By Vijay Pal Dalmia,
Supreme Court of India and High Court of Delhi
Partner Vaish Associates Advocates
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The Supreme Court of India, in a path breaking dynamic judgment, ( Shafhi Mohammad Vs. The State Of Himachal Pradesh SLP (Crl.)No.2302 of 2017)1, has rationalized the law relating to the admissibility of the electronic evidence particularly in view of the provision of Sec. 65B of the Indian Evidence Act. Section 54-A of the Cr.P.C. provide for videography of the identification process and proviso to Section 164(1) Cr.P.C. provide for audio video recording of confession or statement under the said provision.
In Ram Singh and Others v. Col. Ram Singh, 1985 (Supp) SCC 611, a Three-Judge Bench considered the issue of the admissibility of the electronic evidence and held 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.
The Supreme Court also referred to the case of Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329, and 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.
Further reference was made to the case of Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015) 7 SCC 178, wherein 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.
In Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench, 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. However, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act, which is not a correct view as per the prevailing legal principles.
It has been held that 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). Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. case the Supreme 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.
Sec. 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. The requirement of certificate under Section 65B(h) is not always mandatory.
The Supreme Court clarified the legal position on the subject on the admissibility of the electronic evidence, holding that 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.
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