2020 Supreme(SC) 446

SUPREME COURT OF INDIA
R. F. Nariman, S. Ravindra Bhat, V. Ramasubramanian, JJ.
ARJUN PANDITRAO KHOTKAR – Appellant
Versus
KAILASH KUSHANRAO GORANTYAL AND ORS. – Respondents
Civil Appeal Nos. 20825-20826 of 2017 Civil Appeal No. 2407 of 2018 Civil Appeal No. 3696 of 2018
Decided on : 14-07-2020

IMPORTANT POINTS
(1) Certificate required under Section 65B(4) of Evidence Act is a condition precedent to admissibility of evidence by way of electronic record.
(2) In a fact circumstance where requisite certificate has been applied for from person or authority concerned, and person or authority either refuses to give such certificate, or does not reply to such demand, party asking for such certificate can apply to Court for its production under provisions aforementioned of Evidence Act, CPC or Cr.P.C.

Headnote:

Per R.F. Nariman, J.

(A) Indian Evidence Act, 1872 – Section 65B – Electronic evidence – Admissibility of CDs in evidence in election petition – Any information that is 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 a document, and shall be admissible in any proceedings without further proof of production of original, as evidence of contents of original or of any facts stated therein of which direct evidence would be admissible – Once deeming fiction is given effect by fulfilment of conditions mentioned in the Section, “deemed document” now becomes admissible in evidence without further proof or production of original as evidence of any contents of original, or of any fact stated therein of which direct evidence would be admissible – Section 65B differentiates between original information contained in “computer” itself and copies made therefrom, former being primary evidence and latter being secondary evidence – An application can always be made to a Judge for production of such a certificate from requisite person under Section 65B(4) in cases in which such person refuses to give it. (Paras 21, 30, 31 and 43)

(B) Indian Evidence Act, 1872 – Section 65B – Information Technology Act, 2000 – Section 2 – Representation of the People Act, 1951 – Sections 80 and 81 – Electronic evidence – Admissibility of CDs in evidence in election petition – Section 65B does not speak of stage at which such certificate must be furnished to Court – In a fact circumstance where requisite certificate has been applied for from person or authority concerned, and person or authority either refuses to give such certificate, or does not reply to such demand, party asking for such certificate can apply to Court for its production under provisions aforementioned of Evidence Act, CPC or Cr.P.C. – Once such application is made to Court and Court then orders or directs that requisite certificate be produced by a person to whom it sends a summons to produce such certificate, party asking for certificate has done all that he can possibly do to obtain requisite certificate – In cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by concerned person, Judge conducting trial must summon person/persons referred to in Section 65B(4) of Evidence Act, and require that such certificate be given by such person/persons – Though Section 65B(4) is mandatory, yet, on facts of this case, Respondents, having done everything possible to obtain necessary certificate, which was to be given by a third-party over whom Respondents had no control, must be relieved of mandatory obligation contained in said sub-section. (Paras 45, 49 and 50)

(C) Maxim – Lex non cogit ad impossibilia i.e. law does not demand impossible – Impotentia excusat legem i.e. when there is a disability that makes it impossible to obey law, alleged disobedience of law is excused. (Para 45)

(D) Criminal Procedure Code, 1973 – Section 207 – Indian Evidence Act, 1872 – Section 65B – Supply of documents to accused – Stage of admitting documentary evidence in a criminal trial is filing of charge-sheet – When a criminal court summons accused to stand trial, copies of all documents which are entered in charge-sheet/final report have to be given to accused – Electronic evidence, i.e. computer output, has to be furnished at the latest before trial begins – This gives accused a fair chance to prepare and defend charges levelled against him during trial – General principle in criminal proceedings is to supply to accused all documents that prosecution seeks to rely upon before commencement of trial – Requirement of such full disclosure is an extremely valuable right and an essential feature of right to a fair trial as it enables accused to prepare for trial before its commencement – Prosecution ought not to be allowed to fill up any lacunae during trial – Exercise of power by courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to accused – Balancing exercise in respect of rights of parties has to be carried out by court, in examining any application by prosecution under Sections 91 or 311 of Cr.P.C. or Section 165 of Evidence Act – Depending on facts of each case, and Court exercising discretion after seeing that accused is not prejudiced by want of a fair trial, Court may in appropriate cases allow prosecution to produce such certificate at a later point in time – If it is accused who desires to produce requisite certificate as part of his defence, this again will depend upon justice of case - discretion to be exercised by Court in accordance with law. (Paras 52, 53 and 54)

Per V. Ramasubramanian,J. (Assenting View)

Indian Evidence Act, 1872 – Sections 65B and 136 – Electronic evidence – Admissibility of CDs in evidence in election petition – Whatever is relevant may not always be admissible, if law imposes certain conditions--A document, whose contents are relevant, may not be admissible, if it is a document requiring stamping and registration, but had not been duly stamped and registered--If a fact is sought to be proved through contents of an electronic record (or information contained in an electronic record), Judge is first required to see if it is relevant, if first part of Section 136 is taken to be applicable--Sections 65A and 65B, if read together, mix-up both proof and admissibility, but not talk about relevancy--Major jurisdictions of world have come to terms with change of times and development of technology and fine-tuned their legislations--It is need of hour that there is a relook at Section 65B of Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with law swinging from one extreme to other in past 15 years. (Paras 3, 7 and 46)

Facts of the case:

These Civil Appeals have been referred to a Bench of three honourable Judges of this Court by a Division Bench reference order dated 26.07.2019, dealing with the interpretation of Section 65B of the Indian Evidence Act, 1872 by two judgments of this Court. In the reference order, after quoting from Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength.

Findings of Court:

Appropriate rules and directions should be framed in exercise of Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.

Result : Appeals dismissed with costs.