The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies, the bench observed.
The Supreme Court has clarified that a party who is not in possession of device from which the electronic document is produced, cannot be required to produce certificate under Section 65B (4) of the Evidence Act.
A bench of Justice AK Goel and Justice UU Lalit clarified this legal position while considering special leave petitions in which the question to be considered was whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.
During the course of hearing, an apprehension was expressed regarding the applicability of conditions under Section 65B (4) of the Evidence Act to the effect that if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities. It was suggested that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could 4 not be mandatory.
In this context, the bench, referring to various judgments, observed that the applicability of procedural requirement under Section 65B(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. “In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such 9 document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory,” the bench added.
The court has adjourned the case to 13th February for finalisation of the road-map for use of the videography in the crime scene and the Standard Operating Procedure (SOP).