/0834/2014 : (2014)10 SCC 473. However, in Shafhi Mohammed v. State of H.P. MANU/SC/0331/2018 : (2018) 5 SCC 311 the Apex Court revisited the principles laid down in Anwar P.V. (supra) and it was held that the applicability of procedural requirement under Section 65B(4) of the Evidence Act for furnishing certificate is not always mandatory. Later, in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (Civil Appeal No(s). 2407 of 2018 and connected cases) by interim order dated 26.7.2019, their Lordships of the Apex Court had ordered that in view of Anwar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration and the matter was referred to be considered by a larger Bench. However, in the instant case, the said question is merely academic as Sri. Suman Chakravarthy, the learned Senior Public Prosecutor, submitted that the requisite certification under Section 65B of the Indian Evidence Act has been obtained for the electronic evidence. In that view of the matter, there is no embargo in providing to the accused a copy of the CCTV Footage, which is relied on by the prosecution in the subject case.

38. In the case on hand, I have no doubt in my mind that the investigating agency has committed a grave error by producing the CCTV footage as a material object and also in refusing to give a copy of the same to the accused. The accused is entitled to a digital copy of the CCTV footage, which is relied on by the prosecution to prove the charge. That being the case, the order passed by the learned Magistrate will stand set aside.

39. This petition will stand allowed. The digital copies of the electronic record relied on by the prosecution and sought for by the petitioner shall be issued to him by imposing appropriate safeguards that the jurisdictional court may deem fit and proper.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 4148 of 2019(G)

Decided On: 30.09.2019

 Jisal Rasak Vs.  The State of Kerala

Hon'ble Judges/Coram:
Raja Vijayaraghavan V., J.

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Landmark judgments of Supreme court on electronic evidence

Landmark Supreme Court Judgment : Certificate required under Section 65B(4) is a condition precedent to the admissibility of Electronic evidence.

The reference is thus answered by stating that:

(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law

declared by this Court on Section 65B of the Evidence Act. The

judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated

03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law

correctly and are therefore overruled.

(b) The clarification referred to above is that the required

certificate under Section 65B(4) is unnecessary if the original document

itself is produced. This can be done by the owner of a laptop computer,

computer tablet or even a mobile phone, by stepping into the witness

box and proving that the concerned device, on which the original

information is first stored, is owned and/or operated by him. In cases

where the “computer” happens to be a part of a “computer system” or

“computer network” and it becomes impossible to physically bring such

system or network to the Court, then the only means of providing

information contained in such electronic record can be in accordance

with Section 65B(1), together with the requisite certificate under Section

65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an

electronic record as such is used as primary evidence under Section 62

of the Evidence Act…” is thus clarified; it is to be read without the words

“under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be

revisited.

(c) The general directions issued in paragraph 62 (supra) shall

hereafter be followed by courts that deal with electronic evidence, to

ensure their preservation, and production of certificate at the

appropriate stage. These directions shall apply in all proceedings, till

rules and directions under Section 67C of the Information Technology

Act and data retention conditions are formulated for compliance by

telecom and internet service providers.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 20825-20826 OF 2017

ARJUN PANDITRAO KHOTKAR Vs  KAILASH KUSHANRAO GORANTYAL 

Dated: 14th July, 2020.

Citation: (2020) 7 SCC 1

https://www.lawweb.in/2020/07/supreme-court-latest-judgment.html

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

 The interpretation of Section 65B(4) by this Court by a judgment dated 04.08.2005 in Navjot Sandhu held the field till it was overruled on 18.09.2014 in Anvar's case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of Section 65B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records.

A large number of trials have been held during the period between 04.08.2005 and 18.09.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anvar's case has to be retrospective in operation unless the judicial tool of 'prospective overruling' is applied. However, retrospective application of the judgment is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the Accused at the appellate stage. Attempts will be made to reopen cases which have become final. { Para 32}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1418, 1416 of 2013, 1653 and 1652 of 2014

Decided On: 18.07.2017

 Sonu Vs.  State of Haryana

Hon'ble Judges/Coram:
S.A. Bobde and L. Nageswara Rao, JJ.

Citation:(2017)8 SCC 570

                         

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Whether call details can be held admissible in evidence without certificate as per S 65B of Evidence Act?

Qua the admissibility of the call details, it is a matter of
record that though PWs 24, 25, 26 and 27 have endeavoured to
prove on the basis of the printed copy of the computer generated call
details kept in usual ordinary course of business and stored in a
hard disc of the company server, to co-relate the calls made from
and to the cell phones involved including those, amongst others
recovered from the accused persons, the prosecution has failed to
adduce a certificate relatable thereto as required under Section
65B(4) of the Act. Though the High Court, in its impugned
judgment, while dwelling on this aspect, has dismissed the plea of
inadmissibility of such call details by observing that all the
stipulations contained under Section 65 of the Act had been
complied with, in the teeth of the decision of this Court in Anvar
P.V. (supra) ordaining an inflexible adherence to the enjoinments of
Sections 65B(2) and (4) of the Act, we are unable to sustain this
finding. As apparently the prosecution has relied upon the
secondary evidence in the form of printed copy of the call details,
even assuming that the mandate of Section 65B(2) had been
complied with, in absence of a certificate under Section 65B(4), the
same has to be held inadmissible in evidence.
This Court in Anvar P.V. (supra) has held in no
uncertain terms that the evidence relating to electronic record being
a special provision, the general law on secondary evidence under
Section 63 read with Section 65 of the Act would have to yield
thereto. It has been propounded that any electric record in the form
of secondary evidence cannot be admitted in evidence unless the
requirements of Section 65B are satisfied. This conclusion of ours is
inevitable in view of the exposition of law pertaining to Sections 65A
and 65B of the Act as above.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 2539 OF 2014

HARPAL SINGH @ CHHOTA  V  STATE OF PUNJAB

Bench: A.K. Sikri, Amitava Roy
Dated:NOVEMBER 21, 2016.
Citation:(2017) 1 SCC 734, 2017 CRLJ 551 SC

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Whether it is necessary to prove certificate as per S 65B of evidence Act to prove Tape recorded evidence?

The Supreme Court in Anvar P.V.(supra) has
settled the law with respect to the admissibility of evidence
under Section 65B of the Indian Evidence Act. The Court held
that an electronic record by way of secondary evidence is
only admissible in a court of law if the requirements under
Section 65B are complied with. A certificate in terms of
Section 65B of the Evidence Act is mandatory for secondary
evidence pertaining to an electronic record such as a CD or a
chip to be admissible. The factual matrix of that case
involved CDs being used for announcements and songs. If
these CDs had been adduced as primary evidence, the same
would not have been hit by the requirements of Section 65B
of the Evidence Act. The announcements and songs were
recorded using other instruments and were then fed into a
computer, from which CDs were made, which can be
classified as secondary evidence. The Supreme Court held
that CDs could not be admitted as evidence without due
certification and compliance with the requirements under
Section 65B of the Evidence Act. The Court clarified and
made it amply clear that Section 65B of the Evidence Act
seeks to bring within its ambit only secondary evidence on
electronic record and the same does not bar the admissibility
of electronic records being used as primary evidence.
It is thus clear that provision of Section 65B of the
Act itself negates the requirement of the production of the
primary evidence in the form of the original media on which
data or information was stored and makes secondary evidence
admissible in the form of computer output, subject to the
production of a certificate. The purpose behind Section 65B
of the Act is to obviate the difficulty attached to the
production of primary evidence, which can lead to a denial of
justice in many cases. This provision through its
requirements brings secondary evidence to the level of
primary evidence in order to make it admissible in
accordance with law. Evidently, Section 65B is attracted in
cases where an electronic record is printed, copied etc. and
is produced by a computer(computer output), thus making it
a provision dealing with secondary evidence. It is, therefore,
significant to note that the difference between primary
evidence and secondary evidence is of utmost importance. A
tape recorded cassette, seen in the light of this analysis of
law, is clearly a primary and direct evidence of what has been
said and recorded.
The Supreme Court in R.M. Malkani(supra), in
such circumstances held that tape recorded conversation is
admissible provided; first the conversation is relevant to the
matters in issue; secondly, there is identification of the
voice; and, thirdly, the accuracy of the tape recorded
conversation is proved by eliminating the possibility of erasing
the tape record. A contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible
under Section 8 of the Evidence Act. It is res-gestae. It is
also comparable to a photograph of a relevant incident. The
tape recorded conversation is therefore a relevant fact and is
admissible under Section 7 of the Evidence Act. The
importance of Section 65B of the Evidence Act is that it does
away with the requirement to produce the original computer
or the original media on which data or information was stored
and allows the secondary evidence in the form of computer
output to be produced and admitted in evidence, subject to
the condition that when evidence of computer output is
produced and tendered, certificate of a person occupying a
responsible official position in relation to operation of the
relevant device or management of the relevant activities as
prescribed by Section 65B of the Evidence Act is produced.
Since in the present case voice of accused Sunil
Panchal recorded at the time when ransom call was made by
him has matched with his voice recorded in another cassette
and it has been proved by FSL Report(Exhibit P-72) that voice
recorded in two cassettes were of the same person, it is an
important link connecting the accused with the crime.
All afore-discussed individual circumstances, when
joined together, thus form a complete chain which lead to an
inescapable conclusion that it were the accused-appellants
and none else, who abducted Abhishek @ Aakash, demanded
ransom and eventually murdered him. We, therefore, do not
find any error in impugned judgment and order passed by the
trial court and uphold the conviction and sentence awarded
to them by the trial court.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.
JUDGMENT
D.B. CRIMINIAL APPEAL NO. 151/2007
SUNIL PANCHAL VS. THE STATE OF RAJASTHAN.

DATE OF JUDGMENT : 03.06.2016
MR. JUSTICE MOHAMMAD RAFIQ
MR. JUSTICE VIJAY KUMAR VYAS
Citation: 2016 CRLJ 4238 Raj

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Under which circumstances malfunctioning of computer will not affect admissibility and relevancy of electronic evidence?

 In DPP v. Me. Kewon, (1997) 1 Criminal Appeal 155, Lord Hoffman, applying Section 69 of the Police and Criminal Evidence Act, 1984 in relation to the inaccuracy in the time display in the computer print out, held:-

I shall for the moment assume that the inaccuracy in the time display meant that "the computer not operating properly". The question is therefore whether that was "such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document. In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule. The first thing to notice is that Section 69 is concerned solely with the roper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for Chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But Section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, Section 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer. The purpose of Section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that Section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. The language of Section 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence.

 In effect, substantially, Section 65B of the Indian Evidence Act and Section 69 of the Act in England have same effect. 293. Thus, in the context of Section 65B(2)(c) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. However, this compliance would be on the principle laid down in Shepherd (supra) and as applied in Ana Marcolino (supra) and Me. Kewon (supra). Thus in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. Such challenge has to be established by the challenger. Generic and theoretical doubts by way of smoke screen have to be ignored.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Criminal Appeal No. 199/2008

Decided On: 16.06.2014

 Pankaj Kumar Vs. State of H.P.

Hon'ble Judges/Coram:Rajiv Sharma and Sureshwar Thakur, JJ.

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Procedure to be followed by Magistrate when CCTV footage and video recordings is produced by police at the time of filing of chargesheet

During the hearing of the case, we noticed that the trial Court had not played the DVR (MO-2) and seen the CCTV footages in the presence of the accused. In this regard we propose to dispel misgivings, if any, in the mind of trial Judges about their power to view such evidences. There will be instances where, by the time the case comes up for trial in one court, the electronic record would have had a natural death for want of proper storage facilities in the Court property room. To obviate these difficulties, we direct that, on a petition filed by the prosecution, the Judicial Magistrate, who receives the electronic record, may himself view it and take a back up, without disturbing the integrity of the source, in a CD or Pendrive or any other gadget, by drawing proceedings. The back up can be kept in safe custody by wrapping it in anti static cover and should be sent to the Sessions Court at the time of committal. The present generation of Magistrates are computer savvy and they only require legal sanction for taking a back up. They can avail the service of an expert to assist them in their endeavour. Recently the Supreme Court in Shamsher Singh Verma v. State of Haryana, MANU/SC/1345/2015 : 2015 (12) Scale 597, has held that CD is a 'document' within the meaning of Section 3 of the Indian Evidence Act, 1872. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, MANU/SC/0277/1975 : (1976) 2 SCC 17, the Supreme Court has held that tape records of speeches are 'documents' as defined in Section 3 of the Indian Evidence Act, 1872. This Judgment has been relied upon in Shamsher Singh Verma's case (cited supra). Therefore, we hold that articles like Memory Card, Hard Disc, CD, Pen-drive, etc., containing relevant data in electronic form are 'documents' as defined under Section 3 of the Indian Evidence Act, 1872, albeit, marking them as material objects. After all, nomenclature cannot have the effect of altering the characteristics of an object. The words 'proved' and 'disproved' in section 3 of the Evidence Act have the following common denominator;

"A fact is said to be proved/disproved when, after considering the matters before it............ "

(emphasis supplied)

Without viewing the CCTV footage, how can any Court, "consider the matter before it " to conclude that a fact has been 'proved' or 'disproved' ? That apart, Section 62 of the Indian Evidence Act, 1872 states,

"Primary evidence means the document itself produced for the inspection of the Court."

(emphasis supplied).

This does not mean that, if a secondary evidence of a document is admitted lawfully, the Court is denuded of the power to inspect it. Such an inference will lead to absurdity. Therefore, we hold that a Court has the power to view CCTV footage and video recordings, be it primary or legally admissible secondary evidence, in the presence of the accused for satisfying itself as to whether the individual seen in the footage is the accused in the dock. The trial Court should also specifically put questions to the accused when he is examined under Section 313 Cr.P.C. about his overt acts appearing in the footage and record his answers.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:      27-1-2016

Coram:  Mr.Justice R.SUDHAKAR

and  Mr.Justice P.N.PRAKASH

Criminal Appeal No.110 of 2015

K. Ramajayam @ Appu Vs.  The Inspector of Police,

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Whether application to play compact disc is tenable during defence evidence in criminal case?

 We are not inclined to go into the truthfulness of the
conversation sought to be proved by the defence but, in the
facts and circumstances of the case, as discussed above, we
are of the view that the courts below have erred in law in not
allowing the application of the defence to get played the
compact disc relating to conversation between father of the
victim and son and wife of the appellant regarding alleged
property dispute. In our opinion, the courts below have erred
in law in rejecting the application to play the compact disc in
question to enable the public prosecutor to admit or deny, and
to get it sent to the Forensic Science Laboratory, by the
defence. The appellant is in jail and there appears to be no
intention on his part to unnecessarily linger the trial,
particularly when the prosecution witnesses have been
examined.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1525 OF 2015
(Arising out of S.L.P. (Crl.) No. 9151 of 2015)

Shamsher Singh Verma Vs State of Haryana 

Dated;November 24, 2015.

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Whether compact disc is a document as per evidence Act?

 In view of the definition of ‘document’ in Evidence Act,
and the law laid down by this Court, as discussed above, we
hold that the compact disc is also a document. It is not
necessary for the court to obtain admission or denial on a
document under sub-section (1) to Section 294 CrPC
personally from the accused or complainant or the witness.
The endorsement of admission or denial made by the counsel
for defence, on the document filed by the prosecution or on the
application/report with which same is filed, is sufficient
compliance of Section 294 CrPC. Similarly on a document
filed by the defence, endorsement of admission or denial by
the public prosecutor is sufficient and defence will have to
prove the document if not admitted by the prosecution. In
case it is admitted, it need not be formally proved, and can be
read in evidence. In a complaint case such an endorsement
can be made by the counsel for the complainant in respect of
document filed by the defence.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1525 OF 2015
(Arising out of S.L.P. (Crl.) No. 9151 of 2015)
Shamsher Singh Verma 
V
State of Haryana 
Dated;November 24, 2015.
Citation;2015ALLMR(Cri)4923, 2016CriLJ364,2015(4)Crimes353(SC),(2016) 15 SCC 485.

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Whether criteria laid down in case of Anvar P.V.-v- P.K. Basheer is to be fulfilled at the time of hearing on bail application?

The learned counsel for the petitioner has not disputed that the specimen voice of the petitioner was taken for comparison by the CBI. It is mentioned in the note of submission filed by the petitioner that when the CBI wanted the petitioner to give his voice specimen, the petitioner readily gave his voice specimen for comparison with that of the voice recorded in the purported audio CD. There is also no dispute that the Forensic Voice Examination Report of the Sr. Scientific Officer of Central Forensic Science Laboratory, CBI, New Delhi is admissible under section 293 Cr. P.C. Whether the CD that was sent for examination by the Superintendent of Police, CBI, Bhubaneswar to the Central Forensic Science Laboratory fulfills the guidelines expounded by the Hon'ble Supreme Court in case of Anvar P.V.-v- P.K. Basheer (supra) and Gujarat High Court in State of Gujarat -v- Shailndra Kamalkishore Pande (supra) and whether it is admissible or not and the effect of such evidence are all matters to be considered at the stage of trial by the trial Court and the trial Court will definitely keep in mind the ratio laid down in those decisions and other decisions on that point while appreciating the electronic record documentary evidence. At the time of consideration of the bail application, it is not at all necessary to ask the prosecution (CBI) to first satisfy the fulfillment of all the criteria laid down in case of Anvar P.V.-v- P.K. Basheer (supra) before taking into account the Forensic Voice Examination Report as well as transcription of the CD.

Equivalent Citation: 119(2015)CLT177, 2014(II)OLR941

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 18388 of 2014

Decided On: 20.10.2014

 Pravata Kumar Tripathy Vs. Union of India (C.B.I.)

Hon'ble Judges/Coram:S.K. Sahoo, J.

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How to prove Email Evidence?

 The section covers those cases where an electronic record is generated from a computer which is used regularly in the normal course of business. A certificate is to be issued in that regard by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. The documents which are produced in this case are downloaded and printed from an e-mail account of an individual on a computer which was not used by that individual in his normal course of activities. Those documents can be proved by leading evidence to show that the and were then printed. A witness would have to testify that such a procedure was carried out. This has been done by the prosecution in this case. It is true that merely sending e-mail from a particular e-mail address would not lead to a presumption that the particular e-mail was sent by the originator, i.e., the person from whose e-mail address a mail emanates. Hacking is not an unknown phenomenon in the world of electronic records. Therefore, the salutary provision in law is that the presumption relating to the genuineness of an electronic message is rebuttable and the Court cannot presume that the message has been sent by a particular person. The prosecution has proved that Akib Ali was in fact the originator of these mails as they were recovered at his instance when he disclosed his e-mail identities and passwords. It was suggested by Mr. Bhattacharya the learned Counsel for the Akib Ali that anybody could create an e-mail account and send mails through that account by impersonating the originator. This is the line of cross-examination of PW 118 and PW 132. However the depositions of these witnesses in the examination-in-chief have not been shaken in their respective cross-examinations. There is no reason to doubt that the e-mails were sent and received by Akib Ali through the e-mail accounts and passwords that he mentioned. It has been suggested in the cross examination of these witnesses that the e-mails were doctored and Akib Ali was not the originator. There is no evidence on record to suggest that the Internet Protocol (IP) addresses found on the e-mails were not those of the accused. Moreover besides denying everything in his statement recorded under section 313 Cr.P.C. Akib Ali has not given any specific explanation about his e-mail accounts and passwords or about the contents of the e-mails. Therefore, in our opinion, these e-mails are admissible in evidence under section 65B of the Evidence Act and have been duly proved.

Kolkata High Court (Appellete Side)

Abdul Rahaman Kunji vs The State Of West Bengal on 14 November, 2014

Author: Nishita Mhatre

Citation: (2015)1CALLT318(HC), II(2015)CCR111(Cal.),

2016 CRLJ1159            

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