Avadut Waman Kushe v. State of Maharashtra (2016) - Subsequent Filing of Certificate u/s 65B(4) IEA


Court :
Bombay High Court

Brief :
This judgement deals with the interpretation of section 65B(4) which lays down provision for certificate when a statement in evidence is to be given. The question before the Court was whether it is necessary to file a certificate at the time of production of electronic record or not.

Citation :
CDJ 2016 BHC 2356

  • DATE: 3rd March 2016
  • JUDGES: R.P. Sondurbaldota
  • PARTY: Avadut Waman Kushe

SUBJECT

This judgement deals with the interpretation of section 65B(4) which lays down provision for certificate when a statement in evidence is to be given. The question before the Court was whether it is necessary to file a certificate at the time of production of electronic record or not.

AN OVERVIEW

  1. In the present case, the petitioner, Mr. Avadut is being tried for charges under Prevention of Corruption Act and IPC. The evidence produced against him was a CD in which the petitioner’s conversation with the complainant were digitally recorded and produced with a charge sheet.
  2. However, the CD was not accompanied by certificate which is required under section 65B(4) of Indian Evidence Act. This formed the sole contention from the petitioner.
  3. The petitioner contended that at ‘Exhibit-20’, the CD in the absence of a requisite certificate was merely a secondary evidence and impermissible.
  4. The Sessions Court rejected the application at Exhibit-20 as devoid of merits but permitted the production of certificate. Subsequently, a reply was filed at Exhibit-23 with a certificate at Exhibit-24.
  5. The petitioner contended that to fulfil the purpose of section 65B(4), the certificate ought to be submitted along with CD and subsequent filing cannot be treated in compliance with the provisions.
  6. Referring to the judgement in Anvar P.V. case, the petitioner contended that the provision of section 65B(4) is a complete code in itself and a certificate is mandatory and has to be filed with the electronic record.

IMPORTANT PROVISIONS

INDIAN EVIDENCE ACT:

  • Section 65B(4): In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
  • (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
  • (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
  • (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

ISSUES

The key issue before the court was Whether the certificate under section 65B(4) of Indian Evidence Act is required to be filed for admission in evidence of electronic record simultaneously with the record or can be filed at any subsequent stage?

ANALYSIS OF THE JUDGEMENT

  • Computer is the biggest invention that the world has witnessed and digitalisation is the proof that it will still go through further evolutions. It has made everything so easy and with great ease has created a way for tampering of evidences. The authenticity of the electronic documents has become questionable because it is accessible to everyone and is subject to high misuse.
  • However, being at hand with everyone, electronic devices can be used to create evidence and for that electronic document to be used as an evidence, section 65B(4) lays down a provision to file a certificate to ensure the authenticity and integrity of the source. The court in the present case is dealing with the question whether such is certificate is necessary to be filed with the evidence or can be filed subsequently.
  • The only contention of the petitioner was that the record was not accompanied with the certificate as required u/s 65B(4) and the evidence is impermissible in its absence.
  • The petitioner stated that subsequent filing cannot be permitted as it is not in compliance with the provision. The petitioner relied on the judgement given in Anvar P.V v. P.K. Basheer in which it was held that a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial is based on proof of electronic records can lead to travesty of justice.
  • Answering this contention the court observed that in the cited decision the only important aspect considered was a mandatory filing of certificate under section 65B(4) of the Indian Evidence Act and it was nowhere mentioned that at what stage such certificate is to be filed.
  • Also, the section clearly uses the expression "in any proceedings where it is desired to give statement in evidence" which does not mention the stage at which at which the certificate is to be produced.
  • Therefore, the certificate need not be filed at the time of production of electronic record and can be filed when the record is tendered in evidence.
  • The purpose of certificate is to ensure authenticity of record in evidence. Subsequent filing of certificate cannot reduce its effectiveness as a safeguard against tampering

CONCLUSION

The above judgement can be best understood by the observations of the court in Paras Jain v. State of Rajasthan in which it was held that the goal of a criminal trial is to discover the truth and to achieve that goal, the best possible evidence is to be brought on record. Thus, in all the cases where the police has not filed the certificate under section 65B, the prosecution agency can file the certificate by way of supplementary charge sheet under section 173(8) of Cr PC. It is a statutory right which does not even require the prior permission of the magistrate. This decision clarifies the object of section 65B(4) which is to ensure authenticity of the evidence for a fair trial. The certificate is concerned with the admissibility and is not treated as a proof of truthfulness of the electronic record. Thus, it is rightly held by the court that the certificate under section 65B(4) can be filed subsequently by a competent authority and not necessarily simultaneously with the electronic record.

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Pallavi Singh
on 25 February 2021
Published in Others
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