1. This Civil Revision Petition is filed against the order dated 02.08.2022 in I.A.No.422 of 2019 in O.S.No.35 of 2014 by the Court of Principal District and Sessions Judge, Jangoan. The petitioners are the defendants No.1 and 2 in the suit filed by the plaintiff i.e., respondent No.1 herein.
2. Brief facts leading to the filing of the present revision petition are that the respondent No.1 has filed a suit for partition and separate possession against the petitioners as well as respondent No.2 herein. The written submissions was also filed and the plaintiff got the evidence marked in his favor. Ex.A65 is a memory card (CD) containing the recording of the conversation of the plaintiff with the husband of the defendant No.1, in which he is alleged to have made certain admissions with regard to the partition of the suit schedule property. The petitioners herein have filed I.A.No.422 of 2019 seeking demarking/rejection and eschew of the evidence of Pw.1 from the records with regard to the said Ex.A65. The objections taken by the petitioners were that the evidence has been marked in the absence of the counsel for the defendants in the suit and that since the evidence is in the form of a CD, it has to be submitted along with a petition under Section 65-B of Indian Evidence Act, whereas the CD has been marked without any petition and hence has to be demarked and rejected.
3. It is further submitted that the CD did not contain any recording and also did not accompany the certificate about the date and time of recording and that it is also not filed along with a certificate to the effect that it was not edited nor morphed nor altered.
4. The plaintiff/respondent No.1 has filed counter affidavit stating that it is the duty of the counsel for the defendants to be present in the Court at the time of marking of the documents and that ample time had been given to the counsel to be present before the Hon’ble Court. It was further submitted that the document Ex.A65 is a memory card which is marked subject to proof and relevancy and that it is the burden of the plaintiff to prove the same.
5. It is further submitted that the particulars of the memory card has been specifically stated in the chief affidavit that the same was recorded during the conversation between the plaintiff, his brother and his wife. It was stated that no specific permission is required under Section 65-B of the Indian Evidence Act for marking of the documents recorded through electronic media and that at a belated stage of cross examination, after several adjournments, the petitioner is raising that there is nothing in the CD supplied by the respondent/plaintiff and that the plaintiff was ready to supply one more copy of the CD. After taking the same into consideration, the Principal District and Sessions Judge, Jangaon, has held that the Section 65-B certificate can be filed at any stage of the suit and that the Ex.A65 would be considered subject to its relevancy to the suit. Considering the same, the petition filed by the petitioner was rejected. Further, the respondent/plaintiff was directed to furnish the certificate under Section 65-B of the Indian Evidence Act in connection with the electronic record marked by the Court as Ex.A65 within ten days from the date of the order. Challenging the above order, the present Civil Revision Petition is filed.
6. Learned counsel for the petitioner submitted that the Ex.A65 which is a copy of the alleged conversation between the plaintiff and the husband of the defendant No.1 and father of defendants No.2 and 3, is nothing but secondary evidence and therefore, it has to be accompanied along with the certificate under Section 65-B of the Indian Evidence Act and since it has not been filed along with the said certificate, the same should not have been marked by the lower Court and the application filed for demarking or rejection of said evidence, has wrongly been rejected by the lower Court.
7. Learned counsel for the petitioners has painstakingly taken this Court through the Judgment of the Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others AIR 2020 SC 4908, to support his argument.
8. Learned counsel for the respondent/plaintiff, on the other hand submitted that though it was alleged that the CD supplied by the plaintiff to the respondents was blank, subsequently the CD containing conversation has been supplied to the petitioners herein. He submitted that under Section 65-B of the Indian Evidence Act, the secondary evidence containing the electronic evidence can be furnished subject to the furnishing of the certificate at any stage of the suit i.e., prior to cross examination of the witnesses and therefore, the lower Court has rightly rejected the application of the petitioners.
9. Both the counsel relied upon the judgment of the Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others, (cited supra).
10. Having regard to the rival contentions and the material on record, it is noticed that the evidence filed by the plaintiff is in the form of a CD containing the recording of conversation. Therefore, it is not a primary evidence, but it is a secondary evidence and therefore, it has to be accompanied with the certificate under Section 65-B of the Indian Evidence Act. What is the stage at which Section 65-B certificate is to be produced, is the issue before this Court in the present case.
11. The Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others (cited supra), has considered the relevant provisions of the Indian Evidence Act as well as Information Technology Act and at Para-24 of its order has reproduced the interpretation made by the Hon’ble Supreme Court of Section 65-B of the Act in the case of Anwar P.V. Vs. P.K.Basheer 2014 (10) SCC 473 to hold as under:
Para-24: 14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed Under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned Under Sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65-B(2). Following are the specified conditions Under Section 65-B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned Under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
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.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.
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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.
Thereafter, at Paras 57 to 60, which was held as :
57. Subject to the caveat laid down in paragraphs 50 and 54 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence.
58. It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a 'responsible official position' in relation to the operation of the relevant device, as also the person who may otherwise be in the 'management of relevant activities' spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the "best of his knowledge and belief" (Obviously, the word "and" between knowledge and belief in Section 65B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time).
59. We may reiterate, therefore, that the certificate required Under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D. 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.
60. In view of the above, the decision of the Madras High Court in K. Ramajyam (supra), which states that evidence aliunde can be given through a person who was in charge of a computer device in the place of the requisite certificate Under Section 65B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled.
Thereafter, at Para 72 of the order, the Hon’ble Supreme Court has answered the reference by observing as under:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as MANU/SC/0331/2018 : (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate Under Section 65B(4) is unnecessary if the original document itself is produced. 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 stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till Rules and directions Under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
(d) Appropriate Rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable Rules for the retention of data involved in trial of offences, their segregation, Rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate Rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice's Conference in April, 2016.
12. A detailed reading of the above judgment clearly clarifies the position that for admissibility of any evidence in the electronic mode, it has to be accompanied by a certificate under Section 65-B of the Indian Evidence Act. However, as clarified, the said certificate can be produced at any stage of the proceedings with the leave of the Court. In the case before this Court, the Principal District and Sessions Judge has directed the respondent/plaintiff to produce the certificate within a period of ten days from the date of the order, as the trial of the suit is not yet over. Therefore this Court does not find any reason to interfere with the order of the lower Court.
13. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.
