FINAL DRAFT.

Shafi mohhamad v. state of Himachal Pradesh

A proposal made by Mayank Shekhar, roll number 1834 of class BBA LLB.

Proposal Submitted to:- Dr. Meeta Mohini

A research proposal submitted in partial fulfillment of the course Indian Evidence act for
attaining the degree of BBA.LLB.

August, 2018.

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR, PATNA-

800001.
1.INTRODUCTION.

The Hon’ble Supreme Court (Apex Court), while deliberating upon (Act), vide its interim
decision dated 30 January 2018 in Shafi Mohammad vs. The State of Himachal Pradesh observed
that a party, who is not in possession of a device which has produced an electronic document,
cannot be required to produce a certificate under Section 65B(4) of the Act. 1It was further held
that the requirement of producing a certificate can be relaxed by the court, if it is justified in the
interest of justice. In effect, the matter stood adjourned to 13 February 2018 for the finalisation
of the road-map for use of videography in the crime scene and the Standard Operating Procedure
(SOP).

The key issue that was considered was whether a video recording of the scene of crime during
investigation should be necessary to inspire confidence in the evidence collected and in the given
context, what would be the scope of applicability of the procedural requirements under Section
65(B)(4) of the Act for furnishing a certificate in case of electronic evidence produced by a
person not in custody of the device generating such evidence?

In this recent case, the Two-Judge Bench of the Supreme Court has clarified the legal position in
context of admissibility of electronic evidence to hold that furnishing of certificate under Section
65B(4) of the Evidence Act was not a mandatory provision and its requirement could be waived
off in view of facts and circumstances and if interest of justice required the same.

In the case the core issue was whether videography of the scene of crime or scene of recovery
during investigation should be necessary to inspire confidence in the evidence? During the
course of hearing in the case apprehension was expressed on the question of applicability of
conditions under Section 65B(4) of the Evidence Act to the effect that if a statement was given
in evidence, a certificate was required in terms of the said provision from a person occupying a
responsible position in relation to operation of the relevant device or the management of relevant
activities.2

1https://www.lexology.com/library/detail.aspx?g=d258e6dd-7a24-4d91-a28a-b3681e0c0148
2https://www.livelaw.in/party-not-possession-device-electronic-document-produced-need-not-produce-
sec-65b-certificate-sc-read-order/
OBJECTIVES.

 To study the the significance of videography as a crucial means of evidence in

conjunction with the scope of applicability of procedural requirements under Section
65B(4) of the Indian Evidence Act, 1872
 To study and critically analyse the decision of the supreme court.
 To study the impact of decision.

HYPOTHESIS.

1.) The researcher on close examination believes that the requirement of producing a
certificate can be relaxed by the court, if it is justified in the interest of justice.

RESEARCH METHODOLOGY.

The research method upon which the researcher has relied upon is:-

 Doctrional research:- Doctrional research is concerned with legal prepositions and

doctrines. It is research into the law and legal concepts.
SOURCES OF DATA.

Datas collected for the purpose of this particular research is from both primary and secondary
sources.

 Primary Source:- A primary source provides direct or firsthand evidence about an event,
object, person, or work of art. It includes historical and legal documents, eyewitness
accounts, statistical data. For this proposal the researcher has taken into account decision
of supreme court, Indian evidencce act.
 Secondary Source:- Secondary sources describe, discuss, interpret, comment upon,
analyse, evaluate, summarise, and process primary sources.It includes newspaper,
magazines and books. For the proposal, the researcher has taken into account books,
magazines and journals.

REVIEW OF LITERATURE.

 The researcher has examined the primary and secondary sources of data in the project.
The primary sources is the Indian constitution, code Indian evidence act, legal provisions
and case laws. The secondary sources are books, journals, magazines, newspaper etc.

LIMITATIONS OF RESEARCH.

 Time:- The paucity of time was a major setback while making this research proposal.
 Money:- Scarcity of money to buy the books required is also another limitation.
 Scope of discussion is wide.
2.Issues and facts of the case.

Background
The Hon’ble Supreme Court (Apex Court), while deliberating upon the significance of
videography as a crucial means of evidence in conjunction with the scope of applicability of
procedural requirements under Section 65B(4) of the Indian Evidence Act, 1872 (Act), vide its
interim decision dated 30 January 2018 in Shafi Mohammad vs. The State of Himachal
Pradesh observed that a party, who is not in possession of a device which has produced an
electronic document, cannot be required to produce a certificate under Section 65B(4) of the Act.
It was further held that the requirement of producing a certificate can be relaxed by the court, if it
is justified in the interest of justice. In effect, the matter stood adjourned to 13 February 2018 for
the finalisation of the road-map for use of videography in the crime scene and the Standard
Operating Procedure (SOP).
The key issue that was considered was whether a video recording of the scene of crime during
investigation should be necessary to inspire confidence in the evidence collected and in the given
context, what would be the scope of applicability of the procedural requirements under Section
65(B)(4) of the Act for furnishing a certificate in case of electronic evidence produced by a
person not in custody of the device generating such evidence?3

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

3 https://www.khaitanco.com/PublicationsDocs/Mondaq-KCOCoverage26Feb18RB.pdf
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.

SECTION 65 B(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,4

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.

4 Section 65 B(4) of indian evidence act 1872

Key submissions advanced on scope of applicability of Section 65(B)(4) of the Act
In apprehension of the applicability of the conditions laid under Section 65B (4) of the Act to
produce a certificate in relation to operation of relevant device generating such evidence or
management of relevant activities, the following submissions were made:

1. If electronic evidence was relevant and produced by a person, who was not in custody of
the device from which the electronic document was generated, then the requirement of a
certificate under Section 65B (4) of the Act could not be mandatory.

2. Section 65B of the Act is a procedural provision to prove relevant admissible evidence.

3. Section 65B is intended to supplement the law on the point by declaring that any
information in an electronic record, covered by the said provision, was to be deemed to
be a document and admissible in any proceedings without further proof of the original.

4. Section 65B cannot be read in derogation of the existing laws on admissibility of

electronic evidence.

In order to analyse the various aspects of law of evidence, primary evidence and secondary
evidence, the Apex Court referred to following judgments:

In Ram Singh And Others vs. Col. Ram Singh5, and English-law judgments such as R. vs.
Maqsud Ali,6 and R vs. Robson7; as well from American Law,8 it was observed 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. It was further observed that such
evidence should always be regarded with some caution and assessed in the light of all the
circumstances of each case.

In Tukaram S. Dighole vs. Manikrao Shivaji Kokate,9 the Apex Court observed that new
techniques and devices are order of the day and though such devices are susceptible to

5 1985 (Supp) SCC 611

6 (1965)2 All ER 464
7 (1972) 2 ALL ER 699

8 American Jurisprudence 2d (Vol 29) Page 494

9 (2010) 4 SCC 329

tampering, no exhaustive rule could be laid down by which the admission of such evidence may
be judged.

In Tomaso Bruno and Another vs. State of Uttar Pradesh,10 the Apex Court observed that
advancement of information technology and scientific temper must pervade the method of
investigation and scientific and electronic evidence can be a great help to an investigating
agency.

In Anvar P.V vs. P.L Basheer & Others11 the Apex Court observed that electronic evidence by
way of primary evidence was covered by Section 62 of the Act to which procedure of Section
65B of the Act was not admissible12. However, for the secondary evidence, procedure of Section
65B of the Act was required to be followed and a contrary view taken in State (NCT of Delhi) vs
Navjot Sandhu that secondary evidence of electronic record could be covered under Section 63
and 65 of the Act, was not correct.

10 (2015) 7 SCC 178

11 (2014) 10 SCC 473
12 Section 62 of Indian Evidence act 1872
3.JUDGEMNT
Sandeep Sharma, J.
1. Since all these petitions arise out of same FIR, as such, same were taken up together and are
being disposed of by this common judgment.

2. By way of these bail petitions filed under Section 439 CrPC, prayer has been made on behalf
of bail petitioners for grant of regular bail in FIR No. 51/18 dated 28.4.2018 under Sections 307,
325, 451, 147, 149 and 323 IPC, registered at Police Station, Tissa, District Chamba, Himachal
Pradesh.

3. Sequel to order dated 11.6.2018, ASI Hem Raj has come present with the record. Mr. Dinesh
Thakur, learned Additional Advocate General has also placed on record status report, prepared
on the basis of investigation carried out by the investigating agency. Record perused and
returned.

4. Perusal of status report suggests that on 27.4.2018 complainant Yaseen got his statement
recorded under Section 154 CrPC, alleging therein that on 27.4.2018, at about 4 pm, bail
petitioners alongwith Kasim Deen and Manjoor entered their house unauthorizedly and gave
merciless beatings to him and his parents, as a consequence of which, he as well as his mother
and father suffered grievous injuries. Complainant and his parents were subsequently rescued by
persons residing in the neighbourhood. Police got complainant, Amina and Ali Mohammed
medically examined from Medical Officer, Tissa, who reported injuries allegedly suffered by
complainant and other victims to be simple in nature. Medical Officer, Tissa, referred victim Ali
Mohammed for CT Scan to Pt. Jawaharlal Nehru Government Medical College, Chamba and X-
ray was got conducted at aforesaid Medical College but Ali Mohammed was further referred to
Civil Hospital Nurpur for CT Scan. It appears that CT scan of Ali Mohammed was got done
from some private hospital on 28.4.2018, wherein it was reported that there is "mild displaced #
of nasal bone (lt. side)" as such, injury is grievous. Report of CT scan further reveals that there
was "small subgalead haernating in occiput region (ltd. side)" and if proper treatment is not
taken, same would be dangerous to life. Police after completing all codal formalities, arrested all
the accused on 4.5.2018 and since then they are behind the bars. Two of the accused namely
Kasim Deen and Manjoor have been already enlarged on bail by the learned Additional Sessions
Judge, Chamba.
5. Mr. N.K. Thakur, learned Senior Advocate duly assisted by Mr. Divya Raj Singh, Advocate,
while referring to the record, vehemently argued that no case, if any, is made out under Section
307 IPC, against bail petitioners because there is no material adduced on record suggestive of the
fact that complainant as well as other family members suffered grievous injuries on account of
beatings, if any, given by bail petitioners and other accused. Mr. Thakur, further contended that
medical evidence adduced on record completely belies the story of the prosecution because as
per story of prosecution, victim Ali Mohammed was given blow with "Gainti" (pickaxe) on his
head but as per report, no injury has been found on the head of the victim, rather, injury, if any,
is on the left side of nose. He further argued that as per report given by Medical Officer, Tissa,
who had first opportunity to examine the victims, all the injuries were found to be simple and
victims were not hospitalized for even an hour. Lastly, Mr. Thakur, learned Senior Advocate
contended that at present there is no independent witness, if any, associated by prosecution to
prove factum with regard to quarrel, if any, having taken place between bail petitioners and
complainant. Mr. Thakur, learned Senior Advocate further contended that all the bail petitioners
are local residents of area and there is no likelihood of their absconding from investigation or
trial, rather, they shall make themselves available for investigation and trial as and when required
and as such, they deserve to be enlarged on bail.

6. Mr. Dinesh Thakur, learned Additional Advocate General, while refuting aforesaid
submissions having been made by the learned counsel representing the bail petitioners,
contended that it is amply clear from the medial evidence adduced on record that victims
suffered grievous injuries on their persons, on account of merciless beatings given by bail
petitioners and other accused, as such, they do not deserve to be enlarged on bail. Mr. Thakur
further contended that keeping in view of gravity of offence allegedly committed by the bail
petitioners, they do not deserve to be shown any leniency rather need to be dealt with severely.
While inviting attention of this Court to medical evidence adduced on record, Mr. Thakur
contended that it has been specifically opined by medical experts that injury No. 1 i.e. displaced
nasal bone is grievous in nature and could be dangerous to life of victim namely Ali Mohammed
and as such, bail petitioners have been rightly booked under Section 307 IPC.

7. I have heard the learned counsel for the parties and gone through the record carefully.
8. Having carefully perused record/status report, this Court finds that immediately after alleged
incident, victims were taken to Medical Officer, Tissa, who after having examined them, opined
all the injuries to be simple in nature. Though, victim namely Ali Mohammed was referred to
Medical College Chamba for CT Scan, but it is not understood why he was further referred to
Zonal Hospital Nurpur. There is no mention, if any, in the record that why CT Scan of Ali
Mohammed was not conducted at Medical College, Chamba or at Nurpur. It has come only in
the report submitted by private Doctor/hospital that victim Ali Mohammed suffered grievous
injury i.e. mild displaced nasal bone (left side). No doubt, X-ray was got conducted at Chamba,
wherein injury No. 3 was termed to be grievous in nature, but this Court, taking note of the fact
that medical report adduced on record is not in consonance with the story put forth by the
prosecution that Ali Mohammed was hit on head with pickaxe, finds considerable force in the
argument of Mr. N.K. Thakur, learned Senior Advocate that at this stage, there appears to be no
definite/direct evidence, if any, against accused named in the FIR, suggestive of the fact that they
committed offence punishable under Section 307 IPC. Though aforesaid aspect of the matter is
to be considered and decided by the trial court on the basis of evidence adduced on record by
investigating agency but this Court, taking note of the fact that bail petitioners are local residents
and they have no criminal background, sees no reason to let them incarcerate in jail, for
indefinite period, especially when their guilt is yet to be proved in accordance with law.

9. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh v. State
of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be
curtailed for indefinite period, especially when his guilt has not been proved. It has further held
by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent
until found guilty. The Hon'ble Apex Court has held as under: "2. A fundamental postulate of
criminal jurisprudence is the presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are instances in our criminal law
where a reverse onus has been placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental postulate in respect of other
offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the
general rule and putting a person in jail or in a prison or in a correction home (whichever
expression one may wish to use) is an exception. Unfortunately, some of these basic principles
appear to have been lost sight of with the result that more and more persons are being
incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or
to our society."

10. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather
competing factors are required to be balanced by the court while exercising its discretion. It has
been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of
the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive
nor preventative. The Hon'ble Apex Court in Sanjay Chandra v. Central Bureau of Investigation
MANU/SC/1375/2011 : (2012)1 Supreme Court Cases 49; has been held as under:"The object of
bail is to secure the appearance of the accused person at his trial by reasonable amount of bail.
The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered
a punishment, unless it can be required to ensure that an accused person will stand his trial when
called upon. The Courts owe more than verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be innocent until duly tried and duly found
guilty. Detention in custody pending completion of trial could be a cause of great hardship. From
time to time, necessity demands that some unconvicted persons should be held in custody
pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative
test. In India, it would be quite contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any matter, upon which, he has not
been convicted or that in any circumstances, he should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary
circumstances. Apart from the question of prevention being the object of refusal of bail, one
must not lose sight of the fact that any imprisonment before conviction has a substantial punitive
content and it would be improper for any court to refuse bail as a mark of disapproval of former
conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted
person for the propose of giving him a taste of imprisonment as a lesson."
11. In Manoranjana Sinh alias Gupta v. CBI, MANU/SC/0128/2017 : (2017) 5 SCC 218, Hon'ble
Apex Court has held as under:

"This Court in Sanjay Chandra v. Central Bureau of Investigation MANU/SC/1375/2011 :

(2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing
with the issue of grant of bail, had observed that deprivation of liberty must be considered a
punishment unless it is required to ensure that an accused person would stand his trial when
called upon and that the courts owe more than verbal respect to the principle that punishment
begins after conviction and that every man is deemed to be innocent until duly tried and found
guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court
sounded a caveat that any imprisonment before conviction has a substantial punitive content and
it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether
an accused has been convicted for it or not or to refuse bail to an unconvicted person for the
purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the
jurisdiction to grant bail to an accused pending trial or in appeal against conviction is
discretionary in nature, it has to be exercised with care and caution by balancing the valuable
right of liberty of an individual and the interest of the society in general. It was elucidated that
the seriousness of the charge, is no doubt one of the relevant considerations while examining the
application of bail but it was not only the test or the factor and that grant or denial of such
privilege, is regulated to a large extent by the facts and circumstances of each particular case.
That detention in custody of under-trial prisoners for an indefinite period would amount to
violation of Article 21 of the Constitution was highlighted."

12. Needless to say object of the bail is to secure the attendance of the accused in the trial and
the proper test to be applied in the solution of the question whether bail should be granted or
refused is whether it is probable that the party will appear to take his trial. Otherwise also,
normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of
accusations, nature of evidence in support thereof, severity of the punishment, which conviction
will entail, character of the accused, circumstances which are peculiar to the accused involved in
that crime.
13. The Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and another13, has laid down
the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had
committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

14. In view of above, all the bail petitions are allowed. Petitioners are ordered to be enlarged on
bail subject to furnishing personal bonds in the sum of Rs. 1,00,000/(Rs. One Lakh) each with
one local surety each in the like amount, to the satisfaction of the learned trial Court, besides
following conditions:

(a) They shall make themselves available for the purpose of interrogation, if so required and
regularly attend the trial Court on each and every date of hearing and if prevented by any reason
to do so, seek exemption from appearance by filing appropriate application14;

(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case
in any manner whatsoever;

(c) They shall not make any inducement, threat or promises to any person acquainted with the
facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police
Officer; and

13 MANU/SC/0916/2010 : (2010) 14 SCC 496

14 https://indiankanoon.org/doc/55190488/
(d) They shall not leave the territory of India without the prior permission of the Court.

(e) They shall surrender passports, if any, held by them.

15. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed
upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
16. Any observations made hereinabove shall not be construed to be a reflection on the merits of
the case and shall remain confined to the disposal of instant petitions alone. The petitions stand
accordingly disposed of.
4.CONCLUSION AND SUGGESTION

The judgment of the Apex Court, after adverting to several judicial precedents, seems to have
restricted the applicability of the statutory certificate required under 65B(4) of the Act or may
have carved out an exception to applicability thereof. This judgment may provide sanctity to
considerably significant evidence that was earlier not taken into account in view of being
procedurally uncertified in accordance with Section 65B(4) of the Act. It will be interesting to
observe how the other court(s) interpret the view taken by the Apex Court.

In keeping with the varying views surrounding the issue pertaining to applicability of
Section 65B (4) of the Act and the legal position qua the admissibility of electronic evidence
enunciated in the judgment of Anvar P.V vs. P.K Basheer15, that has not been expressly over-
ruled till date, the ruling of the Apex Court is expected to have implications on several ongoing
proceedings and trials.

15 2014(10) SCC 473

Bibliography:

Books And Statutes:

1. Indian Evidence Act 1872

Websites:

1. https://indiankanoon.org/doc/55190488/
2. http://roundup.manupatra.in/checkdoc.aspx?sid=14529&i=1&id=MANU/HP/0638/2018
3. http://www.ijtr.nic.in/cirorders/chapter11.pdf
4. https://www.leg.state.nv.us/courtrules/nrcp.html