In an important decision delivered by the Supreme Court on 21 November 2016, it has been held that where the prosecution has relied upon the secondary evidence in the form of printed copy of the mobile phone call details, even assuming that the mandate of Section 65-B(2) of the Evidence Act had been complied with, in absence of a certificate under Section 65-B(4) of the said Act, the same has to be held inadmissible in evidence. This decision was delivered by a two-judge bench of the Supreme Court comprising Justice AK Sikri and Justice Amitava Roy, in the case of Harpal Singh @ Chhota v. State Of Punjab [CRIMINAL APPEAL NO. 2539 OF 2014]. For this purpose, the Supreme Court relied upon its earlier judgment in the case of Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 [see: How electronic records such as call details and computer records can be proved?].
Thus, the legal principle that any electronic record in the form of secondary evidence cannot be admitted in evidence unless a certificate under Section 65-B of the Evidence Act is produced, has been reiterated. It is pertinent to point out that in the present case before the court, the prosecution had produced printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved, including those, amongst others, recovered from the accused persons. Mr. R. Basant, the senior counsel for accused had contended that the calls details of the cell phones said to have been involved were per se inadmissible in evidence in the face of apparent non-compliance of the mandatory prescriptions of Section 65B of the Act, and in this regard, he had placed reliance on the decision of the Supreme Court in aforesaid Anvar P.V. case.
In this regard, the Supreme Court observed as under:
“Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence. This Court in Anvar P.V. (supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above.”
In the present case before the Supreme Court, the appellants, two out of the six persons, convicted under Sections 364A, 395, 412, 471, 120B IPC and the appellant-Harpal Singh @ Chhota in Criminal Appeal No.2539 of 2014 also under Section 25 of the Arms Act, had challenged the affirmation of their conviction by the High Court by the order dated 21.04.2014.
However, on an overall assessment of the entire gamut of evidence, the Supreme Court held that the charges against the accused persons including the appellants stand proved beyond reasonable doubt even sans the proof of the phone call details. The gravamen of the imputations levelled against them was that of conspiracy and abduction of the victim pursuant thereto for ransom by detaining him under the threat to cause death or hurt and thereby to compel his father to meet their demand. Accordingly, their appeals were dismissed.
Read full order of the court: