A three Judge bench of the Supreme Court on 27th February commenced hearing on a reference matter, referred to it by the Division bench of Justice Ashok Bhushan and Justice Navin Sinha in view of the conflict between Shafhi Mohammad v. State of Himachal Pradesh and Anvar PV v. PK Basheer, on the question “is requirement of certificate under Section 65B(4) of Indian Evidence Act mandatory for production of electronic evidence?” The Three Judge Bench comprising of Justice RF Nariman, Justice S Ravindra Bhat, and Justice V Ramasubramanian commenced hearing on 27th of February, March 3rd is set as the next hearing date.
Decision of SC on the previous cases
In the case of Shafhi Mohammad v. State of Himachal Pradesh the Supreme Court observed, “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 (4) is not always mandatory.”
Here the Court referring to various other judgments observed that, applicability of the procedural requirement under Section 65B(4) of the Indian Evidence Act must be applied only when the electronic evidence is produced by such a person who is in position of producing such certificates being in control of the device and not the opposite party.
However, in an earlier judgment in Anvar PV v. PK Basheer the Three Judge Bench of the Supreme Court observed, “An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”
Key features
- The matter was referred to the larger bench by the two judge bench in view of the conflict between the two previous judgments of the Court in Shafhi Mohammad v. State of Himachal Pradesh and Anvar PV v. PK Basheer.
- The Court is of the opinion that the previous judgments which has held the procedural requirement under Section 65B (4) is not always mandatory, need reconsideration by the Court.
The SC’s stance in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal
The division bench comprising of Justice Ashok Bhushan and Justice Navin Sinha opined that the previous judgments of the Supreme Court where it was said that, the procedural requirements under Section 65B(4) of the Indian Evidence Act of furnishing of certificates in case of electronic records is not always mandatory, needs reconsideration from the Court. The bench thus referred the matter, in view of the conflict between Shafhi Mohammad v. State of Himachal Pradesh and Anvar PV v. PK Basheer, to a larger three judge bench comprising of Justice RF Nariman, Justice S Ravindra Bhat, and Justice V Ramasubramanian.
The division bench thus said, “We are of the considered opinion that in view of Anvar P.V., the pronouncement of this Court in Shafhi Mohammad needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.”
The three Judge bench of the Supreme Court comprising of Justice RF Nariman, Justice S Ravindra Bhat, and Justice V Ramasubramanian, commenced hearing on a reference matter on the question “is requirement of certificate under Section 65B(4) of Indian Evidence Act mandatory for production of electronic evidence?” The next date of hearing is set on March 3rd 2020.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
Reference
1. Arjun PanditraoKhotkar v. Kailash KushanraoGorantyal, civil appeal no(s). 20825-20826 of 2017.
2. Shafhi Mohammad v. State of Himachal Pradesh, SLP (Criminal) no. 2302 of 2017/2 SCC 801 (2018)
3. Anvar PV v. PK Basheer, Civil Appeal no. 4226 of 2012/10 SCC 473 (2014)
