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2019 DIGILAW 1076 (GUJ)

Apurva Jagdishbhai Dave v. Prapti Apurva Dave

2019-10-25

A.P.THAKER

body2019
JUDGMENT : A.P. Thaker, J. 1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India challenging the legality, validity and propriety of the impugned order dated 06.01.2018 passed by the learned Principal Judge, Family Court, Gandhinagar (hereinafter be referred to as "the Trial Court") below application at Exhibit 51 filed by the petitioner in Hindu Marriage Petition No. 166 of 2001. 2. The brief facts of the present petition, in nutshell, are as under:- 2.1 The petitioner had made an application at Exhibit 38 in Hindu Marriage Petition No. 166 of 2013 wherein the petitioner wanted to play CD produced by the petitioner in the list of documents attached with Hindu Marriage Petition under Section 13 of the Hindu Marriage Act (hereinafter be referred to as "the Act") with CD contained recording of the respondent with the petitioner and his father had gone to garden in Sector 7, Gandhinagar to meet his child who born out of the wedlock of the petitioner and the respondent. 2.2 While narrating fact of that day, it is contended that on that day, Mahila Police came and he was told that in Mahila Police Station, as the respondent - wife has lodged the complaint stating that the petitioner and his father had beaten the child in the garden and, at that time, the petitioner has full details of the incident to the police personnel and also showed the mobile recording to them. As such, Mahila Police has asked the petitioner to record the statement. He has contended that, thereafter, the petitioner was constrained to make an application against the respondent as she had threatened to file the false criminal case under Section 498A of the Indian Penal Code. The petitioner has contended that he has to file an application in the custody application for modification of the order to meet the child at Mahila Police Station instead of Sector 7 Garden, in order to avoid the respondent from harming the petitioner and his father. It is his contention that he had produced CD along with transcript in the custody application on 15.09.2014. It is contended that the respondent has never raised any dispute regarding the said CD and never questioned the authenticity of the said recording. However, now the CD can be sent to the Forensic Science Laboratory for scientific examination. It is his contention that he had produced CD along with transcript in the custody application on 15.09.2014. It is contended that the respondent has never raised any dispute regarding the said CD and never questioned the authenticity of the said recording. However, now the CD can be sent to the Forensic Science Laboratory for scientific examination. He has contended that as the recording shows the misbehave of the respondent, she is trying to create unnecessary tactics to delay the trial and in not getting the CD during the pendency of the suit before the Family Court. He has also contended that in both the matters i.e. Hindu Marriage Petition and custody case, the CD has been produced by the petitioner and the copy thereof has been handed over the respondent, but there was no objection raised by the respondent. 2.3 It is contended that during examination-in-chief before the Family Court in Hindu Marriage Petition, the respondent - wife has not disputed the contents of the CD of the petitioner and she has nowhere mentioned that the CD is false and fabricated. It is his contention that during the cross-examination of the respondent, learned advocate for the petitioner was asked the question regarding the incident of 07.09.2014 and at that time, she denied having happening of such incident. As such, the petitioner wanted to play the CD in the proceedings of the Court and asked the question to the respondent either to controvert or to admit the incident of 07.09.2014 and also asked the respondent whether it was her voice or not. It is contended that in order to play the CD, the petitioner has made an application at Exhibit 38 on 16.11.2016. It is contended that the respondent has raised the objection with regard to play of the CD in the Family Court and she has filed the reply wherein she disputed the contents of the recording and stated that no such incident had occurred on 07.09.2014 and after hearing both the parties, the Court has rejected the application at Exhibit 38 vide order dated 02.01.2017. It is his contention that the order was challenged by the petitioner by way of preferring Special Civil Application No. 1950 of 2017, wherein, this Court has disposed of the said petition permitting the petitioner to file necessary application and directed the Trial Court to decide the same in accordance with law, after giving an opportunity of hearing to all concerned parties. 2.4 It is contended that being aggrieved and dissatisfied with the order dated 07.03.2017 passed by this Court in the aforesaid petition, the respondent has preferred Letters Patent Appeal No. 627 of 2017, wherein, the Division Bench of this Court vide its order dated 20.04.2017 allowed the Letters Patent Appeal and remanded the matter back to the learned Single Judge for fresh consideration. 2.5 It is the contention of the petitioner that thereafter, he approached the Capital Novus Company which is established in 2002 in Washington DC with a focus on e-Discovery and Information Governance and Compliance and having its branch office at Gandhinagar at IT SEZ Zone, at Koba and from this contention, he obtained the certificate as contemplated under Section 65B of the Evidence Act. This certificate was given after examining the residence and collected the audio recording from the computer at the residence of the petitioner. It is contended that it is very much difficult to get such certificates from Gandhinagar District and no such agencies dealing with the same and no one would want to help in such Court cases and, therefore, it was not possible for the petitioner to produce such certificate at the time of submitting the CD. According to him, the certificate can be produced at any time of the trial. It is contended that as the certificate under Section 65B of the Evidence Act was available with the petitioner, he thought it fit to produce the said certificate before the Family Court and he did not press Special Civil Application No. 1950 of 2017 and sought permission for withdrawal of the petition, in order to make the application before the Family Court, which request was granted by the Court. Against that order, respondent had filed Letters Patent Appeal No. 1571 of 2017 which came to be dismissed by the Division Bench of this Court vide order dated 20.09.2017. Against that order, respondent had filed Letters Patent Appeal No. 1571 of 2017 which came to be dismissed by the Division Bench of this Court vide order dated 20.09.2017. He has contended that thereafter, the petitioner had moved an application at Exhibit 51 for production of documents and after hearing both the sides, the Family Court passed the impugned order on 06.01.2018 rejecting the application of the petitioner. 2.6 The facts of Special Civil Application No. 17612 of 2018 are that the petitioner has challenged the order dated 28.09.2009 passed by the learned Principal Judge, Family Court, Gandhinagar below application Exhibit 1 being Civil Misc. Application No. 3 of 2017 in Hindu Marriage Petition No. 166 of 2013 whereby the prayer of the petitioner for custody of the daughter Harishree has been rejected by the Trial Court. It is inter alia contended that there is dispute between the husband and wife and due to arrogant nature of the wife, the dispute has arisen and though there was direction of visitation right to the husband, she is not allowing the husband to meet the minor daughter. It is contended that the Trial Court has materially erred in dismissing the said application. It is prayed to allow the present petition and to quash and set aside the impugned order dated 29.09.2019 passed by the Trial Court. 3. Heard Mr. Jeet Bhatt, learned counsel for the petitioner. Whereas, party-in-person-respondent has not chosen to remain present before the Court. 4. Mr. Jeet Bhatt, learned advocate for the petitioner has submitted the same facts which are narrated in the memo of both the petitions. He has submitted that the Trial Court has committed serious error of law and facts in disallowing the applications at Exhibit 51 and 38 for production of the documents and cross-examination of the respondent - wife. According to him, under Section 65(b) of the Evidence Act, the certificate can be produced at any time and production of such certificate, at later stage, is merely irregularity, but not illegality. According to him, even as per the decision of the Apex Court in the Case of Bipin Shantilal Panchal Vs. State of Gujarat, reported in 2001 (2) GLH 545 , the CD could have been exhibited. According to him, even as per the decision of the Apex Court in the Case of Bipin Shantilal Panchal Vs. State of Gujarat, reported in 2001 (2) GLH 545 , the CD could have been exhibited. Regarding Special Civil Application No. 17612 of 2018, he has submitted that this is a case of custody of minor and the husband has filed the said petition for custody of minor under Section 26 of the Hindu Marriage Act and interim order was passed by the Trial Court but the wife is not abide by the said order and the petitioner has sought for visitation right of the minor daughter and the Trial Court has committed an error in dismissing the application at threshold. He has prayed to allow both the petitions. 5. So far as Special Civil Application No. 3162 of 2018 is concerned, it appears that the Trial Court has dismissed the application on the ground that certificate under Section 65B of the Evidence Act has been produced at later stage and not at the time when the original document was produced. Now, it is an admitted fact that under Section 65B of the Evidence Act, the electronic document can be produced along with the certificate which is prescribed under the Act. Admittedly, in this case, the certificate has not been produced, at the relevant time, but has been produced later on. At this stage, it is worthwhile to refer to Section 65B of the Evidence Act, which reads as under:- 65B. Admissibility of electronic records: (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. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: - (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; (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; (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 (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. (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 - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (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. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (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; (c) dealing with any of the matters to which the conditions mentioned in sub-section (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 sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (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; (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; (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 there rom by calculation, comparison or any other process." These are the provisions under the Evidence Act relevant to the issue under discussion. 6. In view of the provisions of Section 65B of the Evidence Act, the Supreme Court in the case of Anwar P.V. Vs. 6. In view of the provisions of Section 65B of the Evidence Act, the Supreme Court in the case of Anwar P.V. Vs. P.V. Basheer, reported in (2014) 10 SCC 473 has held and observed that 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. The Apex Court has also held and observed that 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 there from which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B 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 on electronic record with reference to Section 59, 65A and 65B 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 of the conditions in Section 65B of the Evidence Act. The Court has held that the CDs were not primary or electronic evidence and, therefore, while requirement of Section 65B, certification needed to be completed, in absence of which the same could not be admitted as evidence. 7. Though in the aforesaid case, clarified the position relating to Section 65B of the Evidence Act, certification to a large extent, however, it did not specify as to whether the said certificate has to be filed with the charge-sheet or if it can be supplied at a later state, during the trial. 7. Though in the aforesaid case, clarified the position relating to Section 65B of the Evidence Act, certification to a large extent, however, it did not specify as to whether the said certificate has to be filed with the charge-sheet or if it can be supplied at a later state, during the trial. Though, there is no authoritative pronouncement of the Supreme Court on this issue, there are two decisions of the Delhi High Court and the Rajasthan High Court. Both the Courts have taken in the view that Section 65B certificate can be provided at a later stage and it is not an illegality going to the root of the matter. In the case of Paras Jain Vs. State of Rajasthan, reported in, the Rajasthan High Court has held and observed in para-23 as under:- 23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured along with the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the roof of the matter and is curable. It is also pertinent to note that certificate was produced along with the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form." 8. The Delhi High Court has, in the case of Kundan Singh Vs. State, reported in, held and observed in para-40 as under:- 40. The expression used in the said paragraph is when the electronic record is "produced in evidence". Earlier portion of the same sentence emphasises the importance of certificate under Section 65-B and the ratio mandates that the said certificate must accompany the electronic record when the same is "produced in evidence". The expression used in the said paragraph is when the electronic record is "produced in evidence". Earlier portion of the same sentence emphasises the importance of certificate under Section 65-B and the ratio mandates that the said certificate must accompany the electronic record when the same is "produced in evidence". To us, the aforesaid paragraph does not postulate or propound a ratio that the computer output when reproduced as a paper printout or on optical or magnetic media must be simultaneously certified by an authorised person under sub-section (4) to Section 65-B. This is not so stated in Section 65-B or sub-section (4) thereof. of course, it is necessary that the person giving the certificate under sub-section (4) to Section 65-B should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in sub-section (2), identify the electronic record, describe the manner in which "computer output" was produced and also give particulars of the device involved in production of the electronic record for the purpose of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer." 9. In view of the above decisions, this Court is of the opinion that the impugned order of the Family Court regarding non-submissions of the certificate at the time of production of electronic record is not legally sustainable. The document ought to have been permitted to be produced in the matter and after proper verification, it could have been exhibited. Therefore, the impugned order of the Trial Court is liable to be quashed and set aside and the electronic record is liable to be taken on record. It is not on the part of the petitioner to prove the same and after proper verification of the document, it could be placed on record. For that purpose, the petitioner could be called for further cross-examination. 10. Now, so far as Special Civil Application No. 17621 of 2018 is concerned, on perusal of the impugned order, it appears that the petitioner has not led any evidence and his right for leading the evidence has already been closed. For that purpose, the petitioner could be called for further cross-examination. 10. Now, so far as Special Civil Application No. 17621 of 2018 is concerned, on perusal of the impugned order, it appears that the petitioner has not led any evidence and his right for leading the evidence has already been closed. Under that circumstances, in absence of the evidence led by the petitioner, the Trial Court has passed the impugned order rejecting the application which cannot be said to be perverse one and parties do not chose to led evidence. In such case, if the application is rejected, the party cannot blame or raise any issue at later stage. Therefore, so far as Special Civil Application No. 17621 of 2018 is concerned, it is devoid of merits. 11. In view of the above, Special Civil Application No. 3162 of 2018 is allowed. The Trial Court is directed to take on record the electronic record and after proper verification, it could be exhibited. The Court may, if required, call for other side for further cross-examination. Rule is made absolute. 12. Special Civil Application No. 17621 of 2018 is dismissed, accordingly. Rule is discharged.