Certificate under S.65B Evidence Act Not Required to Confront Witness with Electronic Record During Cross-Examination if They Admit Its Contents: Punjab & Haryana High Court

High Court Clarifies: No S.65B Certificate Needed to Confront Witness with Electronic Evidence They Admit To

Chandigarh, Punjab – In a significant ruling on the procedural aspects of electronic evidence, the Punjab and Haryana High Court has held that a certificate under Section 65B of the Indian Evidence Act, 1872, is not a prerequisite for confronting a witness with an electronic record during cross-examination, especially when the witness does not dispute its contents.

The judgment, delivered by Justice Tejinder Singh Dhindsa , sets aside a trial court order that had disallowed the use of Compact Discs (CDs) for cross-examination due to the absence of the mandatory certificate.

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Background of the Dispute

The case stems from a civil suit filed by the Desh Bhagat Yadgar Committee against the Shromani Akali Dal (Badal). The suit sought a declaration of ownership over certain land, alleging that revenue entries favoring the Akali Dal were based on forged and manipulated documents.

During the trial, the defendant (Akali Dal) sought to cross-examine a key plaintiff witness, Baba Dayal Singh (PW-7), using CDs containing video recordings of two functions from 2005. These events were allegedly related to the appointment of the defendant's head. The defendant argued that confronting the witness with these recordings was crucial to challenge the plaintiff's claims.

However, the Civil Judge in Jalandhar Cantt rejected the application, insisting that the CDs could not be used without a certificate under Section 65B of the Evidence Act, which authenticates electronic evidence.

Arguments Before the High Court

The petitioner, Shromani Akali Dal (Badal), argued that the trial court's insistence on a certificate at this stage was erroneous. Their counsel contended that since the witness had already admitted in his testimony that the functions took place and were video-recorded, the primary purpose of the certificate—to prove authenticity—was less critical. The objective was simply to confront the witness with the contents of the recording, which he had already acknowledged.

Conversely, the respondent argued that the law laid down by the Supreme Court in landmark cases like Anvar P.V. vs. P.K. Basheer and Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal makes the Section 65B certificate a mandatory condition for the admissibility of electronic evidence. They maintained that without this certificate, the CDs were inadmissible and could not be put to the witness.

Court's Analysis: Distinguishing Admissibility from Confrontation

Justice Dhindsa, after a thorough review of statutory provisions and Supreme Court precedents, drew a crucial distinction between the stage of admitting electronic evidence and the act of confronting a witness during cross-examination.

The Court observed that while Section 65B governs the admissibility of electronic records as evidence, Section 145 of the Evidence Act allows a witness to be cross-examined on previous statements made in writing without the writing being shown to him or being proved.

The judgment highlighted key principles:

• No Bar on Confrontation: The procedural requirement of a Section 65B certificate for admissibility does not create a bar on putting the electronic record to a witness during cross-examination to contradict them.
• Witness Admission is Key: If a witness admits that the functions recorded in the CD took place, the party seeking to use the CD cannot be prevented from confronting them with its contents.
• Certificate Can Be Furnished Later: The certificate under Section 65B is a procedural requirement that can be fulfilled at a later stage when the party formally seeks to tender the electronic record as evidence.

"In the considered opinion of this Court, such videos cannot be permitted to be put to a witness without furnishing a certificate in accordance with the provisions of Section 65B of the Evidence Act," the Court stated, clarifying the conditions for their use. It was emphasized that denying the opportunity for confrontation would allow a witness to evade scrutiny on their own admissions.

Final Decision and Implications

The High Court found the trial court's order to be legally unsustainable and set it aside. It permitted the petitioner to confront the plaintiff's witnesses with the CDs during cross-examination.

This ruling provides significant clarity for trial lawyers on handling electronic evidence. It affirms that while the Section 65B certificate remains indispensable for formally admitting electronic records into evidence, its absence should not be used to block a party's right to effectively cross-examine a witness on the contents of such records, particularly when the witness does not deny the underlying events.