Supreme Court: Oral evidence of officials of the telecom company cannot substitute Section 65B certificate

 

Understanding Call Detail Records and the Statutory Requirements of Section 65B Certification

In the contemporary legal landscape, telecommunications data serves as a silent, ubiquitous witness. For the legal practitioner, a Call Detail Record (CDR) represents a "digital footprint" capable of establishing presence, association, and timeline. However, the transition of this data from a server log to admissible evidence is governed by rigorous statutory prerequisites. As a senior architect of legal curriculum, it is imperative to understand that in the realm of electronic evidence, the integrity of the process is as vital as the fact of the evidence itself.

1. The "Digital Footprint": Defining the Call Detail Record (CDR)

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Supreme Court: Call Detail Records are Not Admissible Without S.65B Evidence Act Certificate

 It was further contended that the call detail

records were proved by the nodal officers of the

service providers, i.e. Vibhor Rastogi (PW.23) and

Saurabh Kumar (PW.24) and hence, non-production

of the certificate under Section 65-B of the Evidence

Act [Section 63 of the BSA] pales into insignificance.

Mere non-production of the certificate under Section

65-B of the Evidence Act [Section 63 of the BSA] in

this case cannot be treated to be fatal to the

prosecution’s case, particularly, when the call detail

records have been duly proved by examining the

employees of the service providers i.e., Vodafone and

Bharati Hexacom Ltd./Bharati Heckjakom Ltd.{Para 22}

18. The Evidence Act does not contemplate

or permit the proof of an electronic record by

oral evidence if requirements under Section

65-B of the Evidence Act are not complied

with, as the law now stands in India.”

(Emphasis Supplied)

52. Admittedly, in the present case, the certificate

under Section 65-B of the Evidence Act [Section 63 of

the BSA] was not proved by the prosecution. In the

absence of the certificate, mandatorily required

under Section 65-B of the Evidence Act [Section 63 of

the BSA], the call detail records become inadmissible

in evidence and cannot be relied upon to support the

prosecution’s case.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2026

(Arising out of SLP (Crl.) No (s). 1977 of 2026)

POORANMAL Vs  THE STATE OF RAJASTHAN & ANR. 

Author: Mehta, J.

Citation: 2026 INSC 217.

Dated: MARCH 10, 2026.

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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]

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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.

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Delhi HC: There Can't Be Piecemeal Disclosure Of Material On Which Prosecution Seeks To Base Its Case

It is a cardinal principle of criminal jurisprudence that the accused is to be supplied with all documents that the prosecution seeks to rely upon, before the commencement of the trial. There cannot be piecemeal disclosure of material on which the prosecution seeks to base its case. The requirement to disclose the entire incriminating material prior to framing of charge stems from the right of the accused of fair opportunity to meet the case of the prosecution and to effectively put forth the defence. {Para 39}

40. To elaborate, such requirement is imperative to afford a meaningful opportunity to the accused to defend at the following stages - firstly, prior to commencement of trial to enable the accused to contest the framing of charge and seek discharge. Secondly, in case the accused fails to seek discharge, he should have fair opportunity to cross-examine prosecution witnesses and put his defence to them. Thirdly, to enter on his defence and adduce any evidence in support thereof.

41. Thus, requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 CRL.M.C. 4107/2023 & CRL.M.A. 5116/2024

CENTRAL BUREAU OF INVESTIGTATION  Vs R. VASUDEVAN & ORS. 

CORAM: HON'BLE MR. JUSTICE VIKAS MAHAJAN

Dated:  22.05.2024.

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Whether non production of S 65B certificate of Evidence Act at an earlier stage is a curable defect?

 The courts below had gone on a wrong premise to opine that there was delay of six years in producing the certificate whereas there was none. The matter was still pending when the application to resummon M. Krishna (PW-189) and produce the certificate Under Section 65-B of the Act was filed Under Section 311 of the Code of Criminal Procedure. {Para 12}

13. It was only vide order dated 07.04.2017 that the report prepared on the basis of electronic devices was refused to be taken on record by the Trial Court. The original electronic devices had already been produced in evidence and marked as MOs. It was during the examination in chief of M. Krishna (PW-189) that the report of CFSL dated 29.11.2010 was sought to be exhibited. However, the Trial Court vide order dated 07.04.2017 declined to take the same on record in the absence of a certificate Under Section 65B of the Act. When the aforesaid witness was further examined in chief on 27.04.2017, the report Under Section 65B was produced to which objection was raised by the counsel of the defence and vide order dated 20.06.2017 the Trial Court declined to take the certificate, issued Under Section 65B of the Act, on record. It was thereafter that an application was filed Under Section 311 of the Code of Criminal Procedure for recalling M. Krishna (PW-189) and produce the certificate Under Section 65-B of the Act on record. The same was rejected by the Trial Court vide order dated 18.01.2018.

14. From the aforesaid facts, it cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the original electronic devices were already produced and marked MOs, there was no need to produce the certificate Under Section 65-B of the Act. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the Accused against the production of CFSL report prepared on the basis of the electronic devices seized.

15. Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate Under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate Under Section 65B of the Act at this stage will not result in any irreversible prejudice to the Accused. The Accused will have full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Code of Criminal Procedure is there. The object of the Code is to arrive at truth. However, the power Under Section 311 of the Code of Criminal Procedure can be exercised to subserve the cause of justice and public interest. In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the Accused.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3456 of 2023 (Special Leave Petition (Crl.) No. 6548 of 2022)

Decided On: 06.11.2023

State of Karnataka Vs. T. Naseer and Ors.

Hon'ble Judges/Coram:

Vikram Nath and Rajesh Bindal, JJ.

Citation: 2023/INSC/988,MANU/SC/1217/2023.

Author: Rajesh Bindal, J.

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Can the court call a witness in a criminal case on an application filed by a third party U/S 311 of the CrPC?

In the facts and circumstances of the present case, the petitioner-Company is neither the complainant nor is a victim but is a telecasting company who had conducted a sting operation and the video was telecasted which bearing has got direct bearing upon the subject matter of the present FIR. This Court is of the view that the subject matter of the telecast goes to the root of the matter. The scope of Section 311 Cr.P.C is very wide as has been so held in a plethora of judgments as discussed above. The journalist namely Abhishek who has been summoned as a prosecution witness is not an authorized person, according to the petitioner-Company, whereas the Deputy General Manager namely Arunesh Kumar is an authorised person to issue a certificate and prove the same under Section 65-B of the Evidence Act vide Annexure P-7 which is an authorization letter. Therefore, this Court is of the view that even if the petitioner is not a victim nor complainant but he could have certainly filed application under Section 311 Cr.P.C on the basis of facts and circumstances. {Para 26}

27. It is therefore held that for the purpose of filing of application under Section 311 Cr.P.C, it is not necessary that the applicant has to be either complainant or prosecution or victim or a listed witness. The provisions of Section 311 Cr.P.C can be invoked by any other person who is able to show that the evidence of witness sought to be examined will be necessary for just decision of the case. Rather, a persual of Section 311 Cr.P.C would show that it is the duty of Court to apply its mind to ascertain as to whether testimony of person sought to be summoned is required for just decision of the case. However in such like cases, power has to be exercised in a very careful, diligent and judicious manner for which cogent and strong reasons should be recorded.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CRM-M-52970-2022 (O&M)

Bennett Coleman and Company Limited Vs State of Haryana and others

CORAM: HON’BLE MR. JUSTICE JASGURPREET SINGH PURI

Neutral Citation No:=2023:PHHC:046881

Date of Decision: 29.03.2023

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Bombay HC: Electronic evidence cannot be used for cross-examination without a certificate as per S 65B of Evidence Act

 Emphasizing this facet of sub-section (4) the decision in Anvar holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. Reliance was placed on the earlier decision in Union of India v. CDR Ravindra V Desai [(2018) 16 SCC 273] wherein it was emphasised that non-production of a certificate under Section 65-B of Evidence Act on an earlier occasion is a curable defect. Reliance was also placed on the judgment of the Supreme Court in Sonu @ Amar v. State of Haryana [(2017) 8 SCC 570], wherein it was held that the crucial test was whether the defect could have been cured at the stage of marking the document. Applying the said test it was held that 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. Thus, though it may be considered that the production of certificate is a curable defect; yet, accused in present case should explain from whose custody he has procured the said CCTV Footage. Unless the basic authenticity of the said document/electronic record is shown, it can not be even used in cross-examination.

20. The procedure adopted by learned Magistrate was wrong. When the accused had not explained any reason in his application Ex.38, which was for production of document; there was no question of allowing the informant to re-call for cross. Further the learned Magistrate has failed to see that he had not allowed the production of document first, but then went on to re-call the witness in advance. Neither in application Ex.38 nor in Ex.37, the accused has disclosed the source from where he has secured the CCTV footage. There was no attempt on his part earlier to call the owner of the said shop, where the CCTV cameras are installed. He also says that he has downloaded the said footage on the CD and has produced it. That means the manner in which the copy of the original record was made has not been explained. It appears that the CD has been got produced without its transcription. When the authenticity of the document was raised, then at least certain prima facie compliance ought to have been got done, before re-calling the witness by the learned Magistrate. When all these facts and circumstances were not observed by the learned Magistrate, though in normal course it ought not to have been observed, it will have to be observed that the impugned orders below Ex.37 and 38 are sheer example of non-application of mind and non-adherence of basic provisions of law. They are patently illegal, hence, deserve to be set aside by invoking the constitutional powers under Article 226 and 227 of Constitution of India and inherent powers of this Court under Section 482 of the Code of Criminal Procedure.

In the High Court of Bombay,Aurangabad Bench

(Before Vibha Kankanwadi, J.)

X   Vs  State of Maharashtra 

Criminal Writ Petition No. 1579 of 2019

With

Criminal Application No. 3214/2019

Decided on January 13, 2020

Citation: 2020 SCC OnLine Bom 143

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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

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

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

10. Section 14 of the Act reads as follows:

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

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

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

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 513 of 2018

Decided On: 14.01.2019

Pramod E.K.   Vs.  Louna V.C.

Hon'ble Judges/Coram:

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

Citation: AIR 2019 Kerala 85

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Whether Court should discharge accused if prosecution fails to produce certificate as per S 65B of Evidence Act along with chargesheet?

 In the present case, on 15 November 2016, the complainant is

alleged to have met the respondent. During the course of the meeting, a
conversation was recorded on a spy camera. Prior thereto, the investigating
officer had handed over the spy camera to the complainant. This stage does
not represent the commencement of the investigation. At that stage, the
purpose was to ascertain, in the course of a preliminary inquiry, whether the
information which was furnished by the complainant would form the basis of
lodging a first information report. In other words, the purpose of the exercise
which was carried out on 15 November 2012 was a preliminary enquiry to
ascertain whether the information reveals a cognizable offence.
22 The High Court has in the present case erred on all the above
counts. The High Court has erred in coming to the conclusion that in the
absence of a certificate under Section 65B when the charge sheet was
submitted, the prosecution was liable to fail and that the proceeding was
required to be quashed at that stage. The High Court has evidently lost sight
of the other material on which the prosecution sought to place reliance.
Finally, no investigation as such commenced before the lodging of the first
information report. The investigating officer had taken recourse to a
preliminary inquiry. This was consistent with the decision in Lalita Kumari.
23 The High Court ought to have been cognizant of the fact that the trial
court was dealing with an application for discharge under the provisions of
Section 239 of the CrPC. The parameters which govern the exercise of this
jurisdiction have found expression in several decisions of this Court. It is a
settled principle of law that at the stage of considering an application for
discharge the court must proceed on the assumption that the material which

has been brought on the record by the prosecution is true and evaluate the
material in order to determine whether the facts emerging from the material,
taken on its face value, disclose the existence of the ingredients necessary
to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10,
adverting to the earlier decisions on the subject; this Court held :
“29…At this stage, probative value of the materials has to be
gone into and the court is not expected to go deep into the
matter and hold that the materials would not warrant a
conviction. In our opinion, what needs to be considered is
whether there is a ground for presuming that the offence has
been committed and not whether a ground for convicting the
accused has been made out. To put it differently, if the court
thinks that the accused might have committed the offence on
the basis of the materials on record on its probative value, it
can frame the charge; though for conviction, the court has to
come to the conclusion that the accused has committed the
offence. The law does not permit a mini trial at this stage.”
24 For the above reasons we are of the view that the appeal would have
to be allowed.

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.819 of 2019

State By Karnataka  Vs M. R. Hiremath 

Dr Dhananjaya Y Chandrachud, J
Dated:01 MAY 2019.
Citation: (2019) 7 SCC 515 

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

The core question to be addressed in the present case is

whether the CD produced before the Family Court could be admitted

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

the Indian Evidence Act.

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

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

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

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

relevancy and admissibility of evidence incorporated in the Indian

Evidence Act 1872 to the proceedings before them and further erred

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

according to us, is legally sound and merits acceptance.

10. Section 14 of the Act reads as follows:

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

may receive as evidence any report, statement, documents,

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

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

otherwise relevant or admissible under the Indian Evidence

Act, 1872 (1 of 1872).”

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

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

admitted in evidence uninhibited by the rules of relevancy and

admissibility prescribed by the Evidence Act, provided the Family

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

effective resolution of the dispute in the proceeding. Understood in

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

seems to convey the legislative intention that Family Court has

absolute freedom to depart from adopting the sophisticated and strict

rules of relevancy and admissibility applicable to the regular civil

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

Evidence Act helps the Family Courts prevent valuable information

and materials necessary for effective adjudication of disputes from

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

relevancy and admissibility in the Evidence Act ought to be read

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

inconsistency emerging between the provisions of these two Acts,

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

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

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

produced before the Family Court, Thalassery is admissible in

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

Section 65-B(4) of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

OP (FC).No. 513 of 2018

PRAMOD E.K. Vs LOUNA V.C.

Coram:

C.K.ABDUL REHIM

&

T.V.ANILKUMAR, JJ.

Dated:14th day of January 2019

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

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Whether non production of certificate U/S 65B of Evidence Act alongwith CDR is curable defect?

We are in agreement with the aforesaid findings. Learned Counsel for the Appellants rightly argued that non-production of the certificate Under Section 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana MANU/SC/0835/2017 : (2017) 8 SCC 570, which can be traced to the following discussion in the said judgment:

32. 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 65-B(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 Code of Criminal Procedure, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 579 and 574 of 2016

Decided On: 18.04.2018

 Union of India (UOI)  Vs.  Ravindra V. Desai

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: AIR 2018 SC 2754.

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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 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

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Landmark judgment on appreciation of electronic evidence in cheque dishonour case

Be that as it may, the issue in the case in hand was whether the Complainant had proved that the cheques were issued by the Accused towards legally enforceable debt or liability. In this regard the Complainant-company has relied upon the statement of account of account at Exh.'FF', a print out of electronic records allegedly maintained by the Complainant-company in the course of business. In the case of Anwar P.V. Vs. P.K. Basheer and Ors. Apex Court has held as under:

"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Section 59 and 65A and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.

The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."

66. In the instant case, the accused had challenged the admissibility of the statement at Exh. 'FF' on the ground that CW2 was not the author of the said statement. He had not signed the said statement and had no knowledge about the entries made in the said statement. It was further alleged that CW3, who had issued the certificate purported to be under sub-section 4 of section 65B, was not competent to issue such certificate. It was further stated that the said certificate did not contain the details required under clauses (a) to (c) of sub-section 4 of section 65B of the Indian Evidence Act.

67. The learned Magistrate while rejecting contentions has held that Section 65B of the Indian Evidence Act nowhere mandates that the certificate is required to be issued only by the person having access to the system. The learned Magistrate has further held that since CW3 was working as Head IT, it can be gathered and concluded that he had control and lawful access over the entire computer system of the Complainant-company. The learned Sessions Judge has not addressed the question as to whether CW3 was competent to issue the certificate as envisaged under Sub-Section 4 of Section 65B of the Indian Evidence Act. Nevertheless, the learned Sessions Judge has relied upon the evidence of CW2 and CW3 by holding that the accused have not impeached the credibility of CW2 and that they have not refuted the genuineness of the certificate issued by CW3.

68. It is pertinent to note that, CW1-Vimukt Nayak, the power of attorney of the Complainant Company had neither produced the statement of account nor made any reference to such statement of account. The accused were therefore precluded from cross examining accused No. 1 and eliciting such material as to refute the genuineness of the statement at Exh. 'FF'. A perusal of the certificate shows that the same was signed and certified by Kailash Varodiya and Dattaram Patarpenkar. The Complainant-company has neither examined said Kailash Varodiya and Dattaram Fatarpenkar nor produced any material to show that said Kailash and Dattaram were authorised to sign the said statement on behalf of the Complainant-company.

69. It may be mentioned here that section 65B only relates to the admissibility of electronic records. This amended provision prescribes the mode for proof of contents of electronic records. The very admissibility of electronic records depends upon the satisfaction of the conditions stipulated in the section. Sub-section 4 of section 65B provides that when a statement has to be produced in evidence, it should be accompanied by a certificate containing the details specified in clauses (a) to (c) of Sub-section 4 of Section 65B. This certificate must be signed by a person "occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities".

70. CW2, who has produced the statement at Ex. FF, has admitted that he had not obtained the print out at Ex. 'FF. CW2 had not signed the said statement and had admittedly no knowledge of the transaction. CW2 had not produced any document to prove that the said statement was a print out of a computer/electronic records maintained by the Company in the ordinary course of business. It is also to be noted that the statement at EX. FF was not accompanied by a certificate as contemplated under sub-section 4 of section 65B of the Indian Evidence Act. The statement at Exh.'FF' was therefore not admissible in the absence of such certificate.

71. The Complainant-company had tried to rectify this defect by examining CW3 who was examined at the stage of final hearing. He has produced the certificate purported to be under sub-section 4 of section 65B of the Indian Evidence Act. No reason has been assigned by the Complainant-company for not producing the said certificate alongwith the statement at Exh.'FF' and this fact leads to an inference that the said certificate was created subsequently to fill in the lacuna in the evidence of CW2.

72. Be that as it may, CW3 has deposed that he is looking after the maintenance of computer system of the Complainant-company since 2008-2009. He has deposed that apart from the maintenance work, he is not allotted any other work relating to information and technology. He has deposed that accounts of the Complainant-company are maintained and prepared by Operation Department and Client Relationship Department. He has admitted that he has not prepared statements of any of the clients of the Complainant-company. He has stated that he has no personal knowledge about the transaction. He has further stated that he had not personally verified the balance, which was due and payable by the accused to the complainant company as on 16.3.2011. He has stated that employee of the Complainant-company used to prepare and enter the statement at the user terminal and the same was saved in the main server. He has stated that he does not know when such data was entered in the user terminal or as to how many persons had entered such data in user terminal. He has stated that he is not a system administrator and that apart from system administrator no other person has access to the server. He has deposed that he had not retrieved the information from the main server in respect of the present transaction.

73. A conjoint reading of evidence of CW2 and CW3 reveals that both these witnesses had no personal knowledge about the transaction. They were not entrusted with the duty of maintaining the records of the company. They had not prepared the statement of account and had no knowledge about the genuineness of the entries reflected in Exh.'FF'. The evidence of CW3 clearly indicates that apart from the system administrator no other person had access to the server. His evidence does not indicate that he was involved in the management of the relevant activities. The evidence of CW3 therefore, does not indicate that he was occupying an official position in relation to the operation of the device and was not entrusted with a duty of the management of the relevant activities. In short, the Complainant Company had failed to prove the source and authenticity of the statement as well as the competency of CW3 to issue the certificate. In this fact situation, the findings of both the courts below are totally erroneous and contrary to the evidence on record and the relevant provisions of law and have thus resulted in miscarriage of justice.

74. It has to be borne in mind that section 65B only relates to the admissibility of electronic records. It authenticates the genuineness of the copy/computer printout and thus absolves the parties from producing the original. This section only makes the computer output admissible on complying with the requirements of the section. It does not prove the actual correctness of the entries and does not dispense with the proof or genuineness of entries made in such electronic records. Furthermore, there is no presumption regarding the genuineness of the entries in electronic records. Hence, it was necessary for the Complainant Company to prove the correctness of the entries. In the instant case, the witnesses examined by the complainant did not have any personal knowledge regarding the entries made in the said statement at Exh. 'FF' and were therefore not competent to depose about the correctness of the entries.

75. It is also to be noted that section 34 of the Evidence Act stipulates that the entries in account books regularly kept in course of business are relevant piece of evidence and admissible. The section further states that such entries cannot be the sole basis of fixing liability on any person. In the instant case, apart from statement at Exh. 'FF' the complainant company had not produced any other material to prove that the liability of the accused in respect of the amount specified in the subject cheques. Hence, the accused could not have been held guilty of the offence solely on the basis of the said statement.

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 432 of 2015

Decided On: 14.03.2017

 Jaimin Jewelery Exports Pvt. Ltd. and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Anuja Prabhudessai, J.

Citation: 2017 ALL MR (Cri) 2994

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