Rajasthan HC: Section 65B Certificate Valid Only from Original Recording Device Owner

The Rajasthan High Court recently delivered an important ruling regarding the issuance of certificates under Section 65B of the Indian Evidence Act, which is crucial for the admissibility of electronic records as evidence in court. The Court emphasized that a Section 65B certificate must be issued by the person who owned or operated the original device on which the electronic record was first created. It cannot be validly issued by someone whose device merely contains a transferred copy of that record.

Background of the Case

The case arose from a challenge to a Rent Tribunal order where the respondents submitted electronic evidence stored in a pen drive and compact disc. The petitioner argued that the original recording was made on a third party’s device — specifically, Rajat Sancheti’s device — but the Section 65B certificate was issued by respondent no. 2, whose device only held a later transferred copy of the recording. The petitioner submitted that under the law, only the original device owner could issue the certificate to authenticate the evidence.

Legal Precedents Cited

Justice Anoop Kumar Dhand, presiding over the matter, relied on authoritative Supreme Court rulings in Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal. These rulings firmly establish that the certificate under Section 65B must originate from the person in control of the device on which the electronic record was originally created, which ensures the authenticity and reliability of digital evidence.

Court’s Holding and Impact

The Court held that the certificate issued by respondent no. 2 concerning the transferred copy was invalid and could not render the electronic evidence admissible. However, the Court left a procedural opportunity for the respondents to file a proper and valid certificate issued by the actual owner of the original recording device, thereby allowing the evidence to potentially remain admissible if corrected.

This judgment underscores the critical importance of complying strictly with Section 65B requirements as laid down by the Supreme Court, especially regarding the chain of custody and certification of electronic evidence. Practitioners must ensure that certificates authenticating electronic records emanate from the original device’s controlling person to withstand scrutiny in judicial proceedings.

Conclusion

In the digital era where electronic evidence is increasingly common, the Rajasthan High Court’s clarification provides much-needed guidance and robustness to the procedural requirements under Section 65B of the Indian Evidence Act. This decision serves as a reminder that the integrity of electronic evidence hinges on proper certification from the original source, maintaining the evidentiary standards crucial for justice.

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No. 12210/2025

Shwetabh Singhal,  Vs M/s J.k And Sons, 

JUSTICE ANOOP KUMAR DHAND

Order: 09/09/2025.

Citation: [2025:RJ-JP:36375]

Print Page

Madras HC: Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible

 This is primarily because there has been a clear invasion of theprivacy right of the wife. It is obvious that the husband had stealthily obtained the information pertaining to the call history of his wife. He was not the owner of the mobile device or the registered user of the sim card. He had clandestine custody of the same for probably a brief while. There has been a clear breach of the privacy of the wife. In Justice K.Puttaswamy (Retd) v. UOI (AIR 2017 SC 4161), it was held that privacy is a fundamental right. Can evidence procured in violation of this right be admissible in evidence?. This question does not admit of an easy answer. The learned amicus has tabulated the dichotomy of judicial opinion :

Admissible Inadmissible

Kethana Lokes v. Rahul Bettakotte

2024 Karnataka HC 21752

Asha Latha v. Durgesh

2023 SCC OnLine Chh 3959

Deepti Kapur v. Kunal Julka

AIR 2020 Del 156

Rayala Bhuvanewari v.

Naggaphanender AIR 2008 AP 98

Preeti v. Kunal

AIR 2016 Raj 153

Neha v. Vibhor Garg (2021)

(Punjab & Haryana HC)

Sachin Arora v. Manju

2023 DHC 3197

Sankarram v. Kalaiselvi

CMSA(MD)No.54 of 2021 (Madurai

Bench of the Madras High Court).

Neha v. Vibhor Garg has been challenged before the Hon'ble Supreme Court in SLP (C) No.21195 of 2021. Vide order dated 28.04.2022, the proceedings before the Family Court have been stayed. The order of the High Court had not been stayed. {Para 9}

10.The following observations and ratio laid down by the Court of

Appeal in Imerman v. Technquiz (2010 EWCA Civ 908) are relevant : “it was a breach of confidence for a person intentionally to obtain another person’s information secretly and without authorisation, knowing that he reasonably expected it to be private, and, without that other persons authority, ...... that the husband had an expectation of privacy at common law and in accordance with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the majority of documents stored on the server which had been accessed without his authority at a stage in the divorce proceedings ....

Why should one spouse have no right of confidentiality

enforceable against the other in relation to their separate lives and personalities?...

Each spouse is entitled to a separate life, distinct from the

shared matrimonial life.

Legal protection applies to protect the confidence itself, not merely to prevent the dissemination of information. It does not need to be shown that the information will be misused; merely that it has been obtained in breach of confidence would be sufficient.”

In Katz v. United States (389 U.S 347 (1967), Justice Harlan propounded the reasonable expectation of privacy test to determine whether an action by the government has violated an individual's reasonable expectation of privacy. It was a two part test ; the individual has exhibited an actual (subjective) expectation of privacy and the expectation is one that society is prepared to recognise as reasonable. If both requirements are met and the government has taken an action which violates this 'expectation', then the government's action has violated the individual's right. In a research paper titled “My Diary is Your Diary : The Right to Privacy in a Marriage” by Turkish author Dr.Nadire Ozdemir, it was recommended that the Harlan test laid down in the context of state surveillance should be extended to matrimonial relationships also and that the spouses should be entitled to claim right of privacy against each other.

11.Some of the courts which leaned in favour of admissibility of

evidence obtained in breach of privacy relied on Section 14 of the Family Courts Act, 1984. The said provision is 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).”

I am however not able to agree with such an approach. Though privacy like any other fundamental right is not absolute, it was held in Justice K.Puttaswamy case by Justice D.Y.Chandrachud for himself and three other Hon'ble Judges that any curtailment or deprivation of the privacy right would have to take place under a regime of law and that the procedure must be fair, just and reasonable and subject to constitutional safeguards. The expression

“regime of law” requires some elaboration. Taking inspiration from the title of the book “Legislating Privacy” by Priscilla M Regan, I hold that “regime of law” envisages a special and comprehensive legislation dealing with the subject of privacy. Such a parliamentary legislation would also deal with the question relating to admissibility of evidence procured in breach of one's privacy. Exceptions may be created. National security and supreme public interest could be overriding considerations. In the absence of such a

comprehensive legislation, one has to conclude that there is no “regime of law” dealing with the subject of privacy as of now. The Family Courts Act, 1984 was enacted more than three decades prior to Justice Puttaswamy judgment. The discretionary power conferred on the Family Court under Section 14 of the Family Courts Act cannot be said to fall within the meaningof the aforesaid expression “regime of law”. There is no legislative validation of evidence obtained by violating the fundamental right to privacy. In this background, it would not be proper for the courts to carve out exceptions on their own.

12.The observations made by the High Court of Harare, Zimbabwe

in CRB 57 of 2016 (S. v Nsoro) dated 25.02.2016 are apposite though rendered in a criminal case. The deceased husband refused to let the accused wife read a text message which the husband had received on his phone. Out of anger over the deceased’s refusal to divulge the message, the wife had stabbed the husband causing his death. Justice Chitapi has the following take on the right to privacy between spouses :

“...Section 57 (d) of the Constitution provides that

every person has the right to privacy of their

communications. There is no law which provides that

a husband or wife has a right to infringe on the

privacy of the other’s communications. The accused’s

insistence that the deceased should divulge a

communication made to him on his phone was in

itself an infringement upon the right of the deceased

to privacy of communication. The deceased was

lawfully entitled to refuse to divulge the message he

had received on his phone to the accused albeit the

accused being his wife....

It is the court’s view that society should learn to

respect privacy of communications. Many a time, the

cellphone has been cause of ‘matrimonial quarrels

and domestic disputes because couples do not respect

each others' right to communications made or

received. A cellphone is materially a gadget which is

intended to ease communications between persons. A

lot of cases come before the courts in which a spouse

will have invaded the private communications of

another by going through messages and other

communications on the other spouse’s phone. This

practice should be deprecated. It amounts to

investigating or eavesdropping on one another.

Usually, spouses who do this will be aiming to find

evidence of wrongful conduct by the other.

Eavesdropping on another’s cellphone is evidence of

lack of trust in that other person. Courts are flooded

with cases where couples or spouses seek to prove

wrongful conduct by the other using evidence in the

form of messages retrieved from another spouse’s

phone. Such evidence unless obtained with the

consent of the owner of the phone would have been

illegally obtained in contravention of the rights of

every person to the privacy of communication as

guaranteed by Section 57 of the constitution and

evidential rules relating to admissibility of illegally

obtained evidence should be applied....”

13.I came across an interesting article titled “Rethinking the ‘Fruits

of the poisonous tree’ doctrine: Should the ‘ends’ justify the

‘means’?” (2020 SCC OnLine Blog OpEd 76). The authors Bharat Chugh & Taahaa Khan lament the consequentialist approach that ‘the tree may be poisonous but the fruit is fine’. To them, the concept of ends justifying the means is deeply troubling and calls for judicial intervention. They also invoke the “Unfair Operation Principle” applied by the UK Courts. This principle prohibits admission of evidence if in the given case, its reception runs contrary to the principles of basic fairness. The principle gives courts the discretion to decide, on a case to case basis, as to what would operate fairly or unfairly against the accused, and in appropriate cases, exclude such evidence. Theauthors refer to 94th Report of the Law Commission of India which suggests exclusion of evidence unlawfully obtained in criminal cases.

14.Trust forms the bedrock of matrimonial relationships. The

spouses must have implicit and total faith and confidence in each other. Snooping on the other destroys the fabric of marital life. One cannot pry on the other. Coming specifically to the position of women, it is beyond dispute that they have their own autonomy. They are entitled to expect that their private space is not invaded. The wife may maintain a diary. She may jot down her thoughts and intimate feelings. She has every right to expect that her husband will not read its contents except with her consent. What applies to diary will apply to her mobile phone also. The Hon'ble Supreme Court is now considering the question whether forcible sexual intercourse by the husband against the wife's will would constitute marital rape. Obtaining of information pertaining to the privacy of the wife without her knowledge and consent cannot be viewed benignly. Only if it is authoritatively laid down that evidence procured in breach of the privacy rights is not admissible, spouses will not resort to surveillance of the other. One may wonder if marital misconduct which has to be made out for obtaining relief may become impossible of proving. It is not so. It can very well be established and proved by appropriate means. Interrogatories can be served. Adverse inference can be drawn. The charged spouse can be called upon to file affidavit with the express warning that falsity will lead to prosecution for perjury. In exceptional cases, the court can even take it upon itself to unearth the truth. Law cannot proceed on the premise that marital misconduct is the norm. It cannot permit or encourage snooping by one spouse on the other. Privacy as a fundamental right includes spousal privacy also and evidence obtained by invading this right is inadmissible.

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.

Read full Judgment here: Click here.

Print Page

Whether the court can allow husband to prove call record of mobile of his wife downloaded from website of JIO by submitting his own S 65B certificate ?

Coming to the case on hand, the certificate enclosed by the husband reads that the electronic statement was taken from Jio official website and that the website is in order without any malfunction. One can take judicial notice of the fact that call history can be obtained by reaching out to the website of the concerned telecom service provider from the mobile phone. The user of the device would get OTP. After authentication, the information sought for will be provided which can be downloaded. A cursory perusal of Ex.P4 would show that the mobile phone belonged to the wife and the husband had access to the same. When the mobile phone with the sim card was in the custody of the husband, he had reached out to the telecom service provider (Jio) and obtained the call data. The certificate filed by the husband is no certificate at all. It is not a defective certificate. It is not the case of the husband that he wrote to the service provider and there was no response. The call history was downloaded from Jio website. Therefore, only a person occupying a responsible official position in Jio could have issued the certificate. The husband/respondent herein could not have issued a self serving certificate. Therefore, the case on hand will fall outside the caveat laiddown in Arjun Panditrao Khotkar by the Hon'ble Supreme Court. Ex.P4 ought to have been accompanied by a certificate as contemplated in Section 65B(4) of the Indian Evidence Act, 1872. The court below could not have deferred taking a decision in the matter. {Para 8}

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.

Read full Judgement here: Click here.

Print Page

Admissibility and proof of electronic records - by Tamil Nadu State Judicial Academy

 https://drive.google.com/file/d/1hpdU_4ZHpW3_gdqAg-zcBTI47Pw1CI0w/view?usp=sharing

Print Page

How does Section 79A of Information technology Act read with S 63 of BSA addresses the issue of electronic evidence tampering?

 Section 79A of the Information Technology Act, 2000 addresses the issue of electronic evidence tampering by empowering the Central Government to designate specialized agencies as Examiners of Electronic Evidence. These designated examiners play a crucial role in ensuring the authenticity and integrity of electronic evidence presented in courts and other authorities.

 Ensuring Authenticity and Integrity

- The designated Examiners of Electronic Evidence are responsible for conducting thorough examinations of electronic data to verify its authenticity and integrity.

- Their analysis focuses on assessing whether the evidence is genuine and has not been altered, tampered with, or manipulated in any way.

- By providing expert opinions on the reliability of electronic evidence, the Examiners help safeguard against potential tampering or misinterpretation of digital data.

Print Page

What is the basic concept of admissibility of electronic record with reference to provisions of the Indian Evidence Act, 1872?

 The admissibility of electronic records in India is governed by the provisions of the Indian Evidence Act, 1872. With the advancement of technology, electronic records have become an integral part of contemporary evidence in legal proceedings. The Indian Evidence Act has been amended to address the admissibility of electronic records, recognizing their importance in litigation. Here's a note on the admissibility of electronic records with reference to the Indian Evidence Act, 1872:

1. Definition of Electronic Record (Section 2(1)(t)) of The Information Technology Act, 2000: It defines an electronic record as "data, record, or data generated, image, or sound stored, received, or sent in an electronic form or microfilm or computer-generated microfilm."

Print Page

Whether the court can admit evidence of SDR, CDR and tower location in criminal case if prosecution has failed to support this evidence with S 65B Evidence Act certificate?

  In addition to the evidence of CCTV footage, the

prosecution sought to rely upon SDR, CDR and tower location of the

accused. Mahamuni (PW15) has stated in his evidence that as per his

letter issued to Superintendent of Police, Buldhana, he received four

papers which were marked as Exh. 125. He stated in his evidence

that from CDR and SDR, he came to know about the location of the

accused at the time of incident. He identified the contents of the said

letter which were marked as Exhs. 126 and 127. Learned trial Court refused to place reliance upon SDR, CDR and tower location of the accused as the said electronic evidence were not supported by certificate under Section 65B (4) of the Evidence Act. In our opinion,the learned trial Court has rightly refused to rely upon the electronic evidence placed on record by the prosecution in the form of CCTV footage, CDR, SDR and tower location of the accused for noncompliance of Section 65B (4) of the Evidence Act. {Para 126}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

CRIMINAL CONFIRMATION CASE NO. 01 OF 2020

 State of Maharashtra, Vs  Sagar Vishwanath Borkar,

Print Page

How to appreciate CCTV camera evidence in Rape Case under POCSO Act?

 G] ADMISSIBILITY OF ELECTRONIC EVIDENCE :-

120. Sections 65A and 65B of the Evidence Act, 1872 deal

with the admissibility and contents of evidence of information

contained in electronic records. The Apex Court in the case of

Anwar P. V. vs P. K. Basheer, reported in (2014) 10 SCC 473 has held

that these two sections are a complete Code in themselves on the

admissibility of evidence of information contained in electronic

records.

121. Section 65B(1) differentiates between –

i) the “original document” – the electronic record on

the device in which the original information is first

stored (qualifying it as primary evidence), and

ii) the output from such device which contains

information originating from the original document,

i.e. a copy made therefrom (being secondary

evidence) [Arjun Panditrao Khotkar vs Kailash

Kushanrao Gorantyal, (2020) 7 SCC 1].

122. The Hon’ble Apex Court has in Arjun Panditrao Khotkar

(supra), in para 73.2, expounded the law on admissibility of primary

and secondary evidence in electronic form in the following words–

“ 73.2. 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.”

[Emphasis supplied]

123. It is necessary to note that the Hon’ble Apex Court in

Anwar P. V. (supra) has clarified its position on primary evidence

holding that if an electronic record is used as primary evidence under

Section 62 of the Evidence Act, it may be admissible in evidence

without any compliance of conditions under S. 65B. Arjun Panditrao

Khotkar (supra) held this position to be good law when read without

the words, “under Section 62 of the Evidence Act”, while placing its

derivation in S.65B(1). The Hon’ble Apex Court held that the

certificate under S. 65B(4) is unnecessary if the “original document”

itself is produced, since it is being used as primary evidence of the

information contained in the electronic record. This can be done by

the owner of the device (on which the original electronic record is

first stored) by proving that it is owned and/or operated by him.

124. Commonly, the original electronic record of a CCTV

footage is stored on a memory chip/CD/DVD/hard drive or any

similar device on a computer, DVR or NVR wherein the footage is

recorded. The original electronic record stored on a memory

chip/CD/DVD/hard drive, being the place where the electronic

record is first stored, is said to be the original document, qualifying it

as primary evidence. Such information can be led as evidence by

producing the hard drive, wherein the original document is first

stored, before the Court. In order to prove the information contained

in such electronic record, the memory chip/CD/DVD/hard drive on

which the electronic record was first stored can be produced before

the Court. Similarly, in cases where the device happens to be a part

of a “computer system” or “computer network”, such system or

network or server can be produced before the Court, if it is possible.

In case where the device 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 proving

information contained therein can be, as specified above is, “in

accordance with Section 65B(1), together with the requisite

certificate under Section 65B(4).”

125. The prosecution has relied upon the CCTV footage from

camera no. 2 covering the area of the main gate of the office of

APMC Market, Chikhli. The prosecution has examined PI Gulabrao

Wagh (PW14) and Dy.S.P. Baburao Mahamuni (PW15) in order to

prove the said CCTV footage. From the evidence of Dy.S.P. Mahamuni

(PW15), it appears that the prosecution has brought on record the

CCTV footage copied in pendrive (Article-M). It is stated by Dy.S.P.

Mahamuni (PW15), that its Hash value was taken by NPC Sharad

Giri and accordingly certificate under Section 65B of the Evidence

Act (Exhibit 112) was taken. Though evidence of PI Wagh (PW14)

and Dy.S.P. Mahamuni (PW15) has been corroborated by panch

witness Subhash Bhalerao (PW2) regarding CCTV footage, it appears

that the prosecution has failed to adduce evidence of a person

occupying responsible official position in relation to the operation or

the management of the activities in relation to CCTV in the APMC

Market, Chikhli. Since the prosecution has failed to bring on record

the primary evidence in relation to CCTV footage in the form of hard

disc of the said CCTV footage wherein the footage was stored, it was

necessary for the prosecution to satisfy the ingredients of Sub-Section

(4) of Section 65B of the Evidence Act. Merely because the CCTV

footage has been exhibited by the trial Court and no objection was

raised on behalf of the accused, the CCTV footage cannot be read in

evidence. The said issue is no longer res-integra in view of the

judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar

(supra). We are, therefore, of the considered opinion that in absence

of compliance of Sub-Section (4) of Section 65B of the Evidence Act,

the CCTV footage from camera no.2 covering the area of main gate

of the office of APMC Market, Chikhli cannot be relied upon as

admissible evidence of the prosecution.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

CRIMINAL CONFIRMATION CASE NO. 01 OF 2020

 State of Maharashtra, Vs  Sagar Vishwanath Borkar,

Print Page

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

The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the 4 absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4) is not always mandatory.

3. We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. 

IN THE SUPREME COURT OF INDIA

CIVIL APPEAL NO(s). 20825­20826 OF 2017

Date of Order: 26.07.2019

 Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others

Citation:  (2020) 3 SCC 216

Print Page

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 

Print Page

Whether Court can relax requirement of production of certificate U/S 65B of Evidence Act for proving electronic evidence?

Though in view of Three-Judge Bench judgments in Tomaso
Bruno and Ram Singh (supra), it can be safely held that
electronic evidence is admissible and provisions under
Sections 65A and 65B of the Evidence Act are by way of a
clarification and are procedural provisions. If the
electronic evidence is authentic and relevant the same can
certainly be admitted subject to the Court being satisfied
about its authenticity and procedure for its admissibility may
depend on fact situation such as whether the person producing
such evidence is in a position to furnish certificate under
Section 65B(h).
(8) Sections 65A and 65B of the Evidence Act, 1872 cannot be
held to be a complete code on the subject. In Anvar P.V.
(supra), this Court in para 24 clarified that primary evidence
of electronic record was not covered under Sections 65A and
65B of the Evidence Act. Primary evidence is the document
produced before Court and the expression “document” is defined
in Section 3 of the Evidence Act to mean any matter expressed
or described upon any substance by means of letters, figures
or marks, or by more than one of those means, intended to be
used, or which may be used, for the purpose of recording that
matter.
(9). The term “electronic record” is defined in Section 2(t)
of the Information Technology Act, 2000 as follows:
“Electronic record” means data, record or data
generated, image or sound stored, received or
sent in an electronic form or micro film or
computer generated micro fiche.”8
(10). Expression “data” is defined in Section 2(o) of the
Information Technology Act as follows.
“Data” means a representation of information,
knowledge, facts, concepts or instructions which
are being prepared or have been prepared in a
formalised manner, and is intended to be
processed, is being processed or has been
processed in a computer system or computer
network, and may be in any form (including
computer printouts magnetic or optical storage
media, punched cards, punched tapes) or stored
internally in the memory of the computer.”
(11) The applicability of procedural requirement under Section
65B(4) of the Evidence Act of furnishing certificate is to be
applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being
in control of the said device and not of the opposite party.
In a case where electronic evidence is produced by a party who
is not in possession of a device, applicability of Sections 63
and 65 of the Evidence Act cannot be held to be excluded. In
such case, procedure under the said Sections can certainly be
invoked. If this is not so permitted, it will be denial of
justice to the person who is in possession of authentic
evidence/witness but on account of manner of proving, such
document is kept out of consideration by the court in absence
of certificate under Section 65B(4) of the Evidence Act, which
party producing cannot possibly secure. Thus, requirement of
certificate under Section 65B(h) is not always mandatory.
(12) Accordingly, we clarify the legal position on the
subject on the admissibility of the electronic evidence,
especially by a party who is not in possession of device from
which the document is produced. Such party cannot be required
to produce certificate under Section 65B(4) of the Evidence
Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of
justice so justifies.

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

SHAFHI MOHAMMAD  Vs THE STATE OF HIMACHAL PRADESH 

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

CORAM :

HON'BLE MR. JUSTICE ADARSH KUMAR GOEL

HON'BLE MR. JUSTICE UDAY UMESH LALIT

Print Page

Whether electronic evidence is admissible even if certificate U/S 65B of Evidence Act is not produced?

Learned counsel contended that the tape-recorded conversation has been relied on without there being any certificate under Section 65B of the Evidence Act, 1872. It was contended that audio tapes are recorded on magnetic media, the same could be established through a certificate under Section 65B and in the absence of the certificate, the document which constitutes electronic record, cannot be deemed to be a valid evidence and has to be ignored from consideration.

Reliance has been 30 placed by the learned counsel on the judgment of this Court in Anvar P.V. vs. P.K. Basheer and others, (2014) 10 SCC 473. The conversation on the landline phone of the complainant situate in a shop was recorded by the complainant. The same cassette containing conversation by which ransom call was made on the landline phone was handed over by the complainant in original to the Police. This Court in its judgment dated 25.01.2010 has referred to the aforesaid fact and has noted the said fact to the following effect: "The cassette on which the conversations had been recorded on the landline was handed over by Ravi Verma to S.I. Jiwan Kumar and on a replay of the tape, the conversation was clearly audible and was heard by the Police."

24. The tape recorded conversation was not secondary evidence which required certificate under Section 65B, since it was the original cassette by which ransom call was 31 tape-recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by Section 65B is a mandatory condition. In Anvar P.V. (supra) this Court had laid down the above proposition in paragraph 22. However, in the same judgment this Court has observed that the situation would have been different, had the primary evidence was produced.

The conversation recorded by the complainant contains ransom calls was relevant under Section 7 and was primary evidence which was relied on by the complainant. In paragraph 24 of the judgment of this Court in Anvar P.V. it is categorically held that if an electronic record is used as primary evidence the same is admissible in evidence, without compliance with the conditions in Section 65B. Paragraph 24 is as extracted below:

"24. The situation would have been different had the appellant 32 adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case.

The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act."

SUPREME COURT OF INDIA

Vikram Singh @ Vicky Walia and ANR. Vs. State of Punjab and ANR.

[Criminal M.P. Nos.16673-16674 of 2016]

[Criminal M.P. Nos.16675-16676 of 2016 in Review Petition (CRL.) Nos.192-193 of 2011 in Criminal Appeal Nos.1396-1397 of 2008]
Dated:July 07, 2017.

Citation:(2017) 8 SCC 518

Print Page

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

Print Page

Whether photograph can be proved even if its negative is not produced?

It is contended by counsel on behalf of the Defendant that the photographs can only be proved by producing the negative of the photographs and by leading evidence of the photographer. This dogmatic approach to consider the admissibility of only photograph   as   evidence   is   oft   applied   by   relying   upon   two judgments of this Court in the case of Laxman Ganpati Khot V. Anusuyabai, AIR 1976, (BOM)168 and Sabera Begum Vs. G M Ansari, 1978 LawSuit (Bom) 106. The judgments lay down a sound mode of proof of a photograph; in the facts of the case of Laxman (Supra), the only mode of proof.  However, that is not only way in which a photograph, like any other document under all circumstances, could be proved.   In the case of Laxman (Supra), the negative was sought to be proved. From the negative an enlarged print was made which was sought to be proved.   Such enlargement was made by a mechanical device by an expert who was the photographer.   How this law came to be laid down in the case of  Laxman (supra) must be first appreciated.    That was the case in which an adoption of a boy was sought to be proved.   One of the documentary evidence relied upon in support of the adoption ceremony which was alleged was a negative of a photograph of the adoption ceremony; not the positive of the photograph. The son of the then deceased photographer deposed.  He produced the negative of the photograph after he was shown the positive photograph and called upon to search the negative from his father's records.  He produced the negative and deposed that he could not say whether that negative was prepared by his father. Hence it was held that the negative was not duly proved and was not admissible in evidence.  The judgment essentially deals with the mode of proof of a negative of a photograph and the admissibility   of   such   a   negative.     The   judgment   does   NOT consider the admissibility of a positive photograph.    The ruling run thus :  It is only when the person who takes a photograph and develops it into a negative himself comes into the box and deposes to both those facts that a negative becomes admissible in evidence. Together with such a negative the positive photograph which was given to the witness to search out its negative was not produced.   An enlarged print made from another photo print in respect of which the negative was lost was produced.     It was observed that as regards the admissibility of such enlarged print,   the position was worse.  The observation of the Court why the print of a photograph cannot be admissible runs thus :    ….. no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner already indicated above.   That   was   not   the   photograph,   but   an   enlargement   of   the photograph.   It could be made only by a skilled mechanical process.  Hence the observation.   A simple photograph may be taken by any one.   It may be developed by any other.  The person taking the photograph or the  person  present when  it was taken  can  depose  as to its taking, much as a person writing or signing a document or present when it is written or signed can depose as to that fact. Upon such deposition the writing becomes admissible subject, of course,   to cross examination  of the  witness proving the document.     A photograph is much the same.   It has to be identified.     Evidence   has   to   be   led   about   the   truth   of   the contents   of   the   photograph   which   is   done   upon   such identification.  A photograph, or any other document, may be proved by any of the 7 ways in which any document may be proved as set out in the case of Rani Bai Vs, LIC,  A 1981 MP 69 pg. 72.   There is nothing in law which bars proof of a photograph by the person taking (clicking) the photograph who may be analogous to a scribe or signatory of a document, a person present when it was taken, the expert (photographer) who took the photograph and developed it from its negative, the acquaintance being the person who is acquainted with the contents of the photograph i.e. the persons or objects therein, or even the person who can compare its contents with other evidence.   What must be appreciated is that admissibility of a document is a stage prior to appreciation of such documentary evidence. What   would   not   be   admitted   into   evidence   cannot   be appreciated  upon marshalling the evidence.  Hence to consider the merits of a given case, admitting a document in evidence must be upon the direct oral evidence of its existence.   Such evidence enjoins its admittance into evidence so as to give the witness,   or   the   party   producing   such   evidence   though   such witness, the right of being heard upon the case he seeks to make out.  Considering admissibility of documentary evidence does not allow a court to bar a party from being heard upon the evidence sought to be produced.  The technicality that only one mode of evidence set out in a judgment must be adhered to without seeking exceptions or variations, or without application of mind by any other mode, is to not allow party the right to be heard upon documentary evidence he / she seeks to produce because it happens to be a photograph.  If this were so, no photographs can in future be ever admitted in evidence as they all would be digital productions having no negatives.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY  ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO.19 OF 1999 IN TESTAMENTARY PETITION NO.864 OF 1996 

Ronald Fernandes V. Mrs. Rita Pinto         CORAM :   MRS. ROSHAN DALVI, J.            

DATE     :   8th      May, 2013. 

Print Page

Whether CDRS of mobile phones are admissible in evidence without certificate as per S 65B of Evidence Act?

That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83, it was held that:

“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof.” In RVE Venkatachala Gounder, this Court held as follows:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior  Court.” [Emphasis supplied] It would be relevant to refer to another case decided by this Court in PC Purshothama Reddiar v. S Perumal, (1972) 1 SCC 9. The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate stage by holding that:

“Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”

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

                                                                                 REPORTABLE

Supreme Court of India

Sonu @ Amar vs State Of Haryana on 18 July, 2017

Author: L N Rao

Citation:AIR 2017 SC 3441

Print Page