Shafhi Mohammad v State of Himachal Pradesh

Facts

The matter arose out of proceedings concerning the use of videography in crime-scene investigation, in which the Supreme Court considered the admissibility of electronic evidence and the certification requirement under Section 65B of the Evidence Act. The question of whether a party who is not in possession or control of the device that generated the electronic record could nonetheless lead such evidence without a Section 65B(4) certificate was placed before the two-Judge Bench. The Court took up the broader legal issue of the scope and mandatory nature of Section 65B(4) certification.

Issues

• Whether a certificate under Section 65B(4) of the Indian Evidence Act is a mandatory pre-condition for the admissibility of electronic/secondary electronic evidence in all cases.
• Whether a party who is not in possession or control of the device from which the electronic record is produced can be required to produce a Section 65B(4) certificate.

Arguments

It was urged that insisting on a Section 65B(4) certificate in every case would defeat the ends of justice where a party leading authentic electronic evidence has no possession or control over the device that generated it and therefore cannot procure the certificate. The contrary position was that Sections 65A and 65B constitute a complete code for the proof of electronic records and the certificate is a mandatory condition of admissibility.

Held

The Court held that Sections 65A and 65B of the Evidence Act cannot be treated as a complete code on the subject and must be read alongside Sections 63 and 65 dealing with secondary evidence. It held that the requirement of a certificate under Section 65B(4) is procedural and can be relaxed by the court wherever the interest of justice so justifies. Where the electronic device is not in the possession or control of the party leading the evidence, that party cannot be required to produce a Section 65B(4) certificate, since the law does not compel a person to do the impossible (lex non cogit ad impossibilia). The Court reasoned that this clarification did not conflict with the three-Judge Bench decision in Anvar P.V. v. P.K. Basheer, which it read as confined to situations where the certificate could be procured by the person in possession of the device.

Ratio decidendi

The certificate requirement under Section 65B(4) is procedural and not an inflexible mandatory condition; a party not in possession or control of the device generating the electronic record is exempt from producing it, and the court may relax the requirement where justice so demands, applying Sections 63 and 65 read with Section 65A/65B.

Significance

A landmark (though later disapproved) clarification on the admissibility of electronic evidence: it carved out an exception to the mandatory certificate rule for parties without device possession. Its reading of Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 was subsequently held to be per incuriam and overruled by the three-Judge Bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, which restored the mandatory nature of the Section 65B(4) certificate (subject to limited exceptions where the party genuinely cannot produce it). Under the new law the same scheme is carried forward in Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (with the certificate requirement in Section 63(4)), so the Arjun Panditrao position—not Shafhi Mohammad—governs electronic-record certification under the BSA.

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