Electronic Evidence Chandigarh

Electronic Evidence – Chandigarh

We are not impressed by an argument that the order in Shafhi Mohammad’s case is not the law laid down under Article 141 of the Constitution of India. We may now, therefore, summarize the law laid down by the Apex Court in the aforesaid decisions in respect of admissibility of electronic evidence :

(1) The purpose of the provisions of Sections 5965-A and 65-B of the Evidence Act, is to sanctify secondary evidence. (Para 14 of Anvar’s case ).

(2) Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, the question would arise as to genuineness thereof and in that situation, resort can be made to Section 45-A – Opinion of Examiner of apeal254.15 with connected appeals.odt Electronic Evidence. (Para 17 of Anvar’s case ).

(3) The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence, if requirements under Section 65-B are not complied with. (Para 18 of Anvar’s case ).

(4) An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B of the Evidence Act are satisfied. In the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B of the said Act, obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record is inadmissible. (Para 22 of Anvar’s case ).

(5) The view taken by the Apex Court in Navjot Sandhu’s case that even if the certificate containing the details in sub-section (4) of Section 65-B of the Evidence Act is not filed, that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65 of the said Act, stands overruled and is declared to be no longer a good law. (Para 22 of Anvar’s case ).

apeal254.15 with connected appeals.odt (6) If an electronic record as such used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance of the conditions in Section 65-B of the said Act. (Para 24 of Anvar’s case ).

(7) The objection that the electronic record tendered in evidence is inadmissible in the absence of a certificate, as required by Section 65-B(4) of the Evidence Act pertains to the mode or method of proof which is procedural, and objections, if not taken at the trial, cannot be permitted to be taken at the appellate stage.

(Paras 29 and 32 of Anvar’s case ).

(8) Withholding of the best evidence in the form of electronic record clinching the issue, raises a serious doubt about the case of the prosecution and an adverse inference against the prosecution under Section 114, illustration (g) of the Evidence Act can be drawn that the prosecution withheld the same, as it would be unfavourable to them had it been produced. (Paras 21 and 28 of Tomaso Bruno’s case ).

(9) The applicability of procedural requirement under Section 65-B of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is apeal254.15 with connected appeals.odt 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. The requirement is not always mandatory. (Para 14 of Shafhi Mohammad’s case).

(10) The applicability of requirement of certificate being procedural can be relaxed by Court whenever interest of justice so justifies. (Para 15 of Shafhi Mohammad’s case ).

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