A Bench comprising of Justice U U Lalit and A K Goel recently in Shafhi Mohammad versus The State of Himachal Pradesh (30 January ,2018) considered “whether videography of the scene of crime or scene of recovery during the investigation should be necessary to inspire confidence in the evidence collected.”
- Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.
- In the order to make an electronic evidence admissible in the court and it is not mandatory to submit a certificate to prove the same.
- 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.
- If a person is not in a position to produce a certificate for the electronic evidence he has submitted to the court, then the provisions of section 65B will not be applicable in such a case. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act.The applicability of requirement of a certificate being procedural can be relaxed by Court wherever interest of justice so justifies.
Advocate Jayant Bhushan said that in such a case the evidence should be accepted by the court and could be later sent for verification to technical labs to see whether it was tampered or not.
The matter has been adjourned to 13th February, 2018 to consider the remaining aspects, including finalisation of the road-map for use of the videography in the crime scene and the Standard Operating Procedure (SOP).
Earlier Views of the Apex Court on new technological evidence
(a) Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329,
The Supreme Court observed that new techniques and devices are an order of the day. Though such devices are susceptible to tampering, no exhaustive rule could be laid down by which the admission of such evidence may be judged. Standard of proof of its authenticity and accuracy has to be more stringent than other documentary evidence.
(b) Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015) 7 SCC 178
A Three-Judge Bench observed that advancement of information technology and scientific temper must pervade the method of investigation. Electronic evidence was relevant to establish facts. Scientific and electronic evidence can be a great help to an investigating agency.
(c) Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473
A three-Judge Bench observed that electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65B of the Evidence Act was required to be followed. The electronic record can be proved only as per Section 65B of the Evidence Act.
This post has been contributed by Saransh Vijay, a penultimate techno legal student at School of Law, UPES University.
Image from here