X v. State of Maharashtra

X v. State of Maharashtra
In the High Court of Bombay
WP(Crl.) 1579/2019
Before Justice Vibha Kankanwadi
Decided on January 13, 2020

Relevancy of the case: Admissibility of CCTV footage & Facebook conversation transcripts post cross-examination.

Statutes & Provisions Involved

Relevant Facts of the Case

After the cross-examination of the informant, the prosecution filed two applications for exhibits namely Ex. 37 and Ex. 38. Ex.37 contained a CCTV footage recorded in the form of a CD while Ex. 38 contained Facebook conversation in textual format.
Thereafter, the accused sought permission to recall the informant for cross-examination and the production of the document (CCTV Footage) respectively.
The accused wanted to produce the document by recording the CCTV footage on CD and the Facebook conversation. He claimed that he couldn’t secure the CCTV footage and the Facebook conversation during the cross-examination of the informant earlier.
Initially, the Magistrate allowed only Ex. 37. Later, he also allowed for Ex. 38 on the final day of cross-examination of the informant, ordering that the production of CCTV footage recorded on CD is allowed.

Prominent Arguments by the Advocates

The petitioner’s counsel contended that the learned Magistrate failed to consider that he had to decide application Ex.38 first, which was for allowing the accused to produce documents. Without its admissibility, the Court cannot call the witness.
The respondent’s counsel contended that the accused has the right to his own defence. Though there was a facility of CCTV cameras in the shop, the investigating officer has not collected the same. Therefore, the accused was required to obtain the same by using his sources. At the time, views regarding the certificate under Section 65B of the Evidence Act were open. Therefore, the Court will exercise no prejudice to the prosecution or informant. Lastly, the learned Magistrate did not err in his judgment.

Opinion of the Bench

The bench observed that electronic records shall not be admitted as evidence unless the requirements under Section 65B of the Indian Evidence Act, 1872 are satisfied. Hence, any CD, VCD, chip, etc. shall be accompanied by a certificate without which, such electronic record will be inadmissible.
Though the production of the certificate is a curable defect, the accused in this case should have explained the source from where he obtained the CCTV Footage. Unless the authenticity of the document/electronic record is shown, it can’t be used in cross-examination.
The bench observed that the Magistrate did not consider the accused’s failure to provide a valid reason for not producing the record earlier.

Final Decision

The bench set aside the Magistrate’s orders with respect to the exhibits. Furthermore, the bench directed the accused to produce the Section 65B certificate for the evidence.

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