Cert. u/s 65B EA Can Be Filed At Any Stage Of Trial

During trials, Judges are often asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused. The Court continue to grapple with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be manipulated or falsified, creates hurdle to admissibility not faced with the other evidence. Though the Evidence Act has been amended to include the non-obstante clause, Section 65B to prove the secondary electronic evidence, the provision has not been adhered to in true spirit as laid down by the legislature. The prosecution agency continue to resort to Section 63/65 EA Act to prove the secondary electronic evidence, the practice which gets its strength from the law laid down in the Navjot Sandhu Case [1]. The investigating agency did not make any effort to preserve or seize the original media/evidence leading into a situation entrapping itself where it cannot comply with the Section 65B of Evidence Act. The recent judgment of the Apex Court in the matter of Anvar P.V. Case [2] requiring mandatory compliance leading to a Catch 22 situation for prosecution agency who cannot comply with Section 65B in the pending cases because of non-availability of original media and built up their cases revolving around digital evidence only.

Prior to the judgment of Anvar P.V., the prosecution has not filed the certificates u/s 65B EA alongwith secondary copy of digital evidence and the result is the non-admissibility of the evidence resulting into acquittal of the cases. The judgment of Paras Jain Case [3] came to the rescue police and prosecution agency. The court has held that the certificate u/s 65B EA can be filed by the prosecution at any stage of trial. Replying to the question that whether the documentary evidence which have not filed with the charge sheet cannot be produce subsequently, the court held the answer in negative and it can be filed at any stage to meet the goal of a criminal trial which is to discover the truth.

The court observed that Section 91 Cr.P.C. empowers the court to call for any document which is necessary or desirable for the purpose of trial and such power can be exercised by the court at any stage of the proceeding and the court can always issue the summon for production of any document which is required for the proper disposal of the case irrespective of the fact that it has not been filed with the charge sheet. Further, the court has also the power u/s 311 of Cr.P.C. to examine any person though not summon as a witness and it is permissible for the court even to order production of a document if it is an essential for the just decision of the case.

The prosecution agency u/s 173(8) Cr.P.C. has the power to carry out further investigation and collection of digital evidence even after filing of the charge sheet which is a statutory right for which the prior permission of the magistrate is not required and as such the police can file Section 65B certificate u/s 173(8) particularly in the cases where such certificate has not been filed. Further, the court observed that as per Section 231 Cr.P.C., the prosecution is entitled to produce any person as a witness even though such person is not named in the charge sheet. While concluding, the court observed that:-

“23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form.”

While concluding the court also observed that for these reasons it does not agree with the view expressed by the Single Judge of Delhi High Court in the Matter of Ankur Chawla Case [4].

In view of the judgment of Paras Jain wherein, the court has relied upon the reasoning which is the settled law, the prosecution agency can file certificate u/s 65B EA by way of supplementary charge sheet u/s 173(8) Cr.P.C. It is a basic principle of interpretation that [5]:-

“All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation.”

Thus, in all the cases where the police has not filed the certificate u/s 65B EA, the same can be filed by way of supplementary charge sheet u/s 173(8) Cr.P.C. and this in no way even stops the police to generate the same electronic record as fresh and file in the court by way of charge sheet u/s 173(8) Cr.P.C.

_____________________________________________________________________

  1. State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, [(2005) 11 SCC600]
  2. Anvar P.V. v. P.K. Basheer and Others, [MANU/SC/0834/2014]
  3. Paras Jain v. State of Rajasthan, [MANU/RH/1150/2015]
  4. Ankur Chawla v. CBI, [MANU/DE/2923/2014]
  5. Rani Kusum v. Smt. Kanchan Devi & Ors., [(2005)6SCC705]

23 comments

  • Sir, are there any obligation on Delhi district courts to follow the judgment of Rajsthan High court .
    e.g the Judgment passed by single judge of Delhi High courts In case of Ankur Chawal Vs CBI AND single judge of Rajsthan High court in case of Paras Jain Vs state of Rajsthan.

    • Dear Anil Kumar,
      Normally, the courts follows the decision of their own High Court. However, in the present case, the decision of Rajasthan High Court contained detailed reasoning which is not the case with judgment of Ankur Chawla, so it depends on how much you can convince the court through the facts and the reasoning.

      Neeraj Aarora
      Cyber Lawyer

  • Sir, One person conduct sting operation into I-Phone. He gives the video recording in form of DVD to the police. He deleted the original recording from I-Phone and thus he refused to produce the I-Phone & memory chip. Now during investigation, he issued 65B certificate after one year on request of I.O. , when original does not exist.
    Is this certificate is legal? After deletion, how will he prove that the content are same as original as these words is mentioned in this certificate.

    • Dear Anil,

      Certificate u/s 65B Evidence Act cannot be issued in the absence of original evidence. In the absence of original evidence, the person issuing the certificate u/s 65B may be held liable for forgery and fabricating false evidence. The accused has a right to move an application for inspection of original evidence at any stage of trial till in the exhibition of evidence and cross examination of the concerned witness.

      Regards

      Neeraj Aarora
      Cyber Laywer
      https://en.wikipedia.org/wiki/User:Neeraj_Aarora

  • Respected Sir, it is my last question:-
    Section 65B IEA talks about electronic record : Any information contained in an electronic record – ………shall be admissible in any proceedings, without further proof or production of the original.
    Does court permit aforesaid video recording in form of DVD admissible without further proof or production of original as mentioned in sec 65B(1) IEA . Whereas in the case of Documentary Evidence, only sec 65 IEA talks for inspection of original evidence.
    Kindly to clear the point : inspection of original evidence in reference of electronic record whereas 65B IEA does not talk about the inspection of electronic record. Thanking you.

  • I think the Rajasthan HC judgment is not the correct view. The invocation of S.311 is for just decision of the case. If documents to be brought on record at any stage, the purpose of the certificate itself goes. Why not the prosecution know what they are required to do when they want to rely the electoronic evidence. Ignornace of law is not an excuse…If this is the case, every time prosecution will fabricate such certificate and the burden of court to consider inspection applicaiton will also increase. Why to burden the court job when the law is clear. Why to delay the trial as in India delay is the biggest shortfall of litigation

    • The court has not gone into the various situations which may arise. Further, the admissibility and proving of electronic record are two different things and depending upon the cross examination and arguments of defence, such certificate may become inadmissible. Further, the division bench of Delhi High Court in the matter of Kundan Singh vs The State [MANU/DE/3674/2015] has held that even such certificate can be tendered into evidence at the stage of Section 391 of the Cr.P.C. The issue which is bigger than the admissibility is the authenticity which has been appreciated by the court in the aforesaid case of Kundan Singh. Further, the requirement of metadata as provided u/s 7 of the IT Act can also be made basis for challenging the admissibility of electronic evidence.

      Regards
      Neeraj Aarora

      Regards
      Neeraj Aarora

  • What are anti vires and anti malware which should be installed as recommended by you and which are free.
    I also want to know whether case for compensation should be filed along with complaint under cyber law?

    • Dear Mr. Bajaj,

      I am not recommended any specific anti virus/anti malware. You can get further details from the internet. You have not specified for which purpose you want to file a complaint under cyber law.

      Regards
      Neeraj Aaora

  • Sir, whether the prosecution is required to obtain the certificate u/s 65(b) even from an accused if some electronic evidence in the possession of an accused has been seized by the prosecution and being cited as an evidence before the court of law.

  • S.N.Derashri /

    Dear Mr. Neeraj
    I am an advocate. I want to get your expert opinion about some important points. I also request you to kindly let me know about the citation if any on that point.
    1. As per judgment of Rajasthan High Court a crtificate u/s 65 B EA act can be produced in the court at any stage of trial and non production of the same with charge sheet is mere an irregularity but my query is when the certficate is to be prepared? wheather same can be prepared on any other date after filing the charge sheet to fill up the lacuna in the evidence.
    Let me clear the query.
    In one case ACB submitted in year 2011.CDs and transcript were prepared in Jan. 2011. Now the prosecution has submitted a certificate Dtd. Feb. 2016 U/s 65B EA Act. purported to be signed by the then IO.
    wheather such a certificate is admissible in evidence. whether preperation and production of such a certificate in evidence does not amount to forgery/perjury.
    Sir will you help me to counter such a situation.
    Thanks
    S.N.Derashri

    • The various judgments, now, allow to file the certificate u/s 65B at a later stage i.e. after the charge-sheet or at the time of taking evidence. In the situation cited by you, if the original does not exist, it is a case of forgery/perjury. However, if the original exist, you need to cross examine carefully to challenge the authenticity of such certificate. The various judgment on this issue are silent however, the certificate should be of the same date and by the person who have prepared the out. Law in this regard is still unsettled. You need to do cross examination carefully demolishing the original evidence, technical process follows, metadata of cd etc. In the recent judgment of Kundan Singh, the divisional bench of Delhi High Court has specifically held that the process of creating the data as well as chain of custody has to be proved by the prosecution.

  • Dear Neeraj ji , in a case filed by CBI under PC Act against me in year 2012 the CBI have filed the transcripts of recorded conversation ( prepared by them only ) along with the charge sheet in Nov 2012 without any certificate , the conversation was allegedly recorded on voice recorder and mobile phone of CBI Inspector , which was never seized and subjected to examination . only memory cards were seized . The voice samples were taken and CFSL report was also submitted with charge sheet but that too without any certificate. Now , during trail if they get the transcript made from CFSL and submits certificate along with , would it be admissible under the new developments ie. after Anwar , Naresh jain and Kundan judgement . If we have to raise the objection , what is the right time , viz @ at the time of their filing certificate or at the conclusion of the case during arguments.
    2. The CDRs were also filed alongwith the charge sheet but that too without any certificate ( singed and stamped by SDO of BSNL) . Now can they file any certificate during recording of witness of that SDO. in this case what should be our stand , should we object now or later at the time of final arguments. please advise and save life.

    • If they have seized the memory card containing the voice recording, it is the original piece of evidence which is admissible u/s 62 Evidence Act. The objection is required to be raised at the earliest because the different courts make interpenetration in different manner. CBI can file certficate u/s65B at the stage of evidence which can be taken on record directly. You have to be prepared with the appropriate objection and cross examination and depending upon the testimony, certificate, nature of evidence, the appropriate defence is to be taken.

  • Hello Neeraj Sir,

    I am having mobile recordings b/w me and my wife and same recordings i had copied in USB & my personal laptop because my wife having virus to check & scan my mobile phone on daily basis so safety purpose I cut the call recordings folder from mobile phone and paste in Pen drive & laptop.

    Now my question here is can I use these recordings in my ongoing matrimonial cases 498a case in U.P & Divorce case in Delhi.
    Does these recordings are admissible in court or it’s useless.

    waiting for your valuable advice.

    Regards,
    Lucky

  • Thanks Neeraj Sir for your informative reply.

    One more question would like to know

    How long the call detail records (CDRs) are stored by private mobile operators i.e.Vodafone in India?

    Regards,
    Lucky

  • Sir, in a suo-moto case registered by police, a chargesheet revolving around a video recording in form of DVD with 65 B certificate issued after one year while original does not exist . In this regard, may you prefer an advocate to raise technical aspect. (Case is in ACB/Tis hazari court)

  • Saurabh Napit /

    Dear Sir,

    If the person is Certifying any document at individual capacity and working as employee of any company. Is the Certificate should be on letter head of Company or it can be on simple paper

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