Electronic Evidence Lacking Section 65B Certificate is Inadmissible for Forensic Voice Comparison Analysis

In brief

The question

1. Whether the trial court could admit and act upon electronic evidence (audio tape) without verifying its status as primary or secondary evidence and ensuring compliance with certification requirements under Section 65B(4) of the Evidence Act.

The court held

It held that the trial court cannot bypass the mandatory requirement of Section 65B(4) certification and must strictly adhere to the safeguards for electronic evidence authenticity as laid down by the Supreme Court

It also directed

The Court allowed the petition and quashed the impugned order dated 30.12.2022. The matter was remanded to the trial court to decide application Exh.119 afresh in light of the cited binding precedents

01Facts

The respondents (original plaintiffs) filed a suit for specific performance of an oral agreement regarding the sale of a bungalow

¶ 2

The plaintiffs claimed to have recorded telephonic conversations with the defendants to prove a concluded contract and produced a transcript and an audio cassette (tape)

¶ 2.2

The plaintiffs moved application Exh.119 seeking the appointment of the Forensic Science Laboratory (FSL) to record the defendants' voice samples for comparison with the cassette

¶ 2.4

The trial court allowed the application, ordering the audio tape to be sent to FSL and directing the defendants to provide voice samples

¶ 2.9

The petitioners (defendants) challenged this order, arguing it forced them to provide evidence for the plaintiffs' case and ignored the legal requirements for electronic evidence

¶ 3.3

02Issues

i.1. Whether the trial court could admit and act upon electronic evidence (audio tape) without verifying its status as primary or secondary evidence and ensuring compliance with certification requirements under Section 65B(4) of the Evidence Act.

¶ 7-11

ii.2. Whether the trial court exceeded its jurisdiction in directing the defendants to provide voice samples before the plaintiffs proved the authenticity and admissibility of the audio recording.

¶ 3.3 / 14

03Law Applied

Section 65B(4) of the Indian Evidence Act (now Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023), which makes a certificate mandatory for the admissibility of secondary electronic evidence

¶ 8-10

Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which established that such certification is a condition precedent to admissibility

¶ 33-35

Safeguards for voice identification and tape recordings established in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra

¶ 32

Tukaram S. Dighole v. Manikrao Shivaji Kokate, which mandate rigorous proof of authenticity and accuracy for tape records

¶ 13/23

Provisions in the judgment · 1 · Linked ones open on LawLens

Bharatiya Sakshya Adhiniyam, 2023 Section 63

04Reasoning

The High Court found that the trial court committed a patent illegality by ignoring whether the tape record was primary or secondary evidence

¶ 7

Since the original telephone instrument was not produced, the tape was secondary evidence, requiring a mandatory certificate under Section 65B(4) (or Section 63(4) of BSA) before admission

¶ 7-9

The court noted that the trial court failed to follow binding precedents that require strict proof of accuracy and identification of voices before basing a decision on electronic recordings

¶ 12-13

Moving straight to FSL examination and demanding voice samples from the defendants "dehors" the established legal procedure for electronic evidence was held to be an overreach

¶ 14