Dismissed

Barnali Baishya v. State of U.P. and Anr.

Allahabad HC27 Nov 2018A482/7378/2018

Case brief

AI extract

What is this about?

The High Court quashed the trial court's order rejecting the applicant's prayer for the Cyber Cell to prove electronic records under Section 65-B(4) of the Evidence Act. The Court held that the certificate is required only when the person producing the record controls the device, which the applicant does not regarding her opponent's data.

What did the court decide?

Application dismissed; impugned order affirmed; trial to conclude within three months.

Barnali Baishya Vs State of U.P. and Anr. — Cheque Dishonour | Allahabad HC (2018)

Court No. - 53

Reserved A.F.R.

Case :- APPLICATION U/S 482 No. - 7378 of 2018

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Applicant :- Barnali Baishya Opposite Party :- State Of U.P. And Another Counsel for Opposite Party :- G.A., Gaurav Singh, Shruti Malviya

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Hon'ble J.J. Munir,J.

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Who would be 'a person occupying a responsible position' within the meaning of Section 65B(4) Indian Evidence Act, 1872, for the purpose of issuing a 'certificate of authenticity' as envisaged under Section 65B(4) last mentioned in relation to 'electronic record', or information 'sent in electronic form' as defined under Section 2(1) (t) and 2(1)(r), Information Technology Act, 2000, where such electronic record, or information in electronic form, is generated and sent from a personal computer or mobile phone?

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This question has arisen in the present case to be answered where the applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. seeking the following relief (material part):

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“….. to quash the order dated 08.02.2018 passed by the learned trial court namely Addl. Sessions Judge, FTC-1, Gautam Budh Nagar by directing her to summon the cyber Expert through S.S.P. Noida to prove electronic evidence in the light and spirit of order dated 20.09.2016 passed by this Hon'ble Court relating to the trial of S.T. No.580 of 2011, under sections 376, 323, 328 IPC, Police Station Mahila Thana, Noida, Distt. Gautam Budh Nagar [State versus Shivalik Ghosh and another.]”

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Heard Ms. Barnali Baishya, the applicant in person and Ms. Shruti Malviya, learned counsel appearing for opposite party no.2 and learned A.G.A. on behalf of the State.

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The facts giving rise to the present application are more or less undisputed. An FIR was lodged by the applicant, on 03.12.2010 at Police Station Mahila Thana, NOIDA, District Gautam Budh

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Nagar, against the second opposite party alleging that in the month of August, 2010, the applicant became the acquaintance of the second opposite party, Shivalik Ghosh through the marriage portal 'jeevansathi.com'. On 18.08.2010, Shivalik Ghosh last mentioned, picked up the applicant from her office located at Gurgaon and took her to his abode in Gurgaon, where he offered her some cold drink laced with some stupefying substance that caused her to lose consciousness. The applicant was ravished by the second opposite party while unconscious. On regaining consciousness, the applicant resisted, whereupon the second opposite party assured her of a very early marriage, and further reaffirmed that promise.

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After the said occurrence, the second opposite party became a frequent visitor to the applicant's home, and, on that assurance and understanding, had intimate physical contact with the applicant over a number of occasions at NOIDA and Gurgaon. Upon the applicant's repeat requests, the second opposite party shared his mother's mobile number with her. The applicant's mother too spoke to the second opposite party's mother, who did not repudiate the marriage proposal, and, instead indicated that they could marry after two years. The applicant too spoke to the mother of the second opposite party over her mobile number shared by the said opposite party, where again his mother did not refuse the marriage proposal. This exceedingly reassured the applicant, in consequence of which, the second opposite party resumed physical relations and in the midst of it at all, borrowed a sum of Rs.50,000/- of the applicant, that he never returned. On 01.09.2010, the applicant once again broached the subject of marriage to the second opposite party's mother, in response to which she said that her son had a loan in the sum of Rs.15 lakhs to repay, which she may repay and marry him. And, she said that physical relation of this kind, are commonplace between boys and girls, about which there is not much ado.

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On 13.09.2010, in the presence of a friend of the applicants, one Deepak, the second opposite party accepted the applicant's

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marriage proposal, and, said that on 14.09.2010 when his mother was scheduled to arrive, he would speak to her about it. It is said that on 14.09.2010, the applicant and the second opposite party went to receive his mother at the Airport, where his mother assaulted the applicant, chased her away, made the second opposite party go underground, and refused the marriage proposal. It is said in the first information, in the last lap of it, that the second opposite party fraudulently allured her into sexual cohabitation. And, the second opposite party's mother, Chaitali Ghosh, has abetted her son in this evil deed, and, that both of them are responsible for ruining the applicant's life. The applicant on account of all these events, has sustained a deep shock, and, has become psychologically unwell. She is still undergoing treatment. The informant on all these facts, requested registration of a case against the accused, being the second opposite party and his mother.

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The police registered a case on the basis of all the above facts delivered in the form of a written information on 03.12.2010 giving rise to Case Crime no.32 of 2010, under Sections 323, 328, 376 IPC, Police Station Mahila Thana, NOIDA, District Gautam Budh Nagar. The police after investigating the case, filed a charge sheet against the second opposite party and his mother on 11.01.2011, under Sections 323, 328, 376 IPC, before the Chief Judicial Magistrate, Gautam Budh Nagar. The Magistrate in due course, took cognizance of the offence and committed the case to the sessions, where after being numbered as Sessions Trial no.580 of 2011, State vs. Shivalik Ghosh and another, it has proceeded to trial, before the Court of the Additional Sessions Judge, FTC-1, Gautam Budh Nagar.

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During trial an application dated 04.11.2013 was made on behalf of the applicant, who is the de facto complainant of the case, under Section 311 Cr.P.C. with a prayer to admit certain documents to record, and, to recall certain witnesses to prove those documents, which according to the applicant, were necessary for a just and

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proper decision of the case.

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The said application came to be rejected by the trial court by means of an order dated 18.07.2014, that was challenged by the applicant before this Court through Application u/s 482 no.753 of 2015. Notice was issued to the opposite parties on 19.01.2015. The applicant moved the trial court on 13.03.2015, along with a copy of the aforesaid order of this Court dated 19.01.2015, with a prayer to adjourn further proceedings of the trial pending decision of Application u/s 482 no.753 of 2015. The trial court did not entertain the said application and proceeded with the trial, fixing 26.03.2015 as the next date. On 26.03.2015, the Sessions Trial was adjourned on a request by the learned counsel appearing for the second opposite party and his co-accused, his mother, and, 16.04.2015 was fixed. On 16.04.2015, there was no Presiding Officer posted and available on account of which, the case was adjourned to 28.04.2018. On the adjourned date, the Presiding Officer was on leave, in consequence of which, the case was adjourned to 14.05.2015. On 14.05.2015, the court passed an order rejecting the prayer of the applicant to grant a long adjournment in the trial, awaiting decision of Application u/s 482 no.753 of 2015, then pending before this Court.

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In order to obviate the likelihood of the trial being concluded, without an opportunity to the applicant to bring on record documents, that she thought necessary for a just decision of the case, the applicant filed another application to this Court u/s 482 Cr.P.C. being Application u/s 482 no.15142 of 2015, carrying a prayer to the effect, that proceedings of the trial be kept in abeyance pending decision of Application u/s 482 no.753 of 2015.

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The two applications under Section 482 last mentioned, were connected, heard together, and, decided by a common judgment and order dated 20.09.2016 after hearing all parties concerned, including the second opposite party, here. Application u/s 482

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no.753 of 2015 that carried the substantive relief sought by the applicant was allowed while the other application that was brought to prevent a conclusion of the trial, before the applicant's grievance was heard by this Court, was dismissed as infructuous. By the judgment and order dated 20.09.2016, passed in Application u/s 482 no.753 of 2015, this Court while allowing the same, set aside the Sessions Judge's order dated 18.07.2014 with a direction to the trial court to admit documents that the applicant sought to file to record, and, call witnesses required to prove those documents. It was further ordered that the trial court may also consider letting in secondary evidence, in case primary evidence is either not available or cannot be produced in court, without causing undue delay in conclusion of the trial.

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A further direction was issued by this Court regarding expeditious disposal of the trial, that is best expressed, in the words employed in the judgment of this Court dated 20.09.2016, in the penultimate paragraph, that read:

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“Since the proceedings of the trial have been stayed vide interim order dated 28.5.2015 passed in Application u/s 482 Cr.P.C. No. 15142 of 2015 and the main objection raised by O.P. No. 2 against the application u/s 311 Cr.P.C., if it is being allowed, is that it will cause delay in disposal of trial, which is at concluding stage, the trial court is further directed to conclude the trial in accordance with law expeditiously preferably within a period of six months from the date of production of a certified copy of this order.”

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The applicant submitted certain further evidence by way of documents including electronic records, numbering a total of seven documents through an application dated 18.05.2017, accompanied by a list of documents, and, the documents, either in original, or copies, to be admitted as secondary evidence in compliance with the judgment and order of this Court dated 20.09.2016, last mentioned. The said documents were admitted in evidence by the trial court, and, witnesses for the prosecution, being PW-7 to PW-12, were summoned to prove those documents, including electronic record. It may be mentioned here that the electronic record includes gmail chat record, between the applicant and the second opposite party,

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the printout of short message service, popularly abbreviated to SMS, all in a sequence, between the applicant and the second opposite party, printout of facebook posts by the second opposite party, and, printout of emails sent by the applicant to the second opposite party, between 02.09.2010 to 10.09.2010. It is in the context of the manner of proof of this electronic record, that the present proceedings have arisen.

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After the prosecution had proved documents filed by the applicant, to their understanding in the manner prescribed by law, the applicant made an application dated 08.02.2018, bearing paper no.166- Kha , a copy of which has been annexed to the supplementary affidavit 18^th April, 2018, as Annexure no. SA-5 with a prayer that in compliance of the order of this Court dated 20.09.2016, the electronic agency i.e. the Cyber Cell of the Police be directed to prove documents that are electronic record in accordance with Section 65-B Indian Evidence Act, before proceeding to record the statement of the accused under Section 313 Cr.P.C. It must be said that for a long time it is a stage not crossed in the trial, on account of the applicant raising this issue about her right to file documents, not filed by the State as the prosecutor, and, now on account of the manner in which those documents admitted to record, are required to be proved.

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An objection appears to have been filed to the said application (paper no.166- Kha) by the A.D.G.C., on behalf of the State, with a contention that documents that have been filed by the State and are part of the case diary, are available on record, and, there is no issue about proof of those documents. However, those documents that the applicant has filed, particularly, electronic record, the State's witness in this regard, PW-12, S.I. Pramod Kumar Tyagi, who is posted in the Cyber Cell of the Police, has stated that the prosecution are not in possession of the electronic record, copies of which have been filed by the prosecutrix on her motion, under orders of this Court, apart from the police papers. As such, PW-12, has best proved the

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copies of the electronic record filed as paper no. 138- Kha /5 to paper no.138- Kha /35. It was further urged before the court below, on behalf of the State, that so far as copies of documents that are electronic records, filed by the applicant under orders of this Court dated 20.09.2016 are concerned, the same can be proved in accordance with Section 65-B of the Evidence Act by the applicant, and not the State.

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There is also a stand taken by the State before the court below, that the applicant does not want the trial to proceed, and, has held it back at the threshold of the stage of statement of the accused under Section 313 Cr.P.C., since 07.08.2014. To the understanding of this Court, that may not be very material, in case otherwise the applicant is entitled to proof of documents in a particular manner by the State under Section 65-B of the Evidence Act, that have been admitted to record, after permission to file the same, was granted to the applicant as the de facto complainant, independent of the State by this Court vide order dated 20.09.2016. Whatever has been permitted to be filed in evidence, has to be proved, and, proved in accordance with the manner prescribed by law, and no other.

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The trial court proceeded to consider the rival contention of parties, in the face of directions issued twice by this Court to expedite proceedings and conclude the same early. It was recorded that since the order dated 20.09.2016 passed by this Court in Application u/s 482 no.753 of 2015, a copy of which was filed before the trial court on 26.11.2016, a period of fourteen months had elapsed. It was held that the applicant had not been able to pinpoint as to which of the specific and identified documents, the prosecution have not proved. It has been remarked by the trial court that during the hearing of the application too, the applicant could not specify the documents, that were not proved by the prosecution. And, with these findings, the application bearing paper no.166- Kha dated 08.02.2018 came to be rejected by means of the impugned order dated 08.02.2018.

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The applicant seeks the impugned order to be quashed, and her application paper no.166- Kha allowed in terms and substance of a direction that the prosecution, that is to say, the State be directed to produce a certificate under Section 65-B(4) of the Evidence Act, relative to the documents filed by her, that are electronic records. A perusal of the application, paper no.166- Kha, made to the trial court does not clearly indicate as to which particular document, the applicant seeks to be proved, in accordance with the provisions of Section 65-B(4). Therefore, the remark of the trial court in the order impugned, to the extent it says that the prayer is vague and unspecific, vis-a-vis the documents, the applicant seeks to be proved in accordance with Section 65-B, is not misplaced. But, at the same time the purport of the applicant's prayer, to the understanding of this Court is clear; and, that is that all documents filed by her, that are copies of electronic record, be required to be proved by the State by examining a Cyber Expert in the Cyber Cell, who is PW-12 here, after production of a certificate relative to each electronic record filed by her, in accordance with the provisions of Section 65B(4). The prayer of the applicant is, thus, clearly referable all those documents that can be, and are electronic record, that is to say, the gmail chat record between the applicant and the second opposite party, the printout of SMS, all in a sequence, between the applicant and the second opposite party, printout of facebook posts by the second opposite party, and, printout of emails sent by the applicant to the second opposite party, between 02.09.2010 to 10.09.2010. Thus, this Court does not agree with the reasoning of the trial court to the extent that by the impugned order, the application, paper no.166- Kha has been rejected on account of description of the documents sought to be proved being non-specific or vague.

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The question whether the applicant is entitled to a certificate being produced by the appropriate Officer of the State, who enters the witness box in order to prove all those documents, that the applicant has filed and are electronic record, the certificate being

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one envisaged under Section 65-B(4) of the Evidence Act, requires a look at the provisions of Section 65-B. An allied issue that would arise on way to an answer, to the question involved, cast in its widest terms in the opening part of this judgment would be: whether it is imperative in every case where electronic record is to be proved, that a certificate under Section 65-B(4) of the Evidence Act, be produced? The provisions of Section 65-B are quoted in extenso :

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“ Section 65B. Admissibility of electronic records .—

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(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

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(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

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(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

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(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

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(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

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(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

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(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

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(a) by a combination of computers operating over that period; or

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(b) by different computers operating in succession over that period; or

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(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

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(4) In any proceedings where it is desired to give a statement in evidence by virtue

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of this section, a certificate doing any of the following things, that is to say,—

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(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

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(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

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(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

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(5) For the purposes of this section,—

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(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

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(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

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(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

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The submission of the applicant, who has appeared in person, is that the electronic record filed by her, cannot be proved, in any other manner, except as envisaged under Section 65-B of the Evidence Act. She has submitted that for the purpose, it is imperative that a certificate as envisaged by Section 65-B(4) has to be filed by a person, in a responsible official position, in relation to the operation of the relevant device or the management of the relevant activities, in order to prove the contents of the electronic record. She submits that the said certificate can be produced by PW12, who is a Cyber Expert in the electronic agency of the Cyber Cell of the Police. She submits that his evidence recorded by the trial court without requiring him to produce the aforesaid certificate, would not hold good. In consequence, the applicant who is the de facto complainant, would be prejudiced by the State's failure, to conform to the requirement of Section 65-B(4). Ms. Shruti Malviya,

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learned counsel appearing for opposite party no.2, as well as the learned A.G.A., have repelled the said contention of the applicant, and submit that, the provisions of Section 65-B(4) of the Evidence Act, apply to a case where the person who produces the electronic record has control over of the device by which the electronic record was generated, stored, or received, but not otherwise. A person who does not have control or possession of the electronic device by which the electronic record has been produced, or received, is not obliged to furnish a certificate under Section 65-B(4). In fact, he cannot furnish or produce such a certificate at all. For the said reason, the Cyber Expert from the Cyber Cell of the Police, who has deposed as PW-12, cannot be mandated to produce the requisite certificate, as he does not have the relevant electronic devices in his possession or control, by which the electronic data, filed on behalf of the applicant was produced or received. It is the applicant herself who can, where she has the relative device in her possession and control, produce the requisite certificate.

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In reply, the applicant has reiterated her stand and placed reliance upon a decision of the Supreme Court in Anvar P.V. vs. P.K. Basheer and others, (2014) 10 SCC 473. She has, in particular, placed reliance on their Lordships guidance, where it is held:

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“14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

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( i ) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity

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regularly carried on over that period by the person having lawful control over the use of that computer;

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( ii ) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

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( iii ) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

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( iv ) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

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15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

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( a ) There must be a certificate which identifies the electronic record containing the statement;

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( b ) The certificate must describe the manner in which the electronic record was produced;

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( c ) The certificate must furnish the particulars of the device involved in the production of that record;

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( d ) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

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( e ) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

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16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

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17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A—opinion of Examiner of Electronic Evidence.

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18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.

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19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom

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was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.

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20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

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(Emphasis by Court)

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This Court thinks that before considering the position of law on the subject, the authority of their Lordships in Anvar P.V. ( supra ) require some further reference, where it is held:

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“24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”

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(Emphasis by Court)

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The facts in hand show that the electronic record, the secondary evidence of which, in the form of printouts on paper has been filed by the applicant, are produced, received, fed, stored, or recorded on a computer, or a mobile phone, over which the applicant had lawful control. It was and is in her possession. Going by the best evidence rule embodied under Section 62 of the Evidence Act, where primary evidence is to be produced to prove a fact, there is nothing to prevent the applicant to produce the

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computer or other device, the computer output whereof in print is filed on record as secondary evidence. She can conveniently produce and prove at the trial, the data stored on the relative computer or other device, without the necessity of risking admissibility of secondary evidence, that is governed by the provisions of Section 65-B, it being a case of electronic record. No good reason has been assigned by the applicant, why primary evidence of the electronic record cannot be produced, as the computer or other electronic device where she has received, stored, sent, or produced the relevant data, is after all a personal computer or a mobile phone. It is not a big and immoveable device, or system of devices, typical of a commercial or Government establishment that cannot be conveniently produced in court, or handled. In the opinion of the Court, therefore, the applicant is not at all justified in insisting upon leading secondary evidence, and then, causing the trial to be caught up and delayed, in the technical rules governing admissibility of secondary evidence of electronic records.

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Assuming, that the applicant is entitled to lead secondary evidence of the electronic record, that she relies on, it is the applicant, who alone can establish that the conditions envisaged under Section 65-B(2) of the Evidence Act, are all fulfilled so as to render secondary evidence of the electronic record admissible. This is so as she is the master and owner of the computer or the other electronic device, like the mobile phone, where the electronic data or records, of which secondary evidence is sought to be given, has been produced, received, fed, or stored. For the same reason, it is the applicant alone, who can furnish a certificate, to the extent it relates to the computers in her possession and control, in order to lead secondary evidence of it, as envisaged under Section 65-B(4). It can certainly not be a Cyber Expert from the Cyber Cell of the Police, who can qualify as a person occupying a responsible official position in relation to the operation of the relevant device, or the management of the relevant activities, within the meaning of Section

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65-B(4) of the Evidence Act. PW-12, or for that matter, any other Cyber Expert from the Cyber Cell of the Police, would stand in the position of an Expert under Section 45 of the Evidence Act. His evidence is no more than opinion evidence.

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This Court is mindful of the fact that there would be some evidence, or may be a good part of it, the primary record of which may be available in the computer, or other relevant device, in the ownership and control of opposite party no.2. In case a part of the evidence in original is not available on the computer or a device in the control or possession of the applicant, secondary evidence of it, can be led unhindered by the requirement of a certificate envisaged under Section 65-B(4) of the Evidence Act. Their Lordships of the Supreme Court in a very recent decision in Shafhi Mohammad vs. State of Himachal Pradesh, (2018) 2 SCC 801 , noticing the three Judge Bench Decision in Anvar P.V. ( supra ) have explained the said decision, holding the rigor of the rule there, that secondary evidence of electronic record can only be led subject to satisfaction of the requirements of Section 65-B(4), to be ameliorated in view of another three-Judge Bench Decision of their Lordships in Tomaso Bruno and another vs. State of Uttar Pradesh, (2015) 7 SC 178 , and, layed down that in a case where electronic evidence is produced by a party, who is not in possession of the device, applicability of Sections 63 and 65 of the Evidence Act, cannot be held excluded. It is held there by their Lordships that the requirement of producing a certificate under Section 65-B(4), as a condition precedent to the leading of secondary evidence of electronic record, is attracted when such evidence is produced by a person, who is in control of the relative device, and, not when the device is with the opposite party.

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The said position of law is best expressed in the words of their Lordships in Shafhi Mohammad ( supra ), where elucidating the issue, it has been held:

¶101

¶102

“24. We may, however, also refer to the judgment of this Court in Anvar P.V. v. P.K. Basheer [ Anvar P.V. v. P.K. Basheer , (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , delivered by a three-Judge Bench. In the said judgment in para 24 it was observed that electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65-B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65-B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandhu [ State (NCT of Delhi) v. Navjot Sandhu , (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65-B of the Evidence Act.

¶103

2 5 . Though in view of the three-Judge Bench judgments in Tomaso Bruno [ Tomaso Bruno v. State of U.P. , (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] and Ram Singh [ Ram Singh v. Ram Singh , 1985 Supp SCC 611], it can be safely held that electronic evidence is admissible and provisions under Sections 65-A and 65-B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65-B(4).

¶104

26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. [ Anvar P.V. v. P.K. Basheer , (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

¶105

27. The term “electronic record” is defined in Section 2(1)( t ) of the Information Technology Act, 2000 as follows:

¶106

“ 2. (1)( t ) “ electronic record ” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;”

¶107

28. The expression “data” is defined in Section 2(1)( o ) of the Information Technology Act as follows:

¶108

“ 2. (1)( o ) “ data ” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;”

¶109

29. The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic

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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 document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4) is not always mandatory.”

¶112

(Emphasis by Court)

¶113

The question framed in view of what has been held above is answered in the manner that 'a person occupying a responsible position' within the meaning of Section 65B(4) Indian Evidence Act, 1872, for the purpose of issuing a 'certificate of authenticity' as envisaged under Section 65B(4) last mentioned in relation to 'electronic record', or information 'sent in electronic form' as defined under Section 2(1)(t) and 2(1)(r), Information Technology Act, 2000, where such electronic record, or information in electronic form, is generated and sent from a personal computer or mobile phone is the person in whose control and use the device is, relative to the period of time to which the electronic record relates, and, it would not be or include a Cyber Expert from the Investigating Agency whose opinion evidence is relied upon by the prosecution.

¶114

In the facts of the present case, about which much has been said already, there is absolutely no basis for the applicant to require the Cyber Expert from the Cyber Cell of the Police, be it PW-12, or any other Expert from the Investigating Agency, to produce a certificate envisaged under Section 65-B(4) of the Evidence Act, in order to prove documents that are electronic evidence of computer output or other device in the control of the applicant, or the second opposite party. Thus, for the added and very different reasons indicated in this judgment, the impugned order dated 08.02.2018 passed by the trial court, deserves to be affirmed.

¶115

This application, accordingly, fails and is dismissed . Interim

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¶117

order, if any, stands vacated. The trial court is directed to proceed with and conclude the trial within three months next from the date of receipt of a certified copy of this order.

¶118

Let a copy of this order be certified to the trial court by the office through the Sessions Judge, Gautam Budh Nagar at once.

¶119

Order Date :- 27.11.2018

¶120

Anoop

Barnali Baishya v. State of U.P. and Anr.

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