Shafhi Mohammad Vs The State Of Himachal Pradesh (2018) - Certificate u/s 65B IEA not Always Mandatory

Shafhi Mohammad Vs The State Of Himachal Pradesh (30 January, 2018) (Apex Court clears the air on Section 65B, Evidence Act) 

• Bench: JUSTICE ADARSH KUMAR GOEL & JUSTICE UDAY UMESH LALIT
• Appellant: SHAFHI MOHAMMAD   
• Respondent: THE STATE OF HIMACHAL PRADESH 

Issue

1. In this case, the question arose as to whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.
2. In the given context mentioned above, what would be the scope of applicability of the procedural requirements under Section 65(B)(4) of the Act for furnishing a certificate in case of electronic evidence produced by a person not in custody of the device generating such evidence? 

Facts

• A.N.S. Nadkarni, Additional Solicitor General, submitted a note to the effect that such videograph will indeed help the investigation and such concept is being used in some other advanced countries. The National Institute of Justice which is an agency of U.S. Department of Justice in its report has noted the perceived benefits for using the “Body-Worn Cameras” and also the precautions needed in doing so. It was further submitted that new technological device for collection of evidence are order of the day.
• Thereafter that, it was noted in the Order dated 12th October, 2017, that the matter was discussed by the Union Home Secretary with the Chief Secretaries of the States in which a decision was taken to constitute a Committee of Experts (COE) to facilitate and prepare a road-map for use of videography in the crime scene and to propose a Standard Operating Procedure (SOP). Although, an apprehension was expressed about its implementation on account of scarcity of funds, issues of securing and storage of data and admissibility of evidence.
• A further suggestion was made that still-photography may be useful on account of higher resolution for forensic analysis. Digital cameras can be placed on a mount on a tripod which may enable rotation and tilting. Secured portals may be established by which the Investigation Officer can e-mail 3 photograph(s) taken at the crime scene. Digital Images can be retained on State's server as permanent record.

Judgment

It was held that the requirement of certificate under Section 65B is not always mandatory. 

Relevant Paragraphs

1. It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original.
2. In Ram Singh And Others vs. Col. Ram Singh, 1985 (Supp) SCC 611 and English-law judgments such as R. vs. Maqsud Ali, (1965)2 All ER 464 and R vs. Robson (1972) 2 ALL ER 699; as well from American Law, (American Jurisprudence) it was observed that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. It was further observed that such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.
3. In Tukaram S. Dighole vs. Manikrao Shivaji Kokate, (2010) 4 SCC 329 the Apex Court observed that new techniques and devices are order of the day and though such devices are susceptible to tampering, no exhaustive rule could be laid down by which the admission of such evidence may be judged.
4. In Tomaso Bruno and Another vs. State of Uttar Pradesh, (2015) 7 SCC 178 the Apex Court observed that advancement of information technology and scientific temper must pervade the method of investigation and scientific and electronic evidence can be a great help to an investigating agency.
5. In Anvar P.V vs. P.L Basheer & Others (2014) 10 SCC 473 the Apex Court observed that electronic evidence by way of primary evidence was covered by Section 62 of the Act to which procedure of Section 65B of the Act was not admissible. However, for the secondary evidence, procedure of Section 65B of the Act was required to be followed and a contrary view taken in State (NCT of Delhi) vs Navjot Sandhu that secondary evidence of electronic record could be covered under Section 63 and 65 of the Act, was not correct.
6. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such 9 document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.
7. Thus cumulating all the above mentioned facts, it was clarified that the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Consequently, such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. Furthermore, the applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.
8. The matter stood adjourned to 13 February 2018 for the finalization of the road-map for use of videography in the crime scene and the Standard Operating Procedure (SOP). A party who is not in possession of a device from which the document is produced cannot be required to produce a certificate under Section 65B (4) of the Act was held by the Supreme Court. Thus, the requirement of certificate under Section 65B is not always mandatory.
9. The judgment of the Apex Court, after adverting to several judicial precedents, seems to have restricted the applicability of the statutory certificate required under 65B(4) of the Act or may have carved out an exception to applicability thereof. This judgment may provide sanctity to considerably significant evidence that was earlier not taken into account in view of being procedurally uncertified in accordance with Section 65B(4) of the Act. It will be interesting to observe how the other court(s) interpret the view taken by the Apex Court.

In keeping with the varying views surrounding the issue pertaining to applicability of Section 65B (4) of the Act and the legal position qua the admissibility of electronic evidence enunciated in the judgment of Anvar P.V vs. P.K Basheer 2014(10) SCC 473, that has not been expressly over-ruled till date, the ruling of the Apex Court is expected to have implications on several ongoing proceedings and trials.

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