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The question relating to the need of certification of the production of electronic evidence under Section 65B(4) of the Indian Evidence Act was referred to a larger bench by the Supreme Court on Friday.
Justice Ashok Bhushan and Justice Navin Sinha, a two judge bench, noted the increased liability on electronic evidence in the course of the investigation, the earlier decision of the Bench has to be reconsidered. The order read out,
"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. "
Two Supreme Court judgements were referred in regard to this issue. Anvar PV v. PK Basheer, 2014 was held by a three member bench, they held that the electronic evidence shall not be admitted till it fulfilled the requirements laid down under Section 65B. The judgement states,
"An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by a certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”
The second judgement which was referred was passed in the year 2018 by a Two Judge Bench in Supreme Court in the case of Shafhi Mohammad vs. State of Himachal Pradesh. The Judgement stated 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."
The Court also added that if authentic evidence is produced by a party that is not in possession of the device and admission of such evidence is not permitted,"it will be a denial of justice to the person who is in possession of authentic evidence/witness."
Hence the SC referred the case to a larger bench referring to the matter that 2014 and 2018 judgement has to be reconsidered
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