CERTIFICATE OF 65B COMPULSORY FOR ELECTRONIC EVIDENCE BUT OBJECTION NOT RAISED IN TRIAL COURT
He placed reliance on Padman v. Hanwanta MANU/PR/0104/1915 : AIR 1915 PC 1 in which the Privy Council held that objections regarding admissibility of a document must be raised in the Trial Court. Mr. Sood contended that there can be two classes of objections regarding admissibility of documents. The first class is that a document is per se inadmissible in evidence. The second is where the objection is regarding the method or mode of the proof of the document. He submitted that the objection of the Accused in this case is regarding the mode or method of proof as it cannot be said that the CDRs are per se inadmissible in evidence.
It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements Under Section 161 of the Code of Criminal Procedure 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.
Call Detail Records (CDRs) did not fall in the said category of documents. An objection that CDRs were unreliable due to violation of the procedure prescribed in Section 65B(4) of Act could not be permitted to be raised at this stage as the objection relates to the mode or method of proof. All the criminal Courts in this country are bound to follow the law as interpreted by present Court. Because of the interpretation of Section 65B of Act in Navjot Sandhu case, there was no necessity of a certificate for proving electronic records. Electronic records without a certificate might have been adduced in evidence. There was no doubt that the judgment of present Court in Anvar’s case has to be retrospective in operation unless the judicial tool of prospective overruling was applied. However, retrospective application of the judgment was not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections were taken by the Accused at the appellate stage. Attempts would be made to reopen cases which have become final. [27] and[32]
Sonu vs. State of Haryana (18.07.2026 - SC) : MANU/SC/0835/2017