Electronic Evidences accepted: Supreme court said 02/12/2019 – Posted in: Daily News

Supreme Court Judgement on Electronic Evidences

For: Preliminary & Mains

Topics covered: 

  • About the recent judgement
  • Section 65 of the Indian Evidence Act

News Flash

In a recent Supreme court verdict, the content of memory card, pen-drive is documentary evidence and same shall be furnished to an accused under the mandate of Section 207 of the Code of Criminal Procedure Code (CrPC).

This judgment is given by a bench of Justices AM Khanwilkar and Dinesh Maheshwari in the case concerning Malayalam film actor Dileep, who is one of the accused in a sexual assault case.

 

The pertinent question of whether the memory card would be considered as a “material object” or “document” was posed before the Court in this case.

 

What

The top court’s clarification on section 65B of Indian Evidence Act, which deals with the admissibility of electronic evidence in court proceedings, will have an impact on criminal trials, where an increasing number of call details records, CCTV footage, mobile video recordings and CDs are being relied upon.

 

Interpreting section 65B(4) of the Evidence Act, a bench of Justices A K Goel and U U Lalit said the provision should be applied only when such electronic evidence is presented by a person who is in a position to produce such certificate.

 

Section 65(B) of the Indian Evidence Act says that electronic records need to be certified by a person occupying a responsible official position for being admissible as evidence in any court proceedings.

 

The top court, while examining the issue of video recording of the crime scene in the country, dealt with the question if electronic evidence can be admissible for reliance in judicial proceedings.

 

It said that if a person is not in a position to produce such certificate the provision of 65B should not be applied.

 

The bench said: “If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness. Thus, requirement of certificate under Section 65B(4) is not always mandatory”.

 

The top court considered the views of four senior advocates, who were appointed as amicus curiae to assist in interpreting the provision of 65B, to enable admissibility of electronic records.

 

The Bench said: “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 supreme court said, the applicability of requirement of certificate being procedural “can be relaxed by court wherever interest of justice so justifies”.

 

Section 65 B of Evidence Act

Section 65B – Admissibility of Electronic Records

Sec. 65B(1): Notwithstanding anything contained in this Act, any information contained in an electronic record –

  • which is printed on a paper, stored, recorded or
  • copied in optical or magnetic media
  • produced by a computer

# shall be deemed to be also a document, if the conditions mentioned in this section are satisfied

  • in relation to the information and
  • computer in question and

# shall be admissible in any proceedings, without further proof or production of the original,

# as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

 

Sec. 65B(2)

# The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;

# Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer;

# The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;

# Information reproduced is such as is fed into computer in the ordinary course of activity.

 

Sec.65 B(3)

The following computers shall constitute as single computer-

# by a combination of computers operating over that period; or

# by different computers operating in succession over that period; or

# by different combinations of computers operating in succession over that period; or

# in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

 

Sec. 65B(4)

Regarding the person who can issue the certificate and contents of certificate, it provides the certificate doing any of the following things:

  • identifying the electronic record containing the statement and describing the manner in which it was produced;
  • giving the particulars of device
  • dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

 

Related Judgements

  • Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported as AIR 1987 SC 1454
  • See ‘Principles of Statutory Interpretation, 9th Edition by Justice G.P. Singh – Chapter V, Synopsis IV at 
pages 318 & 319
  • Union of India and Anr., v. G.M. Kokil and Ors. [(1984)SCR196]
  • Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986)3SCR866]
  • Anvar P.V. Versus P.K. Basheer & OrsA [MANU/SC/0834/2014]
  • Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [MANU/SC/0040/2015]
  • Ankur Chawla v. CBI [MANU/DE/2923/2014]
  • Abdul Rahaman Kunji v. The State of West Bengal [MANU/WB/0828/2014]
  • Jagdeo Singh v. The State and Ors. [MANU/DE/0376/2015]
  • Dharambir Vs. CBI, [148(2008)DLT289]
  • State Vs. Mohd. Afzal and Ors. [MANU/DE/1026/2003]

 

Click here for

The Indian Evidence Act, 1872

 

Section 207 of the Code of Criminal Procedure Code (CrPC)

Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

 

Source: ET

 

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