Madhya Pradesh High Court
Lateef Gauli vs The State Of Madhya Pradesh on 16 November, 2017
1 M.Cr.C. No.6604/2017
(Lateef Gauli Vs. State of M.P.)
Jabalpur : 16/11/2017
Shri Manish Dutt, Senior Advocate with Shri T.P.
Jaiswal, Counsel for the applicant.
Shri Saurabh Shrivastava, Public Prosecutor for the
respondent/State.
Heard finally.
This application under Section 482 of Cr.P.C. has been filed against the order dated 31-3-2017 passed by Vth A.S.J., Khandwa in S.T. No.173/2013 by which the certificate under Section 65-B of Evidence Act has been taken on record after the Compact Disc was exhibited in Evidence.
The necessary facts for the disposal of the present application in short are that the applicant is facing trial for offence under Sections 302/34 and 506 Part II of I.P.C. The dying declaration of the deceased was recorded and the compact disc of dying declaration was also prepared. The compact disc was exhibited in evidence as Article 'A'. It appears that later on the prosecution itself filed an application to the effect that the compact disc was not proved in accordance with law, therefore, it may be permitted to examine the video photographer and the person who had prepared the C.D. The said application was allowed and the witnesses were summoned. Thereafter, a third application was filed to the effect that the C.D. has already been admitted in evidence, but since a certificate under Section 65-B of Evidence Act is also required, therefore, the prosecution be permitted to file the certificate. The said application was 2 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) opposed by the applicant. The Trial Court by order dated 31- 3-2017 allowed the application and the certificate under Section 65-B of Evidence Act was taken on record. It is not out of place to mention here that along with the C.D., certificate under Section 65-B of Evidence Act was not filed and even without the certificate, the C.D. was exhibited as Article 'A'.
Challenging the order dated 31-3-2017 passed by the Trial Court, it is submitted by the counsel for the applicant that as per the provision of Section 65-B of Evidence Act, the electronic document must be accompanied by a certificate issued under Section 65-B of Evidence Act, otherwise, the electronic record would not be maintainable in law. In the present case, initially the C.D. was filed without any certificate under Section 65-B of Evidence Act. Thereafter, another application was filed for summoning additional witnesses like the video photographer and the person who had prepared the C.D. and later on, another application has been filed for taking the certificate under Section 65-B of Evidence Act on record. It is submitted that the provision of Section 65-B is a mandatory provision and the electronic document must be accompanied by the certificate under Section 65-B of Evidence Act, otherwise, it would be inadmissible. Merely because the C.D. was exhibited as Article, would not mean that the said electronic record has been admitted in evidence, and the applicant is still within his right to challenge the admissibility of the said C.D. 3 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) Per contra, it is submitted by the counsel for the State that as certificate under Section 65-B of Evidence Act is necessary, therefore, the certificate under Section 65-B of the Evidence Act can be filed at any time and thus, the Trial Court has not committed any mistake in taking the certificate under Section 65-B of Evidence Act on record.
Heard the learned counsel for the parties. The Supreme Court in the case of Anvar P.V. Vs. P.K. Basheer reported in (2014) 10 SCC 473 has held as under :
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 situation, resort can be made to Section 45-
A--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 65-B 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 4 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) 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 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.
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22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65- A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An 5 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) 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.
The Supreme court in the case of Harpal Singh Vs. State of Punjab reported in (2017) 1 SCC 734 has held as under :
56. Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cellphones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65-B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. ordaining an inflexible adherence to the enjoinments of Sections 65-B(2) and (4) of the Act, we are 6 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65-B(2) had been complied with, in the absence of a certificate under Section 65-B(4), the same has to be held inadmissible in evidence.
57. This Court in Anvar P.V. has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65-B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65-A and 65-B of the Act as above.
A co-ordinate Bench of this Court by order dated 5-4- 2016 passed in the case of Abhay Singh Vs. Rakesh Singh, in E.P. No. 34 of 2014 has held as under :
22.......... The certificate on affidavit of Shri Ajeet Tiwari purported to be filed under Section 65-B(4), has been prepared a long time after the alleged transfer of the electronic record from memory card to the compact Disc by Shri Tiwari and a long time even after filing of the election petition. There is no endorsement made by Shri Tiwari on the Compact Disc (Annexure P/4) indicated that he had prepared the same Compact Disc from the 7 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) original memory card. In these circumstances, the purported certificate under Section 65-B(4) of the Evidence Act can in no case ensure the source of the secondary evidence of electronic record nor the authenticity thereof, which as per the Supreme Court in Anwar P.V. (Supra), is the basic purpose of a certificate under Section 65-B(4). As such, no useful purpose would be served in granting leave to take such an affidavit on record.
The facts of the case are more or less identical to that of the facts of the case of Abhay Singh (Supra). In the said case also, the certificate under Section 65-B (4) of Evidence Act was sought to be filed during the pendency of Election Petition. It was held that since there is no endorsement on the Compact Disc by the videographer that the C.D. has been prepared from the original card. Secondly, at the time of evidence, the Compact Disc must be accompanied by the certificate issued under Section 65-B(4) of Evidence Act. In the present case, admittedly, when the Compact Disc was marked as Article "A", it was not accompanied by the certificate issued under Section 65-B of Evidence Act, therefore, the same could not have been admitted in evidence.
It has been held by the Trial Court that since the Compact Disc has already been admitted in evidence, therefore, the prosecution can be allowed to file the certificate under Section 65-B of Evidence Act at a later stage.
8 M.Cr.C. No.6604/2017(Lateef Gauli Vs. State of M.P.) The Supreme Court in the case of Dayamathi Bai Vs. K.M. Shaffi reported in (2004) 7 SCC 107 has held as under :
13. We do not find merit in this civil appeal.
In the present case the objection was not that the certified copy of Ext. P-1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (see Order 13 Rule 3 of the Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple to which one of us, Bhan, J., was a party vide para 20 : (SCC p. 764) "20. The learned counsel for the defendant- respondent has relied on Roman Catholic Mission v. State of Madras in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in 9 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons:
firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking 10 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
(emphasis in original)
14. To the same effect is the judgment of the Privy Council in the case of Gopal Das v. Thakurji in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edn., p. 1084, it has been stated that where copies of the documents are admitted without objection in the trial court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be 11 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) taken at the time of admission and such objection will not be allowed at a later stage.
Thus, it is clear that where the mode of proof was irregular or insufficient and where the document is already marked as exhibit, then the objection with regard to its mode of proof cannot be raised at a later stage, however, where the document itself is not admissible, then it has to be excluded though it might have been brought without any objection.
In the light of the judgment passed in the case of Anwar P.V. (supra), it is clear that the electronic document without accompanied by a certificate under Section 65-B of Evidence Act is not admissible in law.
Therefore, even if any document might have been marked as an Exhibit or Article, and if the said document is not admissible in law, then whether or not any objection with regard to its admissibility was raised at the relevant time, the said document will have to be excluded. Similarly in the present case where the C.D. without a certificate under Section 65-B of Evidence Act was not admissible in evidence, then merely because it has been marked as Article, would not make the said document admissible. Further, the C.D. should have contained the certificate under Section 65-B of Evidence Act, when it was tendered in evidence. In the present case, undisputedly, the C.D. was not accompanied by the certificate under Section 65-B of Evidence Act when it was marked as Article "A", therefore, the certificate under Section 65-B of 12 M.Cr.C. No.6604/2017 (Lateef Gauli Vs. State of M.P.) Evidence Act cannot be allowed to be filed at a later stage.
Accordingly, this Court is of the considered opinion that the Trial Court committed material illegality by allowing the application filed by the prosecution for placing the certificate under Section 65-B of Evidence Act on record. Accordingly, the order dated 31-3-2017 passed by Vth A.S.J., Khandwa in S.T. No.173/2013 is hereby set aside.
The application succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge Arun*