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2019 DIGILAW 674 (MP)

Yogendra Sangle v. State of M. P.

2019-09-18

VIVEK AGRAWAL

body2019
ORDER 1. Petitioner has filed this petition being aggrieved by order dated 24.7.19 passed by the Third Additional Sessions Judge, Dabra, rejecting an application under section 65 of the Evidence Act on the ground that petitioner had not produced the source from which photographs as were brought by him on record were obtained. 2. Petitioner's contention is that he only wants to put the other party to cross-examination as to whether such photographs showing presence of the prosecutrix were actually taken in her presence or not. He has placed reliance on the judgment of the Supreme Court in case of Shafi Mohammad v. State of Himachal Pradesh, as reported in (2018) 2 SCC 801 wherein the gist is that advantages gained by new techniques and new devices cannot be denied to be used and in this regard paragraph 21, 29 and 30 are relevant which are reproduced as under: "21. We have been taken through certain decisions which may be referred to. In Ram Singh and others v. Col. Ram Singh, 1985 (Supp) SCC 611, a Three-Judge Bench considered the said issue. English Judgments in R. v. Maqsud Ali, (1965) 2 All ER 464, and R. v. Robson, (1972) 2 ALL ER 699, and American Law as noted in American Jurisprudence 2d (Vol.29) page 494, were cited with approval to the effect that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording, it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant. 29. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant. 29. 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 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(4) is not always mandatory. 30. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies. 3. It is also submitted that if this opportunity is not extended to the petitioner, then he will have to recall the witness in case this revision is allowed in future date by the Court and that will add to the cost and duration of the litigation. Learned counsel for the petitioner on his own submits that he be allowed to put these questions subject to the final decision by the trial Court as to the validity of production of such photographs. 4. In view of such innocuous prayer and looking to the judgment rendered by the Supreme Court in case of Shafi Mohammad (supra), revision is allowed. 4. In view of such innocuous prayer and looking to the judgment rendered by the Supreme Court in case of Shafi Mohammad (supra), revision is allowed. Trial Court is directed to permit the petitioner to produce such photographs and crossexamine the prosecutrix in relation to such photographs. Afterwards final decision be taken by the trial Court as to the admissibility of such photographs and such cross-examination will be subject to such final decision. With the aforesaid, revision is disposed of.