When A Person Refuses To Issue Certificate Under
Section 65-B(4) Of Evidence Act, Court Must Order Its Production : Supreme Court ---------------
The
Supreme Court has observed that application can be made to the trial
court to direct a person to produce the certificate under Section
65-B(4) of Evidence Act on the refusal of such person to produce the
same otherwise.
"In a fact-circumstance where the requisite certificate has been applied
for from the person or the authority concerned, and the person or
authority either refuses to give such certificate, or does not reply to
such demand, the party asking for such certificate can apply to the
Court for its production under the provisions aforementioned of the
Evidence Act, CPC or CrPC.
Once
such application is made to the Court, and the Court then orders or
directs that the requisite certificate be produced by a person to whom
it sends a summons to produce such certificate, the party asking for the
certificate has done all that he can possibly do to obtain the
requisite certificate (paragraph 45)", observed the bench.
The bench added that "where either a defective certificate is given, or
in cases where such certificate has been demanded and is not given by
the concerned person, the Judge conducting the trial must summon the
person/persons referred to in Section 65B(4) of the Evidence Act, and
require that such certificate be given by such person/persons(paragraph
50)".
The
bench comprising of Justices RF Nariman, S. Ravindra Bhat and V.
Ramasubramaniam observed that a Court may in appropriate cases allow the
prosecution to produce such certificate at a later point in time.
The court observed thus in the case Arjun Panditrao Khotkar vs Kailash
Kushanrao Gorantyal while holding that the certificate required under
Section 65B(4) is a condition precedent to the admissibility of evidence
by way of electronic record.
The court was answering reference on the question "Is requirement of
certificate U/s 65-B(4) Evidence Act mandatory for production of
electronic evidence?" A two judge bench had referred the question in
view of the conflict between Shafhi Mohammad vs. State of Himachal
Pradesh and Anvar P.V. vs. P.K. Basheer.
The court overruled the two judge bench judgment in Shafhi Mohammad, in
which it was held that, a party who is not in possession of device from
which the electronic document is produced, cannot be required to produce
certificate under Section 65B (4) of the Evidence Act.
The
Court said that the major premise of Shafhi Mohammad (supra) that such
certificate cannot be secured by persons who are not in possession of an
electronic device is wholly incorrect. It said:
"In a fact-circumstance where the requisite certificate has been applied
for from the person or the authority concerned, and the person or
authority either refuses to give such certificate, or does not reply to
such demand, the party asking for such certificate can apply to the
Court for its production under the provisions aforementioned of the
Evidence Act, CPC or CrPC. Once such application is made to the Court,
and the Court then orders or directs that the requisite certificate be
produced by a person to whom it sends a summons to produce such
certificate, the party asking for the certificate has done all that he
can possibly do to obtain the requisite certificate.
In
facts of the case, the court observed that, since the concerned party
had done everything possible to obtain the necessary certificate, which
was to be given by a third-party over whom the party had no control, he
must be relieved of the mandatory obligation contained in the said
sub-section.
The Court also noted that Section 65B does not speak of the
stage at which such certificate must be furnished to the Court and that
in In Anvar P.V. (supra), it was held that such certificate must
accompany the electronic record when the same is produced in evidence.
In
this regard, the Court clarified thus:
"We may only add that this is so in cases where such certificate could
be procured by the person seeking to rely upon an electronic record.
However, in cases where either a defective certificate is given, or in
cases where such certificate has been demanded and is not given by the
concerned person, the Judge conducting the trial must summon the
person/persons referred to in Section 65B(4) of the Evidence Act, and
require that such certificate be given by such person/persons.
This,
the trial Judge ought to do when the electronic record is produced in
evidence before him without the requisite certificate in the
circumstances aforementioned. This is, of course, subject to discretion
being exercised in civil cases in accordance with law, and in accordance
with the requirements of justice on the facts of each case. When it
comes to criminal trials, it is important to keep in mind the general
principle that the accused must be supplied all documents that the
prosecution seeks to rely upon before commencement of the trial, under
the relevant sections of the CrPC. "
Taking note of the rights of the accused in a Criminal Trial, the bench
observed
In
terms of general procedure, the prosecution is obligated to supply all
documents upon which reliance may be placed to an accused before
commencement of the trial. Thus, the exercise of power by the courts in
criminal trials in permitting evidence to be filed at a later stage
should not result in serious or irreversible prejudice to the accused. A
balancing exercise in respect of the rights of parties has to be
carried out by the court, in examining any application by the
prosecution under Sections 91 or 311 of the CrPC or Section 165 of the
Evidence Act. Depending on the facts of each case, and the Court
exercising discretion after seeing that the accused is not prejudiced by
want of a fair trial, the Court may in appropriate cases allow the
prosecution to produce such certificate at a later point in time.
If
it is the accused who desires to produce the requisite certificate as
part of his defence, this again will depend upon the justice of the case
- discretion to be exercised by the Court in accordance with law. "
The court has further held that required certificate under
Section 65B(4) is unnecessary if the original document itself is
produced. In this regard, the bench observed thus:
"This can be done by the owner of a laptop computer, computer tablet or
even a mobile phone, by stepping into the witness box and proving that
the concerned device, on which the original information is first stored,
is owned and/or operated by him.
In
cases where the "computer" happens to be a part of a "computer system"
or "computer network" and it becomes impossible to physically bring such
system or network to the Court, then the only means of providing
information contained in such electronic record can be in accordance
with Section 65B(1), together with the requisite certificate under
Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as
"…if an electronic record as such is used as primary evidence under
Section 62 of the Evidence Act…" is thus clarified; it is to be read
without the words "under Section 62 of the Evidence Act,…" With this
clarification, the law 81 stated in paragraph 24 of Anvar P.V. (supra)
does not need to be revisited."
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