The petitioners have challenged the order passed by the

learned Sessions Judge allowing the admissibility of the

electronic evidence of photographs, CCTV footage and CD9s

produced in case No.17/2018.

2.

Learned counsel for the petitioner submits that the

production of the certificate under Section 65(B)(4) of Indian

Evidence Act is a condition precedent to the admissibility of

evidence by way of electronic record as held by the Apex Court

in the Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal

and others.

3.

On the other hand, learned High Court Government

Pleader appearing for the State would submit that the order

passed by the Sessions Judge admitting the electronic evidence

as secondary evidence in the absence of certificate under Section

65(B)(4) Indian Evidence Act is permissible. Hence, the order

passed by the Sessions Judge cannot be faulted with.

4.

The Apex Court in the case of Arjun (Supra) at para

59 has held as follows:

3

< 59. We may reiterate, therefore, that the

certificate required under Section 65B(4) is a condition

precedent to the admissibility of evidence by way of

electronic record, as correctly held in Anvar P.V. (supra),

and incorrectly <clarified= in Shafhi Mohammed (supra).

Oral evidence in the place of such certificate cannot

possibly suffice as Section 65B(4) is a mandatory

requirement of the law. Indeed, the hallowed principle in

Taylor Vs. Taylor (1876) 1 Ch.D 426, which has been

followed in a number of the judgment of this Court, can

also be applied. Section 65B(4) of the Evidence Act

clearly states that secondary evidence is admissible only

if lead in the manner stated and not otherwise. To hold

otherwise would render Section 65B(4) otiose.=

5.

The Apex Court in the aforesaid case has held

that the Section 65(B)(4) of the Indian Evidence Act

clearly

mandates

that

the

secondary

evidence

is

admissible only if lead in the manner stated and not

otherwise. In the present case, the electronic record

produced by the prosecution has been treated as

secondary evidence in the absence of a certificate under

Section 65(B)(4) Indian Evidence Act, which is contrary

to the decision of Apex Court in the case of Arjun

Panditrao Khotkar (Supra). Accordingly, I pass the

following:

4

ORDER

i)

Criminal petition is allowed;

ii)

The impugned order dated 08.02.2021 marking

Ex.P3 to P8 through PW1, Ex.P10-P13 through PW2; and

the order dated 09.02.2021 marking the documents as

Ex.P.16 through PW3, Ex.P18 through PW4, Ex.P.21 and

25 through PW6, Exs.P.22 & P.24 through P.W.7,

Exs.P.26 & P.28 through P.W.8, and Ex.P.28 through

P.W.9 passed by the V Additional District & Sessions

Judge, Dharwad, Sitting at Hubballi, in S.C.No.70/2018

are hereby quashed.

Sd/-

JUDGE

SSP