An objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later, held the Court.
In a significant judgment Supreme Court of India has recently held that admissibility of electronic evidence cannot be challenged at appellate stage without objecting it at the trial Court, cannot be challenged at appellate Court if the objection is related to mode or method of proof. But the Court has clarified that if the document is per se inadmissible in evidence, it can be challenged at any stage.
A two judge Bench of Justices SA Bobde and Nageswara Rao was hearing an appeal against conviction filed by accused persons in an abduction and murder case.
The Investigating Officer collected the Call Detail Records (CDRs) of all the mobile phones that were recovered from the accused, mobile phones of the deceased and Dinesh Jain (PW 1) from the Nodal officers of the mobile companies. The CDRs that were obtained from the Nodal officers of the telephone companies which were exhibited in the Court without objection clearly proved the complicity of all the accused. The Trial Court relied on the testimonies of PW1 and PW3, the recoveries made pursuant to the disclosure statements of the accused and the CDRs of the mobile phones of the accused, the deceased and PW 1 to concluded that the prosecution established that the accused are guilty beyond reasonable doubt.
In the Appeal the High Court re-appreciated the evidence and placed reliance on the disclosure statements, the consequential recoveries and the CDRs of the mobile phones to confirm the findings of the Trial Court.
During the course of hearing in Supreme Court, Senior Advocate Sidharth Luthra contended that the CDRs are not admissible under Section 65B of the Indian Evidence Act, 1872 as admittedly they were not certified in accordance with sub-section (4) thereof. He placed reliance upon the judgment of this Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 by which the judgment in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 was overruled. In view of the law laid down in the case of Anvar, Mr. Luthra submitted that the CDRs are liable to be eschewed from consideration.
Senior Advocate Mr. Vivek Sood, appeared for the State of Haryana submitted that the CDRs were adduced in evidence without any objection from the defence. He submitted that the accused cannot be permitted to raise the point of admissibility of the CDRs at the appellate stage.
The Court observed that an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra.
“The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court”.
The Court held that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later.
“The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies”
The Court thus made it clear that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.