ORDER:

Assailing the order dated 10.12.2018 in Crl.M.P.No.2436 of

2018 in STC.No.35 of 2016, the present Criminal Petition is filed. Whereas, the petitioner/accused has filed an application under Section 45C of Evidence Act, the said application was dismissed by the learned V Additional Junior Civil Judge, Tirupati for not producing 65B certificate and rejected the application filed by the petitioner/accused relying on the judgment of Anvar P.V. Vs. P.K.Basheer1, wherein the Hon’ble Apex Court held that secondary evidence of electronic record sought to be given cannot be admitted in the absence of certificate as specified in

65-B(4) of Evidence Act.

Proof of electronic record is a special provisions introduced by the Information Technology Act, amending various provisions under the Evidence Act. Section 65 read with Section 59 and 65A as special provisions as to evidence relating to electronic record, shall be governed by the procedure prescribed under Section 65B of the Evidence Act to prove the contents of

1 2014(10) SCC 473

electronic records. Section 59 is regarding proof of facts by oral evidence, which read as under:

"59. Proof of facts by oral evidence.-- All facts, except the [contents of documents or electronic records], may be proved by oral evidence.

The Hon’ble Apex Court in Arjun Panditrao Khotkar Vs.

Kailash Kushanrao Gorantyal And Others2, in context with sub-section (4) of Section 65B has made the observation, as under:

Para-60: It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a "responsible official position" in relation to the operation of the relevant device, as also the person who may otherwise be in the "management of relevant activities" spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the "best of his knowledge and belief" [Obviously, the word "and" between knowledge and belief in Section 65B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time.]"

The Hon’ble Apex Court while placing reliance on case of Anvar’s case (referred supra 1) and overruling the case of Shafhi Mohammad Vs. State of Himachal Pradesh 2018 (2)

SCC 801, has held as under:

2 (2020 (7) SCC 1)

"the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, i.e. as laid down in Anvar P.V.case and incorrectly "clarified" in Shafhi Mohammed. Further oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law and clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. Further, Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom. The former being primary evidence, and the latter being secondary evidence.

The required certificate under Section 65B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. However, where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).

The Hon’ble Apex Court while answering the reference directed the courts dealing with electronic evidence to follow the general directions issued in para- 64