Source: Kerala High Court 

Why in News? 

Recently, the bench of Justice Raja Vijayaraghavan V and Justice P. V. Balakrishnan has held that government expert's report under Section 293 Code of Criminal Procedure, 1973 (CrPC) cannot substitute a Section 65B certificate, as the latter is a statutory requirement for the admissibility of electronic evidence. 

• The Kerala High Court held this in the matter of Umer Ali v. State of Kerala (2025). 

What was the Background of Umer Ali v. State of Kerala Case? 

• The case involves a criminal matter where an accused is charged with serious offences under the Indian Penal Code (IPC), specifically Sections 302 (murder), 376(A) (rape causing death), and 201 (causing disappearance of evidence). 
• The incident occurred on 27th November 2019 at approximately 1:08 am near the 'Indraprastha Hotel' located in Perumbavoor. 
• The prosecution alleges that the accused, described as a vagabond, deliberately dragged the victim named Deepa to the hotel's courtyard with the premeditated intention of committing rape and murder. 
• According to the prosecution's narrative, when the victim resisted the accused's attempts, he used a hoe to attack her, causing injuries to her face. 
• The accused is alleged to have subsequently:  
  • Disrobed the victim 
  • Committed rape 
  • Inflicted multiple injuries on her head, face, and body using the same hoe 
  • Caused the victim's death 
  • Damaged a CCTV camera at the crime scene to potentially destroy evidence 
• The accused was arrested on 27th November 2019 and charged with the aforementioned offences. 
• During the trial, the accused pleaded not guilty and denied all allegations, providing an alternative version of events involving consensual sexual interaction and subsequent payment. 

What were the Court’s Observations? 

• The Court examined the admissibility of electronic evidence, specifically the CCTV footage presented by the prosecution. 
• Key legal concerns were raised regarding the electronic evidence's procedural compliance, particularly the absence of a mandatory Section 65B of Indian Evidence Act,1872 (IEA) certification. 
• The Court distinguished between an expert's report under Section 293 CrPC and the specific statutory requirement of a Section 65B IEA certificate for electronic records. 
• Court observations were made about the prosecution's approach:  
  • Reliance on secondary electronic evidence (DVD copies). 
  • Failure to produce the original electronic record (DVR). 
  • Lack of proper legal certification for electronic evidence. 
• The Court observed that electronic records require strict procedural compliance to ensure:  
  • Source authenticity 
  • Evidence integrity 
  • Prevention of potential tampering 
• Judicial scrutiny revealed significant procedural lapses in evidence handling, which could potentially compromise the fairness of the trial. 
• The Court stressed that truth and justice must be the foundational principles in judicial proceedings, particularly in criminal cases involving serious offences. 
• While recognizing the gravity of the alleged crime, the Court prioritized procedural correctness and legal compliance in evidence presentation. 

What is Section 62 and Section 63 of Bhartiya Sakshya Adhiniyam, 2023 (BSA)? 

• Before the implementation of the new criminal laws, this section was covered under Section 65B of IEA. 

Section 62: Proof of Electronic Records 

• Section 62 establishes the fundamental principle that the contents of electronic records shall be proved in accordance with the provisions of Section 63.  
• This sets the stage for a comprehensive framework for handling electronic evidence in legal proceedings. 

Section 63: Admissibility of Electronic Records 

• Section 63(1): Fundamental Admissibility Clause 
  • Overarching provision for electronic record admissibility 
  • Electronic records can be deemed documents if specific conditions are met 
  • Allows for admissibility without:  
    • Further proof 
    • Production of original document 
    • Direct evidence requirement 
  • Scope of Electronic Records: 
    • Printed paper records 
    • Stored in optical or magnetic media 
    • Semiconductor memory 
    • Produced by:  
      • Computers 
      • Communication devices 
      • Any electronic form 
• Section 63(2): Conditions for Admissibility 
  • Regular Use and Generation  
    • Electronic record must be produced during a period of regular computer use 
    • Computer used for consistent activities under lawful control 
  • Information Input  
    • Information must be regularly fed into the device 
    • Input done in ordinary course of regular activities 
  • Operational Integrity  
    • Computer must operate properly throughout the material period 
    • Any operational issues should not affect record accuracy 
  • Reproduction Authenticity  
    • Electronic record must accurately reproduce or derive from originally input information 
• Section 63(3): Computer Device Consolidation 
  • Comprehensive Device Coverage: Recognizes multiple computer usage scenarios: 
    • Standalone mode 
    • Computer systems 
    • Computer networks 
    • Computer resources 
    • Intermediary-based systems 
  • Unified Treatment: 
    • All devices used for a specific purpose during a period are treated as a single device 
    • Ensures flexibility in technological implementation 
• Section 63(4): Certification Requirements 
  • Mandatory Certificate Components: 
    • Electronic record identification 
    • Production method description 
    • Device specifics 
    • Condition compliance details 
  • Certificate Characteristics: 
    • Signed by person in charge of:  
      • Computer/communication device 
      • Relevant activity management 
    • Can be based on best knowledge and belief 
    • Requires expert verification 

What is Section 329 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)?  

About  

• Before the implementation of the new criminal laws, this section was covered under Section 293 of the CrPC. 
• Section 329 of BNSS provides a comprehensive framework for the admissibility, presentation, and procedural handling of scientific expert reports in judicial proceedings under the Sanhita. 

Key Provisions 

• Admissibility of Expert Reports (Subsection 1) 
  • Allows documentary evidence in the form of reports prepared by government scientific experts 
  • Reports must be:  
    • Prepared under the expert's own signature 
    • Related to matters submitted for examination or analysis 
    • Produced during the course of legal proceedings 
  • Such reports are deemed admissible as evidence in inquiries, trials, or other legal proceedings 
• Judicial Discretion in Expert Examination (Subsection 2) 
  • Courts have the discretionary power to:  
    • Summon the scientific expert who prepared the report 
    • Conduct direct examination of the expert regarding the report's subject matter 
  • This provision ensures:  
    • Transparency in expert testimony 
    • Opportunity for cross-examination 
    • Judicial verification of expert findings 
• Representation and Deputization (Subsection 3) 
  • Recognizes practical constraints in expert attendance 
  • If the primary expert cannot personally appear in court, they may:  
    • Depute a responsible officer from their department 
    • The deputy must:  
      • Be familiar with the case details 
      • Capable of providing satisfactory testimony 
  • Exceptions:  
    • Court can specifically mandate personal appearance of the original expert 
    • Deputization is allowed only if not explicitly prohibited 
• Specified Government Scientific Experts (Subsection 4) 
  • The section explicitly lists government scientific experts covered under this provision: 
    • Chemical Experts 
      • Chemical Examiner 
      • Assistant Chemical Examiner to Government 
    • Specialized Technical Experts 
      • Chief Controller of Explosives 
      • Director of Finger Print Bureau 
      • Director, Haffkeine Institute, Bombay 
      • Forensic Science Laboratory Personnel:  
        • Director 
        • Deputy Director 
        • Assistant Director (Central or State Labs) 
      • Government Serologist 
    • Open-Ended Certification 
      • Allows State or Central Government to specify additional scientific experts via official notification.