Shri.S.Santosh Kumar v. Smti.G.R.Rajji

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE BIVAS PATTANAYAK CO 27 of 2025 Shri S. Santosh Kumar versus Shri G. R. Rajji For the petitioner : Mr. Gopala Binnu Kumar For the Opposite Party : Mrs. Anjili Nag, Sr. Adv.

Mr. Adarsh Ilango Heard on : June 12, 2025 Judgement on : June 19, 2025 BIVAS PATTANAYAK, J.

1. This Civil Revisional Application is preferred by the petitioner challenging the order dated 27th February, 2025 passed by the learned Judge, Family Court, South Andaman District at Port Blair in MAT Suit No. 20 of 2017 rejecting the prayer of the petitioner for considering the contents of MAT Exhibit No. I particularly messages and voice recordings in the mobile phone produced by petitioner (PW-1).

2. The brief fact of the case is that the petitioner filed a Matrimonial Suit being MAT Suit No. 71 of 2012 before the learned District

Judge, Andaman & Nicobar Islands, at Port Blair seeking divorce on the ground of cruelty and allied grounds under Section 13(1) (ia) and (iii) of the Hindu Marriage Act, 1955, which was renumbered as Matrimonial Suit no. 20 of 2017 before the learned Judge, Family Court, at Port Blair. The petitioner in order to prove his case examined himself and three other witnesses and the respondent examined three witnesses including herself. During his examination the petitioner produced a mobile phone being No. 9434271890 along with chip and card reader exhibited as MAT Exhibit I collectively. The said mobile phone contain the contents of the messages, contents of the quarrel recorded in the said mobile phone.

At the stage of argument, the petitioner filed an application under Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) for considering the contents of the MAT Exhibit I produced by PW-1 particularly the messages and the voice recordings in the said mobile phone. Upon hearing the learned Trial Court rejected the said prayer of the petitioner vide dated 27th February, 2025, since no steps were taken by the petitioner in order to prove the alleged digital contents in accordance with Section 65B of the Indian Evidence Act (in short 'Evidence Act'). Being aggrieved by and dissatisfied with the impugned order, the petitioner has preferred the present revisional application.

3. Mr. Gopala Binnu Kumar, learned Advocate appearing for the petitioner submitted that the mobile phone of the petitioner, the chip

and the card reader were collectively exhibited as MAT Exhibit I before the learned Trial Court without any objection from the side of the respondent. The prayer of the petitioner was rejected by the learned Trial Court on the sole ground that no steps were taken by the petitioner under Section 65B of the Evidence Act to prove the digital contents of the mobile phone. However, the learned Trial Court failed to appreciate that when primary evidence is produced under Section 62 of Evidence Act for inspection of the Court, the requirement of Section 65B of Evidence Act is not warranted. Section 65B of Evidence Act comes into play when secondary evidence under Section 65 of the Evidence Act is placed before the Court. The petitioner produced the primary evidence of the electronic record i.e.

the original mobile phone in Court which is admissible in evidence without compliance under Section 65B of the Evidence Act. That apart the mobile phone produced by the petitioner before the learned Trial Court has been exhibited without any objection during the trial and therefore the learned Trial Court cannot ask for further requirement under Section 65B of the Evidence Act. Moreover, certificate under Sub- Section 4 of Section 65B of the Evidence Act is not necessary if the original document, being primary evidence, itself is produced. When the primary evidence is produced before the Court by the petitioner the requirement of Section 65B of Evidence Act is uncalled for.

bring the network or system to the Court and the electronic record in such cases is required to be proved in accordance with Section 65B of the Evidence Act. The learned Trial Court failed to appreciate the true purport of Section 65B of the Evidence Act. In support of his contention, he relied on the following decisions of the Hon'ble Supreme Court.

(i) Anvar P. V. - versus - P. K. Basheer and others reported in (2014) 10 SCC 473.

(ii) Vikram Singh @ Vicky Walia & Another - versus - State of Punjab & Another reported in (2017) 8 SCC 518. (iii) Arjun Panditrao Khotkar - versus - Kailash Kushanrao Gorantyal and Others reported in (2020) 7 SCC 1. He also submitted that the messages and audio recordings recorded by the petitioner is relevant under Section 7 of the Evidence Act and therefore the learned Trial Court ought to have allowed the prayer of the petitioner for consideration of such evidence adduced by the petitioner. In light of his aforesaid submission, he prayed that the impugned order dated 27th February, 2025 passed by the learned Trial Court be set aside and orders be passed directing the learned Trial Court to consider the MAT Exhibit I collectively by taking note of the messages, audio and voice recordings in the said mobile phone in the interest of justice.

4. On the contrary Mrs. Anjili Nag, learned senior advocate appearing for the respondent submitted that though the mobile phone was produced by the petitioner and has been marked as MAT Exhibit I collectively along with chip and card reader without objection but PW-1 during his evidence has not taken any steps to prove the contents of the mobile phone. The mobile phone has been allotted an exhibit number only for convenience of the court. The admissibility of the said exhibit is to be decided in the light of evidence adduced to prove the same in accordance with law. Allotment of an exhibit number does not per se lead to admissibility of a document. Such being the position, the contents of the electronic gazette cannot be gone into until and unless such contents/information are proved in accordance with law.

After the contents of the electronic gazette satisfies the conditions as provided under Sub-Section (2) of Section 65B of the Evidence Act, the genuineness of the electronic records are to be established as per Section 45A of the Evidence Act which has been incorporated to have the expert's opinion with regard to the electronic records.

with in the interest of justice. She seeks for dismissal of the application in limine.

5. Having heard the learned Advocates appearing for the respective parties, now it is to be examined whether the learned Trial Court is justified in rejecting the prayer of the petitioner for considering the contents such as messages and voice recordings in the mobile phone produced by petitioner (PW-1).

6. In order to appreciate the issue at hand, it would be apposite to examine the law as it exists on the subject of admissibility of electronic evidence.

7. With the advent of internet revolution, the Indian legal system incorporated technology into its proceedings. The said amendment introduced Section 65A & 65B to the Evidence Act, keeping the concerns regarding the authenticity of electronic records intact and to ensure their adaptability in courtrooms. The admissibility of electronic evidence in Indian courts, since then have been a topic of extensive discussion. Under Section 65A of the Evidence Act, the contents of electronic records have to be proved as evidence in accordance with the requirements of Section 65B. Both Sections 65A and 65B were inserted through the Indian Evidence (Amendment) Act, 2000, and form part of Chapter V of the Evidence Act, which deals with documentary evidence. In Anvar P.V (supra) it was clarified that as Section 65B begins with a non-obstante clause, it

forms a complete code for the admissibility of electronic evidence. Under Section 65B (1) of Evidence Act, any information contained in an electronic record, which is printed on a paper, stored, recorded or copied in optical or magnetic media as a computer output, shall also be deemed as a 'document' - and shall be admissible as evidence in any proceedings without further proof or production of the originals, if the conditions mentioned are satisfied. Section 65B (2) of the Evidence Act lays down the criteria that must be satisfied for the information to be categorized as a 'computer output'.

8. The provision in Section 65B (4), states that if the electronic evidence is to be used in any judicial proceeding, a certificate shall have to be produced which identifies the electronic record containing the statement and describes the manner in which it was produced, and gives particulars of the device involved in the production of the electronic record. This certificate shall have to be signed by a person occupying a responsible official position in relation to the operation of the relevant device, or management of the relevant activities involved. This signature shall be evidence of the matter stated in the certificate. Section 65B (4) also mentions that the contents of the certificate should be stated "to the best of the knowledge and belief of the person stating it." Such provisions gave rise to conflicting interpretations namely with regard to (i) whether a certificate under Section 65B (4) of the Evidence Act must be produced even when an original record of the electronic evidence is available, or does it have

to be given only when a secondary record of the electronic evidence is produced? and (ii) whether compliance with Section 65B (4) of the Evidence Act is mandatory even in a situation when it is not possible to obtain the certificate from the competent entity?

9. The decision of Hon'ble Supreme Court in the case of Arjun Panditrao Kotkar (supra) provides answers to these questions. The first of the above question being relevant to the present context the appropriate paragraphs of the aforesaid decision are reproduced hereunder for the convenience of discussion.

"30. Coming back to Section 65B of the Indian Evidence Act, subsection (1) needs to be analysed. The sub-section begins with a non-obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a "document". This deeming fiction only takes effect if the further conditions mentioned in the Section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the "document" shall then be admissible in any proceedings. The words "...without further proof or production of the original..." make it clear that once the deeming fiction is given effect by the fulfilment of the conditions mentioned in the Section, the "deemed document" now becomes admissible in evidence 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.

31. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf Sections 62 to 65 being

irrelevant for this purpose. However, Section 65B(1) clearly differentiates between the "original" document - which would be the original "electronic record" contained in the "computer" in which the original information is first stored and the computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom-the former being primary evidence, and the latter being secondary evidence.

32. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and or operated by him. In cases where "the computer", as defined, happens to be a part of a "computer system" or "computer network" (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).

This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." This may more appropriately be read without the words "under Section 62 of the Evidence Act...." With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited." 10.

The aforesaid decision clearly lays down that Section 65B (1) of the Evidence Act differentiates between the 'original' electronic record, which is contained in the computer in which the information

is first stored - and the secondary copies that are made from the primary electronic record. It observed that all this necessarily would shows that the original information contained in the computer itself is the primary evidence and the copies made therefrom is the secondary evidence. It was held that a certificate under Section 65B

(4) of Evidence Act shall have to be obtained only when the secondary copies of the electronic record are produced before the Court. Production of a certificate shall not be necessary when the original electronic record is produced. The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him.

If the "computer" where the electronic record was first stored happens to be part of a "computer network" or "computer system" (as defined under the Information Technology Act, 2000), and it is not possible to bring such a network/system physically to the Court, then secondary copies can be produced along with the certificate stipulated by Section 65B (4) of the Evidence Act. The Hon'ble Apex Court in Arjun Panditrao Kotkar (supra) agreed with the proposition in Anwar P.V (supra) which held that Section 65B of the Evidence Act is a complete code in itself for the admissibility of electronic evidence and shall not be affected by other provisions of the Evidence Act. In Anvar P.V (supra) it was also held that - "...

evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act." The said proposition has been clarified in Arjun Panditrao Kotkar (supra) that the dictum should be read by omitting the words "under Section 62 of the Evidence Act." This is for the reason that Section 65B of the Evidence Act is a complete code for electronic evidence and shall supersede other provisions such as Section 62 of the Evidence Act and that it is not necessary to refer to Section 62 of the Evidence Act , as Section 65B (1) of Evidence Act itself distinguishes between the original electronic record and the secondary copies of the electronic record.

Thus, the decision in Arjun Panditrao Kotkar (supra) clarifies that a certificate is necessary only when presenting electronic evidence as secondary evidence. If the original electronic record, which serves as primary evidence, is produced, then the submission of a certificate is not required. The owner of the computer, tablet, or mobile phone can directly introduce the original electronic record as evidence by testifying that they own or operate the device where the information is initially stored. The Hon'ble Supreme Court in Vikram Singh @ Vicky Walia has relied on the decision in Anwar P.V (supra) to examine whether certificate as contemplated under Section 65B (4) of Evidence Act is mandatorily required or not.

11.

Bearing in mind the above proposition of law as laid down by the Hon'ble Supreme let me now proceed to examine whether the

petitioner ought to have taken steps as contemplated under Section 65B of the Evidence Act.

12.

Upon perusal of the evidence of PW-1 it is found that during his examination the petitioner produced the mobile phone along with chip and card reader which has been marked as MAT Exhibit I collectively. The question which requires examination is whether the marking of the mobile phone ipso-facto leads to proving of the contents of the mobile phone. Any document filed by either party passes through three stages before it is held proved or disproved, which are as follows. First stage: when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second Stage: When the documents are tendered or produced in evidence by a party and the Court admits the documents in evidence.

A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence; Third Stage: the documents which are held proved, not proved or disproved when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. The mere admission of a document in evidence does not amount to its proof. The Court when called upon to examine the admissibility of a document it requires to look to the document only.

the box, but has to consider the probabilities of the case as emerging from the whole record. It cannot be expected under any law, rule or practice direction that the Court would apply its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification by such marking. The parties and the Court, while reading the record would know which was the document before the witness while deposing and avoid confusion. Endorsement of an exhibit number on a document has no relation with its proof.

Neither the marking of an exhibit number can be postponed till the document has been held proved nor the document can be held to have been proved merely because it has been marked as an exhibit. In the decision of LIC of India & Anr versus Ram Pal Singh Bisen reported in (2010) 4 SCC 491 the Hon'ble Supreme Court held that mere admission of document in evidence does not amount to its proof. In other words, mere marking of Exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Thus mere marking of mobile phone as MAT Exhibit does not amount to its proof and is subject to the provisions under section 65B of Evidence Act.

13.

The law now has been well settled by the Hon'ble Supreme Court in Arjun Panditrao Kotkar (supra) that if the original electronic record, which serves as primary evidence, is produced, then the submission of a certificate is not required. The owner of the computer, tablet, or mobile phone can directly introduce the original electronic record as evidence by testifying that they own or operate the device where the information is initially stored. In the backdrop of the aforesaid proposition let me examine whether the petitioner has led evidence to establish that he is the owner of the mobile phone where the contents have been initially stored. PW 1 in his evidence-in-chief stated that in few occasion he could record the audio recordings through his mobile phone.

Be that as it may, while testifying in Court the petitioner (PW1) though produced the mobile phone before the learned Trial Court but at the time of production and during the course of evidence no statement is made by him that such mobile phone is owned by him or is operated by him. PW1 has also not produced any documentary evidence to establish his ownership of the said mobile phone. That apart there is also no evidence at the time of examination and while producing the said mobile phone that the contents of the messages and audio recordings were initially stored in the said mobile phone. Thus, fact remains that the petitioner failed to establish before the learned Trial Court that the said mobile phone is the primary evidence.

contemplated under Section 65B of the Evidence Act, as has been rightly held by the learned Trial Court. Therefore, the impugned order of the learned Trial Court does not call for interference. 14.

It has been strenuously argued on behalf of the petitioner that the massages and audio recording of the mobile phone (Mat exhibit I) are relevant under Section 7 of the Evidence Act. Be that as it may, such aspect does not absolve the petitioner of proving a fact in accordance with law.

15.

In view of the above discussion, the present civil revisional application falls short of merit.

16.

Accordingly, the Civil Revision being CO 27 of 2025 be and the same is hereby dismissed. The impugned order dated 27th February 2025 of the learned Trial Court passed in MAT Suit no. 20 of 2017 is hereby affirmed.

17.

There shall be no order as to costs.

18.

All connected applications, if any, stand dismissed. 19.

Interim order, if any, stands vacated.

20.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties upon compliance of necessary legal formalities. (Bivas Pattanayak, J.)