2018 Supreme(P&H) 2623

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
CRM-M-37435 of 2018 (O&M)
Jatinder Pal Singh
v.
Krishan Kishore Bajaj
{Decided on 29/10/2018}

Electronic Record – Certificate of Authenticity – Unless the authenticity of the electronic record is pleaded and established by the party seeking to lead in evidence the electronic record, the same cannot be permitted by the Court.
Electronic Record – Section 65-B of Evidence Act insists for certificate qua the authenticity of electronic evidence; without making any distinction of ‘Primary’ or ‘Secondary’ evidence, unlike the other documentary evidence.
Electronic Record – Section 65-B of the Evidence Act has laid down a strict test to ascertain the authenticity of the creation or the recording of the information – Therefore, this provision regarding their admissibility has to be mandatorily followed

Headnote:(A) Evidence Act, 1872, S.65-B – Electronic Record – Certificate of Authenticity – Dishonour of Cheque – Call Records – Voice samples – Conversation on mobile phones – Petitioner (accused) tendered pen drive and compact disc in evidence with regard to conversation recorded by him with complainant – Pleading and arguments of petitioner are silent qua the authenticity of the information as contained in the pen drive and CD – Hence, information contained in the pen drive and CD itself found to be non authentic – Therefore, application for directing respondent to give voice samples for being compared with the voice as contained in the pen drive and the CD held to be rightly dismissed – Negotiable Instruments Act, 1881, S.138 – Criminal Procedure Code, 1973, S.311. (Para 20)

       The present case, the petitioner had not even disclosed in his application as to when the information; as contained in Pen Drive and the Compact Disc, was recorded. It is also not disclosed as to what was the original instrument/ computer/device through which the information as contained in Pen Drive and CD was recorded. Even this is not disclosed as to what was the activity, which was being regularly carried out; during regular operation of which; the respondent had made the admitting statement; as contained in the Pen Drive and the CD sought to be produced on record by the petitioner. Even during the arguments of the present petition, the petitioner has not been able to disclose as to when and through which instrument, the alleged information contained in Pen Drive and CD was recorded. Therefore, the pleadings and the arguments of the petitioner are singularly silent qua the authenticity of the information as contained in the Pen Drive and the CD. As a result, the statement of the respondent that the information is totally unauthentic; finds acceptance with this Court. Since there is nothing on record to show the authenticity of the information as contained in Pen Drive and CD, the trial Court has rightly declined the same to take into consideration. Since the information as contained in the Pen Drive and CD itself has been found to be non-authentic by the trial Court, therefore, there is no question of the trial Court directing the respondent to give his voice samples; for being compared with the voice as contained in the Pen Drive and the CD. Hence, the trial Court has rightly dismissed the application filed by the petitioner.

        (B) Evidence Act, 1872, S.65-B – Electronic Record – Certificate of Authenticity – Any reproduction of a computer record, ‘primary’ or ‘secondary’, cannot be led in evidence in the form of Pen Drive or the CD unless the authenticity of the device through which it is lawfully recorded and the authenticity qua the feeding of data in normal course of a regular activity of computer operation is claimed and established before the Court; by producing the certificate as prescribed under Section 65-B(4) of Indian Evidence Act. (Para 18)

       (C) Evidence Act, 1872, S.65-B – Electronic Record – Certificate of Authenticity – Unless the authenticity of the electronic record is pleaded and established by the party seeking to lead in evidence the electronic record, the same cannot be permitted by the Court. (Para 19)

       (D) Evidence Act, 1872, S.65-B – Electronic Record – Conventional categorization of evidence in ‘Primary’ and ‘Secondary’ evidence does not strictly hold good in case of electronic record or computer output – Hence, Section 65-B of Evidence Act insists for certificate qua the authenticity of electronic evidence; without making any distinction of `Primary’ or `Secondary’ evidence, unlike the other documentary evidence. (Para 15)

       What is permissible to be led in evidence under Section 65-A and 65-B of Evidence Act is the computer output of Electronic Information. As mentioned above, the computer output is the retrieval of the electronic information, which is otherwise readable only by a machine, into an output which is recognisable by human senses, like, text print-out on a page, video on a screen or audio played on a device. Before being retrieved through an output device, like printer, screen or audio device, the electronic information is in existence and is stored in the form of processed digital codes, created through the computer processor. The same piece of machine readable information can be retrieved in different manner and different forms on different types of output devices. For example, a page of information typed as electronic information in M.S. Word can be seen on screen; as well as; can be printed out on a sheet of paper. Therefore, the original electronic information is the information which is present in the forms of digital codes stored on default memory device. The computer output of the same is only reproduction of the same in different formats. Therefore, it is only this default memory device which contains the ‘Primary’ information created by the computer processor. Any copy of this on any other device is only a ‘Secondary’ information or the secondary evidence in legal parlence. However, what is normally sought to be produced before the Court in evidence is either the ‘output’ or the ‘copy’ of the original information stored as digital codes. Therefore, the conventional catagorization of evidence in ‘Primary’ and ‘Secondary’ evidence does not strictly holds good in case of electronic record or the computer output. Hence, Section 65-B of Evidence Act insists for certificate qua the authenticity of electronic evidence; without making any distinction of ‘Primary’ or ‘Secondary’ evidence, unlike the other documentary evidence.

       (E) Evidence Act, 1872, S.65-B – Electronic Evidence – Certificate of Authenticity – The digital information has to be treated with due suspicion and more stringent test has to be applied to it than the ordinary evidence – Hence, the authenticity of the recording of the information is as important as the content of the information itself, lest the Court should be taken for a ride by unscrupulous experts in the field of the fabrication of the information – Accordingly, the Section 65-B of the Indian Evidence Act has laid down a strict test to ascertain the authenticity of the creation or the recording of the information – Therefore, this provision regarding their admissibility has to be mandatorily followed. (Para 14)

       Since, the electronic information record is comprised in digital codes formats, therefore, by using appropriate softwares & hardwares, virtually any information can be created by arranging those digits in that particular manner, so as to create the digital information; containing therein a linguistic sentence or a sentence of conversation in audio form. Once an information is created, its mirror image can be used by a person claiming it to be the copy of the original. Still further, by passing the so created information through the appropriate filters of softwares, data or the filters of pitch and frequency, which again would be in the digital form, voice of anybody can be re-created by the experts of the computer field. Hence, since the entire computer information is in the form of precise digital form only, therefore, the same can be created as ‘original’ also with the same precision, even without the risk of possibility of the fabrication being easily detected. Its only the question of as to what is the level of expert who is creating the digital information.

       (F) Evidence Act, 1872, S.65-B – Electronic Record – Certificate of Authenticity – Besides the relevance of the contents of the information, the authenticity of the recording device, its proper functioning and the information being correct output of the recording are equally important corner stones; for permitting any electronic evidence to be led in evidence before the Court. (Para 16)

       Although there are certain judgments, including from the Hon’ble Supreme Court, to say that in case the electronic evidence is produced by a party in the form of primary evidence then the certificate as required under Section 65-B(4) of Indian Evidence Act may not be required, however, those judgments pertained to the electro magnetic recording in the form of audio tapes. In those cases, the original audio tapes were sought to be produced before the Court. However, the same analogy may be hard to be applied in case of computer output; without insisting for authenticity of and source of recording.