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Cert. u/s 65B EA Can Be Filed At Any Stage Of Trial

During trials, Judges are often asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused. The Court continue to grapple with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be manipulated or falsified, creates hurdle to admissibility not faced with the other evidence. Though the Evidence Act has been amended to include the non-obstante clause, Section 65B to prove the secondary electronic evidence, the provision has not been adhered to in true spirit as laid down by the legislature. The prosecution agency continue to resort to Section 63/65 EA Act to prove the secondary electronic evidence, the practice which gets its strength from the law laid down in the Navjot Sandhu Case [1]. The investigating agency did not make any effort to preserve or seize the original media/evidence leading into a situation entrapping itself where it cannot comply with the Section 65B of Evidence Act. The recent judgment of the Apex Court in the matter of Anvar P.V. Case [2] requiring mandatory compliance leading to a Catch 22 situation for prosecution agency who cannot comply with Section 65B in the pending cases because of non-availability of original media and built up their cases revolving around digital evidence only.

Prior to the judgment of Anvar P.V., the prosecution has not filed the certificates u/s 65B EA alongwith secondary copy of digital evidence and the result is the non-admissibility of the evidence resulting into acquittal of the cases. The judgment of Paras Jain Case [3]came to the rescue police and prosecution agency. The court has held that the certificate u/s 65B EA can be filed by the prosecution at any stage of trial. Replying to the question that whether the documentary evidence which have not filed with the charge sheet cannot be produce subsequently, the court held the answer in negative and it can be filed at any stage to meet the goal of a criminal trial which is to discover the truth.

The court observed that Section 91 Cr.P.C. empowers the court to call for any document which is necessary or desirable for the purpose of trial and such power can be exercised by the court at any stage of the proceeding and the court can always issue the summon for production of any document which is required for the proper disposal of the case irrespective of the fact that it has not been filed with the charge sheet. Further, the court has also the power u/s 311 of Cr.P.C. to examine any person though not summon as a witness and it is permissible for the court even to order production of a document if it is an essential for the just decision of the case.

The prosecution agency u/s 173(8) Cr.P.C. has the power to carry out further investigation and collection of digital evidence even after filing of the charge sheet which is a statutory right for which the prior permission of the magistrate is not required and as such the police can file Section 65B certificate u/s 173(8) particularly in the cases where such certificate has not been filed. Further, the court observed that as per Section 231 Cr.P.C., the prosecution is entitled to produce any person as a witness even though such person is not named in the charge sheet. While concluding, the court observed that:-

“23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form.”

While concluding the court also observed that for these reasons it does not agree with the view expressed by the Single Judge of Delhi High Court in the Matter of Ankur Chawla Case [4].

In view of the judgment of Paras Jain wherein, the court has relied upon the reasoning which is the settled law, the prosecution agency can file certificate u/s 65B EA by way of supplementary charge sheet u/s 173(8) Cr.P.C. It is a basic principle of interpretation that[5]:-

“All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation.”

Thus, in all the cases where the police has not filed the certificate u/s 65B EA, the same can be filed by way of supplementary charge sheet u/s 173(8) Cr.P.C. and this in no way even stops the police to generate the same electronic record as fresh and file in the court by way of charge sheet u/s 173(8) Cr.P.C.

1. State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, [(2005) 11 SCC600]
2. Anvar P.V. v. P.K. Basheer and Others, [MANU/SC/0834/2014]
3. Paras Jain v. State of Rajasthan, [MANU/RH/1150/2015]
4. Ankur Chawla v. CBI, [MANU/DE/2923/2014]
5. Rani Kusum v. Smt. Kanchan Devi & Ors., [(2005)6SCC705]

THE ABOVE IS A CITATION BY SR ADV ARORA

From the fatc stated, you need to defend the charges against you on merits.