Judgment Summary: Shafi Mohammad vs State of HP on Section 65-B Indian Evidence Act,1872

Before the judgment in Anvar P.V. vs. P.K. Basheer and others AIR 2015 SC 180 (Three Judges Bench) the law laid down in State of NCT Delhi v Navjyot Singh (2005) 11 SCC 600 was being followed, which held that irrespective of the compliance with requirements of Section 65-B, there is no bar in adducing secondary evidence even for electronic records as per Sections 63 and Section 65. The court further held that even if a certificate containing the details as stipulated by sub-section (4) of Section 65-B is not filed, it does not render the evidence inadmissible as secondary evidence under Section 63 and Section 65 can still be adduced.

However, the Supreme Court in Anvar P.V. vs. P.K. Basheer and others AIR 2015 SC 180 overruled the above position. The Court held that for any electronic evidence to be admissible in its secondary form, it is necessary to meet the mandatory requirements of Section 65-B, which includes giving a certificate as per terms of Section 65-B (4), at the time of proving the record and not anytime later, failing which the electronic record will be considered inadmissible.

However, Recently, The position is further clarified by the Hon’ble SC in the case of SHAFHI MOHAMMAD VS STATE OF HIMACHAL PRADESH 2018 SC decided on 30.01.2018 by Hon’ble Bench of Justice A.K. Goel and U.U Lalit, whereby it is held that that if a person is not in a position to produce such certificate the provision of 65B should not be applied. Relevant paras are reproduced below:

“(11) The applicability of procedural requirement under 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 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.”

x