Electronic Evidence – Compact disc containing CCTV footage – In the absence of the source from which CDs has originated i.e. the DVR, the data recorded in the CD, may not be admissible

Mr. Gurvinder Singh Gill, J. (Oral):- By way of filing this revision petition, the petitioner assails order dated 28.1.2019 passed by learned Additional Sessions Judge, Moga, whereby an application filed by him for sending the exhibited CDs to Forensic Science Laboratory to prove the genuineness/authenticity of the same, has been declined.

2. The CDs in question are stated to be containing CCTV footage allegedly recorded from camera installed outside the house of the petitioner. The trial Court has, however, declined the request mainly on the ground that the original digital video recorder, which is the primary source of recording from CCTV camera, has not been brought on record and nor is stated to be in possession of the accused.

3. I have heard the learned counsel for the petitioner.

4. The learned counsel for the petitioner has submitted that infact the digital video recorder had been taken into possession by the police and the entire recording made therein has been washed off and that in these circumstances, the petitioner is unable to produce the digital video recorder.

5. It is well established that any kind of digital evidence in the shape of a data retrieved from a computer/electronic equipment can only be admitted if it satisfies the conditions laid down in Section 65-B of Indian Evidence Act, which for the sake of ready reference read as follows:-

“65-B. Admissibility of electronic records:-

(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 (hereinafter referred to as the computer output) 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.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether:-

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) 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, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references