February 05, 2018
Case name: Shafhi Mohammad v. The State of Himachal Pradesh
Date of Judgment: January 30, 2018
In this recent case, the Two-Judge Bench of the Supreme Court has clarified the legal position in context of admissibility of electronic evidence to hold that furnishing of certificate under Section 65B(4) of the Evidence Act was not a mandatory provision and its requirement could be waived off in view of facts and circumstances and if interest of justice required the same.
In the case the core issue was whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence? During the course of hearing in the case apprehension was expressed on the question of applicability of conditions under Section 65B(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.
In order to settle the legal position in relation to requirement of certificate under Section 65B(4) of the Evidence Act for admissibility of electronic evidence delved into relevant precedents and made the following key observations in the case:
- That it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.
- That admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.
- That new techniques and devices are order of the day. Though such devices are susceptible to tampering, no exhaustive rule could be laid down by which the admission of such evidence may be judged.
- The Bench also made reference to the case of Tomaso Bruno and Anr. v. State of Uttar Pradesh that observed that advancement of information technology and scientific temper must pervade the method of investigation. Electronic evidence was relevant to establish facts. Scientific and electronic evidence can be a great help to an investigating agency.
- That 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 65B(h).
- That the applicability of procedural requirement under Section 65B(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. That it will be denial of justice to not permit a 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 absence of certificate under Section 65B(4) of the Evidence Act , which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.
- Legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act .
- That the applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.
The entire case can be accessed here.
 (2015) 7 SCC 178