Late submission of certificate under S 65-B Evidence Act for electronic evidence

[Anonymous]

Dr. Dhamija Sahib! In a Civil Suit, the defendant has placed an unpacked / unsealed CD without the signature of any witness on it and without Certificate under Section 65B (4) of the Evidence Act, 1872 along with written statement on 28 – 03 – 2016. As per his version in the written statement, he has recorded the conversation between the parties on his mobile phone on 16 – 02 – 2016 which was converted into the alleged CD by him with the help of laptop. The date of the conversion of the alleged conversation on the alleged CD with the help of laptop has not been mentioned by him. Now, he has filed an application on 09 – 08 – 2017 after a gap of about 18 months for allowing him to place on record another copy of the same CD along with Cerificate under Section 65 B (4) of the Evidence Act, 1872. In the said application, he has also prayed before the court that the said alleged CD be played in the open Court and thereafter be sealed. Can it be done as per law at this stage?
Further, in another case under Section 138 of N. I. Act, 1881, he filed another application in the criminal court with the same prayer and placed on record the copy of the alleged CD and Certificate under Section 65B (4) of the Evidence Act, 1872 along with the said application on 04 – 08 – 2017 whereas the permission to place on record these documents is still to be granted by the said court. Can the said alleged CD and Certificate under Section 65B (4) of the Evidence Act, 1872 be placed on the record of criminal case at this stage? Also clarify if the said alleged CD can be played in the open court at the time of the cross examination of the complainant in criminal case at this stage. It will be so nice of you sir, if you refer some authorities for both the cases with your comments for my benefit.

[Dr. Ashok Dhamija]

In my opinion, it should be permissible under law for the court to permit submission of the certificate required under Section 65-B(4) of the Evidence Act at a later stage, provided the certificate fully meets the requirements as mentioned in Section 65-B [i.e., of sub-sections (2) and (4) thereof].

In this regard, I may point out that in the case of Kundan Singh v. State [Crl. Appeal No. 711/2014, decided on November 24, 2015], a division bench of the Delhi high court discussed the issue whether a certificate under sub-section (4) to Section 65B must be issued simultaneously with the production of the computer output or a certificate under Section 65B can be issued and tendered when the computer output itself is tendered to be admitted as evidence in the court or as in the that case by the official when he was recalled to give evidence. Referring to the Supreme Court judgment in the case of Anwar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the high court held that:

“the aforesaid paragraph does not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under sub-section (4) to Section 65B. This is not so stated in Section 65B or sub-section (4) thereof. Of course, it is necessary that the person giving the certificate under sub-section (4) to Section 65B should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in sub-section (2), identify the electronic record, describe the manner in which “computer output” was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer.”

A similar opinion has been expressed by Delhi high court in the case of Eli Lilly and Company v. Maiden Pharmaceuticals Limited, (2016) 235 DLT 381.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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