Person not possession of device not required to give certificate as per 65(b) of evidence act: Supreme Court 2018

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 Petitioner(s)
VERSUS
THE STATE OF HIMACHAL PRADESH Respondent(s)
WITH
SLP(Crl) No. 9431/2011
AND
SLP(Crl) No(S). 9631-9634/2012
O R D E R
SLP(Crl.)No.2302 of 2017 :
(1) One of the questions which arose in the course of
consideration of the matter was whether videography of the
scene of crime or scene of recovery during investigation
should be necessary to inspire confidence in the evidence
collected.
(2) In Order dated 25th April, 2017 statement of Mr. A.N.S.
Nadkarni, learned Additional Solicitor General is recorded to
the effect that videography will help the investigation and
was being successfully used in other countries. He referred
to the perceived benefits of “Body-Worn Cameras” in the United
States of America and the United Kingdom. Body-worn cameras
act as deterrent against anti-social behaviour and is also a
tool to collect the evidence. It was submitted that new
technological device for collection of evidence are order of
the day. He also referred to the Field Officers’ Handbook by
the Narcotics Control Bureau, Ministry of Home Affairs,
Government of India. Reference was also made to Section 54-A
of the Cr.P.C. providing for videography of the identification
process and proviso to Section 164(1) Cr.P.C. providing for
audio video recording of confession or statement under the
said provision.
(3) Thereafter, it was noted in the Order dated 12th October,
2017, that the matter was discussed by the Union Home
Secretary with the Chief Secretaries of the States in which a
decision was taken to constitute a Committee of Experts (COE)
to facilitate and prepare a road-map for use of videography in
the crime scene and to propose a Standard Operating Procedure
(SOP). However, an apprehension was expressed about its
implementation on account of scarcity of funds, issues of
securing and storage of data and admissibility of evidence.
We noted the suggestion that still-photography may be useful
on account of higher resolution for forensic analysis.
Digital cameras can be placed on a mount on a tripod which may
enable rotation and tilting. Secured portals may be
established by which the Investigation Officer can e-mail
photograph(s) taken at the crime scene. Digital Images can be
retained on State’s server as permanent record.
SLP(Crl.)NO.9431 of 2011:
(1) Since identical question arose for consideration in this
special leave petition as noted in Order dated 12th October,
2017, we have heard learned amicus, Mr. Jayant Bhushan, senior
advocate, Ms. Meenakshi Arora, senior advocate, assisted by
Ms. Ananya Ghosh, Advocate, on the question of admissibility
of electronic record. We have also heard Mr. Yashank Adhyaru,
learned senior counsel, and Ms. Shirin Khajuria, learned
counsel, appearing for Union of India.
(2) An apprehension was expressed on the question of
applicability of conditions under Section 65B(4) of the
Evidence Act to the effect that if a statement was given in
evidence, a certificate was required in terms of the said
provision from a person occupying a responsible position in
relation to operation of the relevant device or the management
of relevant activities. It was submitted that if the
electronic evidence was relevant and produced by a person who
was not in custody of the device from which the electronic
document was generated, requirement of such certificate could
not be mandatory. It was submitted that Section 65B of the
Evidence Act was a procedural provision to prove relevant
admissible evidence and was intended to supplement the law on
the point by declaring that any information in an electronic
record, covered by the said provision, was to be deemed to be
a document and admissible in any proceedings without further
proof of the original. This provision could not be read in
derogation of the existing law on admissibility of electronic
evidence.
(3) We have been taken through certain decisions which may be
referred to. In Ram Singh and Others v. Col. Ram Singh, 1985
(Supp) SCC 611, a Three-Judge Bench considered the said issue.
English Judgments in R. v. Maqsud Ali, (1965) 2 All ER 464,
and R. v. Robson, (1972) 2 ALL ER 699, and American Law as
noted in American Jurisprudence 2d (Vol.29) page 494, were
cited with approval to the effect that it will be wrong to
deny to the law of evidence advantages to be gained by new
techniques and new devices, provided the accuracy of the
recording can be proved. Such evidence should always be
regarded with some caution and assessed in the light of all
the circumstances of each case. Electronic evidence was held
to be admissible subject to safeguards adopted by the Court
about the authenticity of the same. In the case of
tape-recording it was observed that voice of the speaker must
be duly identified, accuracy of the statement was required to
be proved by the maker of the record, possibility of tampering
was required to be ruled out. Reliability of the piece of
evidence is certainly a matter to be determined in the facts
and circumstances of a fact situation. However, threshold
admissibility of an electronic evidence cannot be ruled out on
any technicality if the same was relevant.
(4) In Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010)
4 SCC 329, the same principle was reiterated. This Court
observed that new techniques and devices are order of the day.
Though such devices are susceptible to tampering, no
exhaustive rule could be laid down by which the admission of
such evidence may be judged. Standard of proof of its
authenticity and accuracy has to be more stringent than other
documentary evidence.
(5) In Tomaso Bruno and Anr. v. State of Uttar Pradesh,
(2015) 7 SCC 178, a Three-Judge Bench observed that
advancement of information technology and scientific temper
must pervade the method of investigation. Electronic evidence
was relevant to establish facts. Scientific and electronic
evidence can be a great help to an investigating agency.
Reference was made to the decisions of this
Court in Mohd.  Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 and
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
(6) We may, however, also refer to judgment of this Court in
Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473,
delivered by a Three-Judge Bench. In the said judgment in
para 24 it was observed that electronic evidence by way of
primary evidence was covered by Section 62 of the Evidence Act
to which procedure of Section 65B of the Evidence Act was not
admissible. However, for the secondary evidence, procedure of
Section 65B of the Evidence Act was required to be followed
and a contrary view taken in Navjot Sandh (supra) that
secondary evidence of electronic record could be covered under
Sections 63 and 65 of the Evidence Act, was not correct.
There are, however, observations in para 14 to the effect that
electronic record can be proved only as per Section 65B of the
Evidence Act.
(7) 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.”
(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.


(13) To consider the remaining aspects, including
finalisation of the road-map for use of the videography in the
crime scene and the Standard Operating Procedure (SOP), we
adjourn the matter to 13th February, 2018.
(14) We place on record our deep appreciation for the
valuable assistance rendered by learned amicus, Mr. Jayant
Bhushan, senior advocate, Ms. Meenakshi Arora, senior
advocate, who was assisted by Ms. Ananya Ghosh, Advocate, as
well as by Mr. Yashank Adhyaru, learned senior counsel, and
10
Ms. Shirin Khajuria, learned counsel, appearing for Union of
India.
……………………..J.
(ADARSH KUMAR GOEL)
……………………..J.
(UDAY UMESH LALIT)
New Delhi,
January 30, 2018.