This is the order which cited Shafhi judgment here, to larger bench for reconsideration, since there was a conflicting precedent, in Anvar P,V.
Here is the last Order, wherein Arguments have concluded and the Judgment was reserved.
Here is the final Judgment authored by Justice R.F.Nariman.
Relevant portions:
From Para 52: Accused must be given copy of all documents that prosecution relies upon.
52. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 of the CrPC, which reads as follows, is mandatory. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
From Para 54: When should the certificate u/s 65B be filed?
54. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 of the CrPC or Section 165 of the Evidence Act.
Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case – discretion to be exercised by the Court in accordance with law.
From Para 59,
59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.
Para 17 of the separate concurring opinion penned by V. Ramasubramanian, J is as follows:
Following the above precedents, this Court also held in S. Pratap Singh v. State of Punjab (1964) 4 SCR 733, AIR 1964 SC 72, Yusufalli Esmail Nagree v. State Of Maharashtra . (1967) 3 SCR 720, AIR 1968 SC 147, 1968 Cri LJ 103, N. Sri Rama Reddy v. V.V. Giri (1970) 2 SCC 340, AIR 1971 SC 1162, R. M. Malkani v. State Of Maharashtra . (1973) 1 SCC 471, AIR 1973 SC 157, Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (1976) 2 SCC 17, Ram Singh v. Ram Singh 1985 Supp SCC 611, AIR 1986 SC 3 and Tukaram S. Dighole v. Manikrao Shivaji Kokate . (2010) 4 SCC 32912, that tape records of conversations and speeches are admissible in evidence under the Evidence Act, subject to certain conditions. In Ziyauddin Burhanuddin Bukhari (1976) 2 SCC 17 and Tukaram S. Dighole (2010) 4 SCC 32912 this Court further held that tape records constitute “document” within the meaning of the expression under Section 3 of the Evidence Act. Thus, without looking up to the lawmakers to come up with necessary amendments from time to time, the courts themselves developed certain rules, over a period of time, to test the authenticity of these documents in analogue form and these rules have in fact, worked well.
Citations: [(2020) 3 SCC 216] [(2020) 7 SCC 1], [AIR 2020 SUPREME COURT 4908], [AIRONLINE 2020 SC 641]
Other Source links:
https://indiankanoon.org/doc/172105947/
https://www.casemine.com/judgement/in/5f10bc933321bc1d0ef58d1d
https://lawbhoomi.com/arjun-panditrao-khotkar-v-kailash-kushanrao-gorantyal/
https://lawfyi.io/arjun-panditrao-khotkar-vs-kailash-kushanrao-gorantyal-on-14-july-2020-case-summary/
https://www.scconline.com/blog/post/2020/07/14/sc-clarifies-law-on-admissibility-of-electronic-evidence-without-certificate-under-section-65b-of-evidence-act-1872/
The Bombay High Court judgment which was challenged at Supreme Court is here.
