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Supreme Court held that certificate is needed for secondary evidence and not for primary evidence.
1.6 In the case of Shafi Mohammad v. State of H.P., (2018) 2 SCC 801, Hon’ble Supreme Court placed reliance on “Anvar” to clarify that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. The Apex Court (Division Bench) further observed that the applicability of procedural requirement under Section 65-B(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. The court also stated that the necessity of the requirement of certificate being procedural can be relaxed by the court wherever the interest of justice so justifies.
1.9
7 SCC 515”. The Court reiterated that special provisions of Section 65-A and Section 65-B of Evidence Act is a complete code in themselves and that a written certificate under Section 65-B (4) is sine qua non for admissibility of such evidence, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer and incorrectly “clarified” by a division bench in Shafi Mohammed. The Apex Court also overruled Tomaso Bruno to the extent that “Secondary evidence” of contents of the document can also be led under Section 65 of the Evidence Act.
Aforesaid judgment is likely to have significant impact in determination of admissibility of electronic evidences as it has held:
i. Certificate under Section 65B(4) is not required if the original document itself is produced;
ii. Certificate under Section 65-B can be produced at any stage of the trial / proceedings.
iii. Secondary evidence” of contents of the document cannot be led under Section 65 of the Evidence Act.
To provide solutions to the issue raised in Shafi Mohammed regarding the difficulty of producing a certificate by a party who is not in possession of an electronic device, the Court suggested that it is always possible for the trial court to exercise its power to summon “the certificate” from the requisite person.
1.7 In view of the inconsistencies
between the decision of a two judge
bench decision in Sonu Vs. State of
Haryana, (2017) 8 SCC 570 [wherein
it was held that electronic record is
not admissible in evidence unless
it is accompanied by a certificate]
and Shafhi Mohammad Vs. HP vis iv. a vis Anvar P.V Vs. Basheer P.K,
a reference was made by the two judge bench in the Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and accordingly on the basis of the reference, a three bench was constituted and the three judge bench rendered its judgment on 14.7.2020, reported as 2020 SCC OnLine SC 571.
1.8 The court in Arjun Panditrao examined the entire law on Section 65-B from “Anvar P V” till “M.R. Hiremath (2019)
1.10
Hon’bleSupremeCourtalsoanalysed the Legislative developments in U.S.A., U.K. and Canada on the
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