THE SCOPE & NECESSITY OF CERTIFICATE UNDER SECTION 65B OF THE INDIAN EVIDENCE ACT, 1872:SHAFHI MOHAMMAD V. STATE OF HIMACHAL PRADESH

[AIR 2018 (2) SCALE 235]

By- Aayushi Mehta

“Extraordinary claims require extraordinary evidence.”

― Carl Sagan

INTRODUCTION:

Keeping in cognizance of the social, political, and economic variations there has been fruition in the laws of our country. One of the chief introductions has been the Information and Technology Act of 2000 (ITA, 2000).

One of the key motives as to why ITA, 2000 was brought into force was that with the advancement of technology a step forward needed to be advanced towards the practice of laws in our country.

Furthermore, after the outline of this act, changes were brought into force in the Indian Evidence Act by way of the addition of Section 65A and 65B respectively to the act. Section 65 of the Indian Evidence Act serves two main purposes.

  • Firstly, it enables the computer outputs to be produced as evidences in the court even if the original evidence has not been produced by a party.
  • Secondly, it has also empowered the consideration of e-records as deemed to be documents for the purpose of the Indian Evidence Act.

The best example of such an advancement is that during the stage of lockdown in our country the court hearings were carried out successfully on an online platform. Not only the hearings of court have become electronic but erstwhile to this there has been occasions where the evidences were also produced in the court in e-form. The only drawback that might occur during production of e-evidences is that they can be easily manipulated or destroyed.

Consequently, there always have been instances where the judiciary has also been futile to answer whether the production of the certificate should be mandatory for considering the admissibility of e-evidences or not.

Prior to the Shafhi Mohammad v. State of Himachal Pradesh judgment, there have been cases like the state (N.C.T. of Delhi) v. Navjot Sandhu andAnvar P.V. v. P.K. Basheer & Ors., where the same question as to whether the production of the certificate be considered mandatory for considering the admissibility of e-evidences have been discussed.

The judgment of this case has, however, provided an easing on the issue of production of certificate for considering the admissibility of e-evidences. The relaxation has been only provided in cases where the party is not in possession of the device. 

Section 79A of the Information Technology Act, 2000 needs to be highlighted which states:

“The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Explanation. -For the purposes of this section, “electronic form evidence” means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.”

FACTS:

The facts of the cases are as follows:

  1. The question that arose in this case was whether the videography of the crime scene should be taken into consideration while presenting a case before the Hon’ble Supreme Court. The issue that arose was a matter of utmost consideration which was to be determined after perceiving the proceedings in case of earlier hearings.
  2. Moving ahead with the case it was found that videography would prove to be essential evidence in the case. Further, it was highlighted in this case that videos, audios etc. could be considered as first-hand information and could work as strong evidence in a case.
  3. Also, in this case it was pointed out that post-mortem and dying declarations should be in video form.
  4. During the proceedings of this case it was also observed by the court that all evidences need to be taken into consideration before reaching on to the conclusion of a particular case. Therefore, it was adopted by the court that electronic evidences should also be taken into consideration and they will have the same authenticity like other evidences.
  5. Also question in this case also arose related to the authenticity and accuracy of the e-evidences produced as compared to the documentary evidences. As new technologies are subject to tampering there exist no exhaustive rules for judging the admissibility of such evidences.
  6. Therefore, the main issue in this case was the interpretation of section 65B (4) of the Indian Evidence Act.

ISSUES RAISED:

The two major issues which arose in this case were:

  1. Whether during the process of investigation,video recording of the crime scene be considered as a necessary source to stimulate confidence in the evidences collected?
  2. What is the scope of applicability of the procedural necessities in case of e-evidences produced by an individual who is not in custody of the device fabricating the evidence-under Section 65B(4) of the Indian Evidence Act?

OBSERVATION BY THE COURT:

The Hon’ble Supreme Court after hearing the case stated that a Central Oversight Body (COB) requires to be established by the Ministry of Home Affairs. The COB would be responsible for the planning and implementation of laws relating to the use of videography in the investigation of crime.

The use of videography would always depend on the feasibility of the case. Further, the court also ordered that CCTV should be installed in all police stations and prisons to ensure that the basic human rights of any detainee are not violated.

Also, the COB was duty-bound to appoint a committee which would study the CCTV footage and compile such information and submit a detailed report of the same within 3 months

The Hon’ble Supreme Court while dealing with the second issue observed that the party who is not in the custody of a device that is being produced as an e-evidence is not permitted to produce a certificate under section 65B(4) of the Indian Evidence Act.

This condition can only be omitted if the court finds that it is necessary to do so in the interest of justice. Therefore, the observations made by the Apex Court are as follows:

  1. E-evidences are absolutely permissible in the court of law.
  2. This section is to be applied in instances where the e-evidences is produced by a person who is in its possession and not by the opposite party.
  3. Further, the court observed that justice is said to be denied if a party who is in custody of the evidences does not produce it purely because the party proving it is not in possession of the certificate under section 65B (4).
  4. Prerequisite of a certificate is not always considered to be obligatory.The party who is not is ownership of the device from which the document is produced cannot be obligated to produce a certificate under this section.

Therefore, it can be clearly stated that a certificate under section 65B (4) is not always mandatory. Sometimes, relaxation on the basis of “in the interest of justice” should be taken into consideration.


Case Notes

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