Andhra Pradesh High Court – Amravati
Unknown vs State Of on 12 March, 2026
Author: K Suresh Reddy
Bench: K Suresh Reddy
1
APHC010726302018
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3566]
(Special Original Jurisdiction)
THURSDAY,THE TWELFTH DAY OF MARCH
TWO THOUSAND AND TWENTY SIX
PRESENT
THE HONOURABLE SRI JUSTICE K SURESH REDDY
THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA
I.A.No.01 of 2025
in
CRIMINAL APPEAL NO: 2639/2018
Between:
1. PASUPULETI SRINIVAS @ MYKEL JONSON @ MYKEL SRINU,
CASTE-TELAGA, R/O. VADDAVALLI, SATTENAPALLI, GUNTUR
DISTRICT, NOW ACCUSED IS IN CENTRAL PRISON
RAJAHMAHENDRAVARAM, CT.NO. 6455
...APELLANT
AND
1. THE STATE OF ANDHRA PRADESH, rep., by its Public Prosecutor,
High Court of Judicature at Hyderabad For the State of Telangana and
the State of A.P.
..RESPODENT
IA NO: 1 OF 2025
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may be
pleased pleased to permit the Prosecution to adduce additional evidence for
the purpose of exhibiting certificate issued by PW-8 under Section 65-B of
the Indian Evidence Act pertaining to DVD (MO-4) .
2
Counsel for the Appellant:
1. K V DURGA DIVAKARR
2. LEGAL AID
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THURSDAY,THE TWELFTH DAY OF MARCH
TWO THOUSAND AND TWENTY SIX
SPECIAL DIVISION BENCH
PRESENT
HONOURABLE SRI JUSTICE K SURESH REDDY
And
THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA
I.A.No.01 of 2025
in
CRIMINAL APPEAL No.2639 of 2018
ORDER :
(Per Sri Justice A. Hari Haranadha Sarma)
Appeal in Crl.A.No.2639 of 2018 is filed by the accused No.3,
questioning the judgment in Sessions Case No.330 of 2012 on the file of the
Special Judge for SC/ST (POA) Act-Cum- IV Additional District and Sessions
Judge, Guntur, dated 09.02.2018.
2. This is an application filed in terms of Section 432 of BNSS
corresponding to Section 391 of Cr.P.C. by the respondent-State, in
Crl.A.No.2639 of 2018, with a prayer to permit the prosecution to adduce
additional evidence for the purpose of exhibiting a certificate issued by PW.8
under Section 65-B of the Indian Evidence Act pertaining to DVD – MO.4.
3. Under the impugned judgment, the accused/appellant was found
guilty for the offences under Sections 120-B(1) and 302 IPC and he was
4
sentenced to undergo imprisonment for LIFE and to pay fine of Rs.1000/-, in
default of payment of fine, directed to undergo Simple Imprisonment for a
period of Six months.
4. The case of the prosecution in brief is that one Khambala
Koteswara Rao, (herein after referred as ‗the deceased’), and the accused 1
to 4 are residents of Sattenapalli. Accused are sufferers in the hands of the
deceased. A6 is the Assistant of A1. All the accused bore grudge against
the deceased and conspired together to eliminate the deceased and in
execution of the same, there was an attack against the deceased on
14.10.2010 at about 7.30p.m. at Balaji Sweet Shop at Sattenapalli, where
C.C. Camera was arranged at the shop to which DVR-MO.1 was affixed.
The incident captured in MO.1 was transferred to DVD-MO.4. MO.2 is the
adopter. MO.3 is BPL TV, through which contents of the DVD are watched.
5. Apart from the evidence of eye witnesses the prosecution relied
on electronic evidence – MO.1 to MO.4 also. To substantiate the electronic
evidence, prosecution relied on the evidence of PW.2, who installed the
electronic equipment and PW.8, who is the owner of the Sweet shop and
custodian of the electronic record.
6. The electronic evidence was marked subject to the objection
particularly compliance of the Section 65-B(4) of the Evidence Act.
7. Learned Sessions Judge found that the electronic record is
admissible as an evidence by referring to Shafi Mohammad Vs. State of
Himachal Pradesh and Other1‘s case.
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2018 (2) SCC 801:2018 SCC Online SC 56
5
8. Learned Additional Public Prosecutor submitted that Section 65-
B certificate is issued by owner of the gadget ought to have been produced,
but due to inadvertence and oversight the same was not done during the trial,
which is neither intentional nor deliberate one. Learned Trial Court relied on
the footage rejecting the objection. The objection as to electronic evidence is
pertaining to the mode of proof of secondary evidence which is curable. The
legal requirement of adducing secondary evidence/electronic evidence along
with a Certificate under Section 65-B of Indian Evidence Act, is purely
procedural in nature. Basing on the minor lapse if any in that regard, valuable
evidence in the case covered by MO.1 and MO.4 cannot be thrown aside.
Therefore, the certificate enclosed may be received as additional evidence.
Objection of the Respondent/ accused/appellant:-
9. The present application is aimed to fill the lacuna and patch of
weak portions of the prosecution case. The additional evidence can be
allowed only when the appellate Court finds it absolutely necessary. The
present effort is nothing but putting the Clock back after conclusion of the
Trial and the same is not permissible. The document under MO.4 -DVD, is
secondary evidence, for its admissibility, Certificate under Section 65-B is
mandatory. MO.4 was marked subject to objection. Therefore, at this
belated stage long after the Trial, effort to mark Section 65-B Certificate,
cannot be permitted.
10. Extensive arguments are submitted by both sides.
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11. The points that arise for determination in this application are:-
1) Whether the Certificate filed in terms of Section 65-B by the
prosecution can be received as additional evidence and basing
of such certificate, whether contents of M.O.4 relied on by the
prosecution can be appreciated?
2) What is the result of I.A.?
Point No.1:
Permissibility of additional evidence at appeal stage:-
12. As per Section 391 of Cr.P.C., the appellate Court shall feel that
additional evidence is necessary. It is settled law that the power under
Section 391 Cr.P.C. is exceptional one and the same cannot be used to fill
the gaps. The Hon’ble Apex Court In Rambhau and Another Vs. State of
Maharasthra2 vide paras 2 to 4 observed as follows:-
“2. A word of caution however, ought to be introduced for guidance, to
wit: that this additional evidence cannot and ought not to be
received in such a way so as to cause any prejudice to the accused.
It is not a disguise for a retrial or to change the nature of the case
against the accused. This Court in the case of Rajeswar Prasad
Misra v. State of W.B. [AIR 1965 SC 1887 : 1965 Cri LJ 817] in no
uncertain terms observed that the order must not ordinarily be made
if the prosecution has had a fair opportunity and has not availed of
it. This Court was candid enough to record however, that it is the
concept of justice which ought to prevail and in the event, the same
dictates exercise of power as conferred by the Code, there ought
not to be any hesitation in that regard.
3. Be it noted that no set of principles can be set forth for such an
exercise of power under Section 391, since the same is dependent
upon the fact situation of the matter and having due regard to the
concept of fair play and justice, well-being of the society.
2
2001 (4) SCC 759
7
4. Incidentally, Section 391 forms an exception to the general rule
that an appeal must be decided on the evidence which was before
the trial court and the powers being an exception shall always have
to be exercised with caution and circumspection so as to meet the
ends of justice. Be it noted further that the doctrine of finality of
judicial proceedings does not stand annulled or affected in any way
by reason of exercise of power under Section 391 since the same
avoids a de novo trial. It is not to fill up the lacuna but to subserve
the ends of justice. Needless to record that on an analysis of the
Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27
of the Civil Procedure Code.‖
13. The electronic evidence in the form of MO.1-DVR is placed
before this Court. The contents of MO.1 are copied to MO.4 in the form of
DVD. Along with MO.4 Certificate in terms of Section 65-B should have been
produced earlier. What prevented from obtaining Certificate is a question, for
which the answer is that, due to oversight the same could not be filed. Now
filing a certificate of the year 2025 in respect of copying of contents to MO.4
taken place long back, whether permissible is a serious question. The
person, issued the certificate is PW.8 and he was examined before the Court,
even then prosecution did not realize the necessity of the certificate although
objection was raised. The present effort is certainly to cure the defect in
respect of MO.4. The admissibility of MO.4 has been in serious dispute. As
an answer for the objection in respect of appreciating the MO.4, the present
application is filed in this appeal.
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Electronic Evidence vis-Ã -vis 65-B Evidence Act:-
14. Jurisprudence relating to Section 65-B:-
A. Statutory guidance:
(i) 65B. Admissibility of electronic records.:-
(1) Notwithstanding anything contained in this Act, any records.
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 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
9period 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.
(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, 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.
(5) For the purposes of this section,- (a)information shall be taken
to be supplied to a computer if it is supplied thereto in any appropriate form
and whether it is so supplied directly or (with or without human intervention)
by means of any appropriate equipment;
(b)whether in the course of activities carried on by any official,
information is supplied with a view to its being stored or processed for the
purposes of those activities by a computer operated otherwise than in the
course of those activities, that information, if duly supplied to that computer,
shall be taken to be supplied to it in the course of those activities;(c)a
computer output shall be taken to have been produced by a computer
10
whether it was produced by it directly or (with or without human intervention)
by means of any appropriate equipment.
Explanation. – For the purposes of this section any reference to information
being derived from other information shall be a reference to its being derived
therefrom by calculation, comparison or any other process.]
[ii] Now provided under Section 63 in Bharatiya Sakshya
Adhiniyam, 2023.
B. Precedential guidance with regard to necessity and stage of
production of Section 65-B Certificate: –
(i) Hon’ble Apex Court in a case between Chandrabhan Sudam
Sanap v. State of Maharashtra3, has considered the issue at length. Para
44 to 59 are covering the entire field. Relevant paragraphs i.e., paras 44,
46,47, 56, 57 are as follows:-
44. However, on 18-9-2014, in Anvar P.V. v. P.K. Basheer [Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] , Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu,
(2005) 11 SCC 600 : 2005 SCC (Cri) 1715] was overruled. In Anvar P.V. [Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC
(Cri) 24 : (2015) 1 SCC (L&S) 108] , it was held as under: (Anvar P.V. case [Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC
(Cri) 24 : (2015) 1 SCC (L&S) 108] , SCC p. 486, para 22)
―22. The evidence relating to electronic record, as noted hereinbefore, being a
special provision, the general law on secondary evidence under Section 63 read
with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus
non derogant, special law will always prevail over the general law. It appears, the
court omitted to take note of Sections 59 and 65-A dealing with the admissibility of
electronic record. Sections 63 and 65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly governed by Sections 65-
A and 65-B. To that extent, the statement of law on admissibility of secondary
evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu
case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri)
1715] , does not lay down the correct legal position. It requires to be overruled and
we do so. An electronic record by way of secondary evidence shall not be
3
(2025) 7 SCC 401 : 2025 SCC OnLine SC 174 at page 425
11
admitted in evidence unless the requirements under Section 65-B are satisfied.
Thus, in the case of CD, VCD, chip, etc. the same shall be accompanied by the
certificate in terms of Section 65-B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that electronic record, is
inadmissible.‖
45. ….
46. In Shafhi Mohammad v. State of H.P. [Shafhi Mohammad v. State of H.P.,
(2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC
(Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] (delivered on 30-1-
2018), a two-Judge Bench of this Court after noticing Anvar P.V. [Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC
(Cri) 24 : (2015) 1 SCC (L&S) 108] held that a party who is not in possession of
device from which the document is produced cannot be required to produce the
certificate under Section 65-B(4) of the Evidence Act. It also held that applicability
of requirement of certificate being procedural can be relaxed by the court wherever
interest of justice so justifies.
47. In Sonu v. State of Haryana [Sonu v. State of Haryana, (2017) 8 SCC 570
: (2017) 3 SCC (Cri) 663] , (delivered on 18-7-2017) the following paragraphs
being crucial are extracted hereinbelow: (SCC pp. 583-85, paras 30-32)
―30. In R.V.E. Venkatachala Gounder [R.V.E. Venkatachala
Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752] , this
Court held as follows: (SCC p. 764, para 20)
‗20. … Ordinarily, an objection to the admissibility of evidence
should be taken when it is tendered and not subsequently. The
objections as to admissibility of documents in evidence may be
classified into two classes: (i) an objection that the document which is
sought to be proved is itself inadmissible in evidence; and (ii) where
the objection does not dispute the admissibility of the document in
evidence but is directed towards the mode of proof alleging the same
to be irregular or insufficient. In the first case, merely because a
document has been marked as ―an exhibit‖, an objection as to its
admissibility is not excluded and is available to be raised even at a
later stage or even in appeal or revision. In the latter case, the
objection should be taken when the evidence is tendered and once
the document has been admitted in evidence and marked as an
exhibit, the objection that it should not have been admitted in
evidence or that the mode adopted for proving the document is
irregular cannot be allowed to be raised at any stage subsequent to
the marking of the document as an exhibit. The later proposition is a
rule of fair play. The crucial test is whether an objection, if taken at
the appropriate point of time, would have enabled the party tendering
the evidence to cure the defect and resort to such mode of proof as
would be regular. The omission to object becomes fatal because by
his failure the party entitled to object allows the party tendering the
evidence to act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a prompt
12
objection does not prejudice the party tendering the evidence, for two
reasons: firstly, it enables the court to apply its mind and pronounce
its decision on the question of admissibility then and there; and
secondly, in the event of finding of the court on the mode of proof
sought to be adopted going against the party tendering the evidence,
the opportunity of seeking indulgence of the court for permitting a
regular mode or method of proof and thereby removing the objection
raised by the opposite party, is available to the party leading the
evidence. Such practice and procedure is fair to both the parties. Out
of the two types of objections, referred to hereinabove, in the latter
case, failure to raise a prompt and timely objection amounts to waiver
of the necessity for insisting on formal proof of a document, the
document itself which is sought to be proved being admissible in
evidence. In the first case, acquiescence would be no bar to raising
the objection in superior court.’
31. It would be relevant to refer to another case decided by this
Court in P.C. Purushothama Reddiar v. S. Perumal [P.C.
Purushothama Reddiar v. S. Perumal, (1972) 1 SCC 9] . The earlier
cases referred to are civil cases while this case pertains to police
reports being admitted in evidence without objection during the trial.
This Court did not permit such an objection to be taken at the
appellate stage by holding that: (SCC p. 15, para 19)
‗19. Before leaving this case it is necessary to refer to one of the
contentions taken by Mr Ramamurthi, learned counsel for the
respondent. He contended that the police reports referred to earlier
are inadmissible in evidence as the Head Constables who covered
those meetings have not been examined in the case. Those reports
were marked without any objection. Hence it is not open to the
respondent now to object to their admissibility….’
32. 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 65-B(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 161CrPC, 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
13
prescribed in Section 65-B(4) cannot be permitted to be raised at this
stage as the objection relates to the mode or method of proof.‖
(emphasis in original)
…..
56. The reference came to be answered in the judgment in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal [Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC (Civ) 1 : (2020) 3 SCC
(Cri) 1 : (2020) 2 SCC (L&S) 587] by a three-Judge Bench in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal & others. The relevant portions of
which are as under: (SCC pp. 46, 50, 52, 56 & 62, paras 45-47, 52, 56, 61 &
73)
―45. Thus, it is clear that the major premise of Shafhi Mohammad [Shafhi
Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2
SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1
SCC (Cri) 865] that such certificate cannot be secured by persons who are not
in possession of an electronic device is wholly incorrect. An application can
always be made to a Judge for production of such a certificate from the
requisite person under Section 65-B(4) in cases in which such person refuses
to give it.
46. Resultantly, the judgment dated 3-4-2018 of a Division Bench of this
Court reported as Shafhi Mohd. v. State of H.P. [Shafhi Mohd. v. State of H.P.,
(2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704] , in following the law incorrectly
laid down in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2
SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ)
351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] , must also be, and is
hereby, overruled.
47. However, a caveat must be entered here. The facts of the present
case show that despite all efforts made by the respondents, both through the
High Court and otherwise, to get the requisite certificate under Section 65-B(4)
of the Evidence Act from the authorities concerned, yet the authorities
concerned wilfully refused, on some pretext or the other, to give such
certificate. In a fact-circumstance where the requisite certificate has been
applied for from the person or the authority concerned, and the person or
authority either refuses to give such certificate, or does not reply to such
demand, the party asking for such certificate can apply to the court for its
production under the provisions aforementioned of the Evidence Act, CPC or
CrPC. Once such application is made to the court, and the court then orders
or directs that the requisite certificate be produced by a person to whom it
sends a summons to produce such certificate, the party asking for the
certificate has done all that he can possibly do to obtain the requisite
certificate….
***
52. We may hasten to add that Section 65-B does not speak of the [Ed.:
The word between two asterisks has been emphasised in original.] stage [Ed.:
The word between two asterisks has been emphasised in original.] at which
such certificate must be furnished to the Court. In Anvar P.V. [Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1
SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , this Court did observe that such
certificate must accompany the electronic record when the same is produced
in evidence. We may only add that this is so in cases where such certificate
14could be procured by the person seeking to rely upon an electronic record.
However, in cases where either a defective certificate is given, or in cases
where such certificate has been demanded and is not given by the person
concerned, the Judge conducting the trial must summon the person/persons
referred to in Section 65-B(4) of the Evidence Act, and require that such
certificate be given by such person(s). This, the trial Judge ought to do when
the electronic record is produced in evidence before him without the requisite
certificate in the circumstances aforementioned. This is, of course, subject to
discretion being exercised in civil cases in accordance with law, and in
accordance with the requirements of justice on the facts of each case. When it
comes to criminal trials, it is important to keep in mind the general principle
that the accused must be supplied all documents that the prosecution seeks to
rely upon before commencement of the trial, under the relevant sections of
CrPC.
***
56. 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 311CrPC
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.
***
61. We may reiterate, therefore, that the certificate required under Section
65-B(4) is a condition precedent to the admissibility of evidence by way of
electronic record, as correctly held inAnvar P.V. [Anvar P.V. v. P.K. Basheer,
(2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1
SCC (L&S) 108] , and incorrectly ―clarified‖ in Shafhi Mohammad [Shafhi
Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2
SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1
SCC (Cri) 865] . Oral evidence in the place of such certificate cannot possibly
suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the
hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426]
, which has been followed in a number of the judgments of this Court, can also
be applied. Section 65-B(4) of the Evidence Act clearly states that secondary
evidence is admissible only if led in the manner stated and not otherwise. To
hold otherwise would render Section 65-B(4) otiose.
***
73. The reference is thus answered by stating that:
73.1. Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015)
1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , as
clarified by us hereinabove, is the law declared by this Court on Section 65-B
of the Evidence Act. The judgment in Tomaso Bruno v. State of U.P. [Tomaso
Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , being per
incuriam, does not lay down the law correctly. Also, the judgment in Shafhi
Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2
15SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC
(Cri) 860 : (2018) 1 SCC (Cri) 865] and the judgment dated 3-4-2018 reported
as Shafhi Mohd. v. State of H.P. [Shafhi Mohd. v. State of H.P., (2018) 5 SCC
311 : (2018) 2 SCC (Cri) 704] , do not lay down the law correctly and are
therefore overruled.
73.2. The clarification referred to above is that the required certificate
under Section 65-B(4) is unnecessary if the original document itself is
produced. This can be done by the owner of a laptop computer, computer
tablet or even a mobile phone, by stepping into the witness box and proving
that the device concerned, on which the original information is first stored, is
owned and/or operated by him. In cases where the ―computer‖ happens to be
a part of a ―computer system‖ or ―computer network‖ and it becomes
impossible to physically bring such system or network to the court, then the
only means of providing information contained in such electronic record can
be in accordance with Section 65-B(1), together with the requisite certificate
under Section 65-B(4). The last sentence in para 24 in Anvar P.V. [Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1
SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] which reads as ―… if an electronic
record as such is used as primary evidence under Section 62 of the Evidence
Act …‖ is thus clarified; it is to be read without the words ―under Section 62 of
the Evidence Act,…‖. With this clarification, the law stated in para 24 of Anvar
P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27
: (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] does not need to be
revisited.‖
(emphasis in original and supplied)
57. This judgment has put the matter beyond controversy. In view of the
above, there is no manner of doubt that certificate under Section 65-B(4) is a
condition precedent to the admissibility of evidence by way of electronic record
and further it is clear that the Court has also held Anvar P.V. [Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] to be the correct position of law.‖
(ii). Further, we deem it proper to refer to the observations of the
Hon’ble Apex Court in State of Karnataka v. T. Naseer 4 , wherein the
Hon’ble Apex Court found that Section 65-B Certificate can be produced at
any stage if trial is not over. In Para 11 of the judgment, the Hon’ble Apex
Court referred to Arjun Panditrao Khotkar‘s case for the legal preposition
4
(2024) 16 SCC 729 : 2023 SCC OnLine SC 1447 at page 735
16as to production of Section 65-B certificate and the stage for its production,
which reads as follows:-
“11. Coming to the issue as to the stage of production of the certificate under
Section 65-B of the Act is concerned, this Court in Arjun Panditrao Khotkar case [Arjun
Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC
(Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587] held that the certificate under
Section 65-B of the Act can be produced at any stage if the trial is not over. …‖
15. In the light of the statutory and precedential guidance referred above,
the principles that can be drawn are:-
1) Section 65-B Certificate is condition precedent for appreciating and
relying on electronic evidence in the form of secondary evidence.
2) The stage to produce such Section 65-B certificate is at any time
before the conclusion of the trial, where production of Section 65-B Certificate is
mandatory.
3) If the original electronic record is produced, certificate in terms of 65-B
is not necessary for appreciating the primary electronic evidence.
4) Section 65-B certificate can’t be received in appeal stage.
16. In Arjun Panditrao Khotkar‘s case vide para 61 of the judgment
mentioned above, the Hon’ble Apex Court, observed that the certificate
required under Section 65-B(4) is a condition precedent to the admissibility of
the evidence by way of electronic record, as correctly held in Anvar
P.V. vs. P.K. Basheer 5 , and that the law clarified in Shafi Mohammad’s
case [cited 1 supra] is incorrect, therefore, overruled. The learned Trial Judge
relied on Shafi Mohammad‘s case.
5
(2014) 10 SCC 473
17
17. In the present case, the argument is that MO.1 is in original form.
M.O.4 is the content of MO.1 in CD form. Then the evidence covered by
MO.4 is secondary evidence, for which Section 65-B certificate is necessary.
Whether the MO-4 is redundant in view of MO-1 being on record is a different
aspect and whether the contents of MO.1 can be relied, is a different aspect.
We deem it as not necessary to address now, although argued by the
learned Public Prosecutor. That aspect will be considered at proper stage.
18. Now in the present case, stage to produce Section 65-B Certificate is
over long back, as the matter is at the appeal stage. Therefore, the
application filed for receiving of additional evidence, either in terms of Section
391 Cr.P.C. corresponding to Section 432 BNSS or as per the law laid down
in terms of Section 65-B by the Hon’ble Apex Court, deserves dismissal.
Point No.1 framed is answered accordingly.
Point No.2:-
19. In the result, the application is dismissed.
________________________
JUSTICE K.SURESH REDDY
_________________________________
JUSTICE A.HARI HARANADHA SARMA
Date: 12 .03.2026
Pnr
18
167
HONOURABLE SRI JUSTICE K SURESH REDDY
And
HONOURABLE SRI JUSTICE SUBBAREDDY SATTI
CRIMINAL APPEAL No.2407 of 2018
(Per Hon’ble Sri Justice K. Suresh Reddy)
Date: 20.01.2026
Pnr