Is Certificate under Evidence Act mandatory for production of Electronic Evidence? SC refers question to larger Bench

The Supreme Court on Friday referred to a larger Bench the question pertaining to the requirement of certification for the production of electronic evidence under Section 65B(4) of the Indian Evidence Act..A two-judge Bench of Justices Ashok Bhushan and Navin Sinha observed that with an increased dependence on electronic evidence during an investigation, an earlier decision of the Supreme Court passed in 2018 by a two-judge Bench needs to be reconsidered. The order says,.“With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter. “.The Court cites two judgments of the Supreme Court passed earlier on this issue. In the 2014 judgment in Anvar PV v. PK Basheer passed in 2014, a three-Judge Bench of the Supreme Court had laid down that electronic evidence as secondary evidence will not be admitted till it fulfilled the requirements laid down under Section 65B. This Section, which the Court said was a code in itself, was inserted in the Evidence Act by way of an amendment introduced in the Information Technology Act. To this effect, that judgment had stated,.“An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”.However, in another judgment rendered by a two-Judge Bench of the Supreme Court in 2018 in the case of Shafhi Mohammad vs. State of Himachal Pradesh, it was held by the Court that Sections 65A and 65B cannot, in fact, be held to be complete codes in themselves and went on to say that “procedural requirement” under Section 65B (4) shall be made applicable only when the person in possession of the electronic evidence is in the position to produce certification. It was held,.“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.”.The Court also observed that if authentic evidence is produced by a party that is not in possession of the device and admission of such evidence is not permitted, “it will be denial of justice to the person who is in possession of authentic evidence/witness.”.Therefore, in light of differing opinions of the Supreme Court, in the instant case, the Court referred the matter to a larger Bench stating that in the light of the 2014 judgment, the verdict passed in 2018 deserves to be reconsidered..[Read Order]