Shafhi Mohammad v. State of Himachal Pradesh
Supreme Court of India · 30 January 2018 · 2 judges
Overruled in whole or in part by Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), which says: “Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.”
A party producing electronic evidence who is not in possession of the device cannot be required to produce a certificate under Section 65B(4) of the Evidence Act; the requirement is procedural and may be relaxed in the interest of justice.
Facts
In SLP (Crl.) No. 2302 of 2017 the Court was considering whether videography of the scene of crime or recovery during investigation should be necessary to inspire confidence in the evidence. The Additional Solicitor General said videography would help investigation, and a Committee of Experts was set up to prepare a road-map and a standard operating procedure, though concerns were raised about funds, data storage and admissibility. As an identical question arose in SLP (Crl.) No. 9431 of 2011, the Court heard the amicus and the Union of India on the admissibility of electronic records, in particular whether a certificate under Section 65B(4) of the Evidence Act is always required.
Questions before the Court
- Whether a certificate under Section 65B(4) of the Evidence Act is mandatory where electronic evidence is produced by a party who is not in possession of the device.
- Whether Sections 65A and 65B of the Evidence Act are a complete code on the admissibility of electronic evidence.
What the Court held
- Electronic evidence is admissible, and Sections 65A and 65B are clarificatory and procedural. Authentic and relevant electronic evidence can be admitted, subject to the court being satisfied about its authenticity.
- Sections 65A and 65B are not a complete code on the subject; primary evidence of an electronic record is not covered by them.
- The certificate under Section 65B(4) is required only when the evidence is produced by a person in control of the device who is in a position to give it, not the opposite party. A party not in possession of the device may prove the record under Sections 63 and 65, so the certificate is not always mandatory.
- Being procedural, the certificate requirement can be relaxed by the court wherever the interest of justice so justifies. The questions on videography of crime scenes were adjourned.
Why it matters
The order treats the certificate under Section 65B(4) as a procedural requirement that a party without access to the device cannot be expected to meet, and allows such a party to prove electronic records under Sections 63 and 65. It reads Anvar P.V. as confining Sections 65A and 65B to secondary evidence of electronic records and relies on the three-judge decisions in Ram Singh and Tomaso Bruno on admissibility of evidence produced by new techniques.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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. In such case, procedure under the said Sections can certainly be invoked.”
“Accordingly, we clarify the 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. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
“Though in view of Three-Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. 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).”
Provisions interpreted
- Section 65B(4), Indian Evidence Act, 1872Now: BSA 63 (NCRB correspondence table)
- Section 65A, Indian Evidence Act, 1872Now: BSA 62 (NCRB correspondence table)
- Section 63, Indian Evidence Act, 1872Now: BSA 58 (NCRB correspondence table)
- Section 65, Indian Evidence Act, 1872Now: BSA 60 (NCRB correspondence table)
Related judgments
- Explains Anvar P.V. v. P.K. Basheer (2014)“In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act.” (page 7)
Case and bench
- Parties
- Shafhi Mohammad v. The State of Himachal Pradesh
- Case
- Special Leave Petition (Crl.) No. 2302 of 2017
- Decided
- 30 January 2018
- Bench
- Adarsh Kumar Goel, Uday Umesh Lalit
- Opinions
- Order of a two-judge Bench signed by Adarsh Kumar Goel and Uday Umesh Lalit JJ.; no separate opinions.
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