Licenced to : Mr.

Dhirendra Jagroopsinh Rajput (GJ00958)

2019 (0) AIJEL-SC 66347

SUPREME COURT OF INDIA

Hon'ble Judges: Ashok Bhushan, Navin Sinha

Arjun Panditrao Khotkar Versus Kailash Kushanrao Gorantyal

with

Vijay Versus Arjun

with

Kailash Kushanrao Gorantyal Versus Arjun Panditrao Khotkar

CIVIL APPEAL No. 20825 of 2017 ; 20826 of 2017 ; CIVIL APPEAL No. 2407 of 2018 ; CIVIL APPEAL No.
3696 of 2018 ;

Decided on:- 26-07-2019

Acts and Rules Referred :

EVIDENCE ACT, 1872 Section - 65A

Law Points :- Evidence Act, 1872 - S.65a - Special Provisions as to Evidence Relating to Electronic
Record.

Cases Referred To :

1. Anvar P.V. Vs. P.K. Basheer And Others, 2014 10 SCC 473 : 2015 AIR SC 180 : 2014 (10) Scale 660 : JT
2014 (10) 459 : 2014 AIR SCW 5695
2. Shafhi Mohammad Vs. State Of Himachal Pradesh, 2018 2 SCC 801 : 2018 AIR SC 714 : 2018 (2) Scale
235 : JT 2018 (2) 277 : 2018 (2) Supreme 545

Appereances :
Paramjit Singh Patwalia, Haribhau Damodar Zol, Ravindra Keshavrao Adsure, Pratik Arvind Bhosle,
prashant Ramakant Katneshwarkar, Ajit Babanrao Kale, Sagar Nadkumar Pahune-patil, Anand Landge,
natasha Dalmia, Harshikha Verma, Dhruv Sheoran, Devadatta Kamat, Rajesh Inamdar, Javed-ur
Rahaman, ashwin G.Raj, Gautam Talukdar, Meenakshi Arora, Shashibhushan P.Adgaonkar, Pradnya
S.Adgaonkar

Equivalent citations: 2020 (3) SCC 216 : 2020 (2) SCC(Cri) 34

JUDGEMENT :-
1. In Anvar P.V. vs. P.K. Basheer and others, (2014) 10 SCC 473, a three Judges Bench of this Court held:

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"16. It is further clarified that the person need only to state in the certificate that the same is to the best of
his knowledge and belief. Most importantly, such 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 based on proof of electronic records
can lead to travesty of justice.

xxxxx

20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions
under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and
65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be
governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in
itself. Being a special law, the general law under Sections 63 and 65 has to yield.

xxxxx

22. .. An electronic record by way of secondary evidence shall not be admitted in evidence unless the
requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be
accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that electronic record, is inadmissible."

2. In Shafhi Mohammad vs. State of Himachal Pradesh, (2018) 2 SCC 801, a two Judges Bench decision, it
has been held:

"20. An apprehension was expressed on the question of applicability of conditions under Section 65-B(4)
of the Evidence Act to the effect that if a statement was given in evidence, a certificate was required in
terms of the said provision from a person occupying a responsible position in relation to operation of the
relevant device or the management of relevant activities. It was submitted that if the electronic evidence
was relevant and produced by a person who was not in custody of the device from which the electronic
document was generated, requirement of such certificate could not be mandatory. It was submitted that
Section 65-B 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. This provision could not be read in derogation of the existing law on
admissibility of electronic evidence.

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24. We may, however, also refer to the judgment of this Court in Anvar P.V. v. P.K. Basheer, delivered by a
three-Judge Bench. In the said judgment in para 24 it was observed that electronic evidence by way of
primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65-B of the
Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65-B of the
Evidence Act was required to be followed and a contrary view taken in Navjot Sandhu that secondary
evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not
correct. There are, however, observations in para 14 to the effect that electronic record can be proved only
as per Section 65-B of the Evidence Act.

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25. Though in view of the three-Judge Bench judgments in Tomaso Bruno and Ram Singh, it can be safely
held that electronic evidence is admissible and provisions under Sections 65-A and 65-B of the Evidence
Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and
relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and
procedure for its admissibility may depend on fact situation such as whether the person producing such
evidence is in a position to furnish certificate under Section 65-B(4).

26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.
In Anvar P.V., this Court in para 24 clarified that primary evidence of electronic record was not covered
under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the
Court and the expression "document" is defined in Section 3 of the Evidence Act to mean any matter
expressed or described upon any substance by means of letters, figures or marks, or by more than one of
those means, intended to be used, or which may be used, for the purpose of recording that matter.

xxxxx

29. The applicability of procedural requirement under Section 65-B(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 document
is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence
Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4)
is not always mandatory."

3. We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in
Shafhi Mohammad (supra) needs reconsideration. With the passage of time, reliance on electronic records
during investigation is bound to increase. The law therefore needs to be laid down in this regard with
certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that
there is an element of urgency in the matter.

4. Let the records be laid by the Registry before Hon'ble the Chief Justice of India for appropriate
directions.

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