Madhya Pradesh High Court
Deepankar Bhattacharya vs The State Of Madhya Pradesh Thr on 23 August, 2018
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 3038/2018
(Deepankar Bhattacharya Vs. State of M.P.)
Gwalior, Dated 23/8/18
Shri F.A. Shah, Advocate for the petitioner.
Shri R.S. Yadav, Public Prosecutor for the respondent/State.
The inherent powers of this court u/S. 482 Cr.P.C. are invoked to assail the interlocutory order dated 27/10/17 passed in S.T.No. 111/16 by Xth Additional Sessions Judge, Gwalior by which application u/S. 91 Cr.P.C. r/w section 65 B of Evidence Act preferred by the prosecution for allowing the electronic evidence of the audio clip of the conversation between the victim and the accused to be taken on record as secondary evidence has been allowed.
Learned counsel for the petitioner primarily contends that without complying with the mandatory requirement u/S. 65 B (2) of Evidence Act taking of electronic evidence on record is unlawful and for the said purpose reliance is placed on the decision of Apex Court in the case of Anvar P.V. Vs. ad P.K. Basheer and Others reported in (2014) 10 SCC 473.
After having heard learned counsel for the rival parties, it would be appropriate to reproduce the relevant extract of the judgment of Apex court cited by learned counsel for the petitioner for ready reference and convenience:-
"13. In the Statement of Objects and Reasons to the IT Act, it is stated thus:
"New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business."
In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 3038/2018 (Deepankar Bhattacharya Vs. State of M.P.) faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Section 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.Section 65B 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 65B(2). Following are the specified conditions under Section 65B(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 65B(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;3
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 3038/2018 (Deepankar Bhattacharya Vs. State of M.P.)
(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 65B(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 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
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 65A of the Evidence Act, read with Sections 59and 65B is sufficient to hold that the special 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 3038/2018 (Deepankar Bhattacharya Vs. State of M.P.) provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B 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." From the law laid down by the Apex Court, it is obvious that prerequisites prescribed in sub-section (2) from clause (a) to (b) of section 65 B are required to be scrupulously adhere to for bringing on record the information contained in electronic record which is copied in optical and magnetic media produced by a computer.
Thus while bringing on record the electronic information which is copied by the mode of magnetic media as is the case herein where the electronic audio data contained in the cellphone was transferred into a compact disk with the help of a computer, the application filed by the interested party who wants such evidence to come on record, should be supported by an affidavit containing necessary recitals regarding scrupulous compliance of sub-section (2) of Section 65 B of Evidence Act.
Bare perusal of application u/S. 91 Cr.P.C. preferred by the prosecution on 27/7/17 reveals that recitals contained therein do not satisfy the conditions prescribed in sub-section (2) of Section 65 of Evidence Act.
From the above, it is evident that the mandatory provisions of Section 65 B (2) and its scope and application as explained by the Apex Court in Anvar P.V. (supra) has not been considered by the learned trial judge while deciding application of prosecution u/S. 91 Cr.P.C. r/w section 65 B of Evidence Act.
The trial Court has thus not exercised the jurisdiction vested 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 3038/2018 (Deepankar Bhattacharya Vs. State of M.P.) in it in the appropriate manner and therefore, this court needs to step in to prevent failure of justice.
Accordingly, exercising the inherent powers of this court u/S. 482 Cr.P.C., the present M.Cr.C. stands allowed and the impugned order dated 27/10/17 passed by Xth Additional Sessions Judge, Gwalior stands quashed to the extent it allows the application u/S. 91 Cr.P.C. with liberty to the prosecution to file a fresh application reflecting compliance of Section 65 B (2) of Evidence Act, which if filed within 30 days shall be considered and decided by the learned trial Judge before proceeding ahead in the trial.
This court before parting and for the sake of clarity hastens to add that resort to sub-section (4) of Section 65-B, if made, can be done only after the prerequisites of sub-section (2) of Section 65-B are satisfied.
No cost.
(Sheel Nagu) Judge 23/08/2018 ojha Digitally signed by YOGENDRA OJHA Date: 2018.08.24 17:54:42 -07'00'