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Shafhi Mohammad Vs. The State of Himachal Pradesh - (Supreme Court) (30 Jan 2018)

Applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies

MANU/SC/0058/2018

Law of Evidence

In instant Special Leave Petition (SLP), question 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. In Order dated 25th April, 2017 statement of 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.

Further, In another SLP, an apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act, 1872 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.

Though in view of Three-Judge Bench judgments in Tomaso Bruno and Anr. v. State of Uttar Pradesh, 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) of Evidence Act.

Sections 65A and 65B of the Evidence Act, cannot be held to be a complete code on the subject. In Anvar P.V. v. P.K. Basheer and Ors., present Court 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.

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.

Accordingly, Supreme Court clarified 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.

Relevant : Anvar P.V. v. P.K. Basheer and Ors. MANU/SC/0834/2014, Tomaso Bruno and Anr. v. State of Uttar Pradesh MANU/SC/0057/2015: (2015) 7 SCC 178

Tags : CRIME SCENE   VIDEOGRAPHY   INVESTIGATION   EVIDENCE  

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