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Apurva Jagdishbhai Dave vs Prapti Apurva Dave D/O … on 25 October, 2019

C/SCA/3162/2018 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 3162 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17621 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR.JUSTICE A. P. THAKER

1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?

APURVA JAGDISHBHAI DAVE
Versus
PRAPTI APURVA DAVE D/O MAHENDRABHAI GANDHI

Appearance:
MR JAYANT P BHATT(169) for the Petitioner(s) No. 1
MR JEET J BHATT(6154) for the Petitioner(s) No. 1
PARTY IN PERSON(5000) for the Respondent(s) No. 1

CORAM: HONOURABLE DR.JUSTICE A. P. THAKER

Date : 25/10/2019

ORAL JUDGMENT

1. The petitioner has filed this petition under Articles 226 and
227 of the Constitution of India challenging the legality, validity and
propriety of the impugned order dated 06.01.2018 passed by the

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learned Principal Judge, Family Court, Gandhinagar (hereinafter be
referred to as “the Trial Court”) below application at Exhibit 51 filed
by the petitioner in Hindu Marriage Petition No. 166 of 2001.

2. The brief facts of the present petition, in nutshell, are as
under:-

2.1 The petitioner had made an application at Exhibit 38 in Hindu
Marriage Petition No.166 of 2013 wherein the petitioner wanted to
play CD produced by the petitioner in the list of documents attached
with Hindu Marriage Petition under Section 13 of the Hindu Marriage
Act (hereinafter be referred to as “the Act”) with CD contained
recording of the respondent with the petitioner and his father had
gone to garden in Sector 7, Gandhinagar to meet his child who born
out of the wedlock of the petitioner and the respondent.

2.2 While narrating fact of that day, it is contended that on that
day, Mahila Police came and he was told that in Mahila Police
Station, as the respondent – wife has lodged the complaint stating
that the petitioner and his father had beaten the child in the garden
and, at that time, the petitioner has full details of the incident to the
police personnel and also showed the mobile recording to them. As
such, Mahila Police has asked the petitioner to record the
statement. He has contended that, thereafter, the petitioner was
constrained to make an application against the respondent as she
had threatened to file the false criminal case under Section 498A of
the Indian Penal Code. The petitioner has contended that he has to
file an application in the custody application for modification of the
order to meet the child at Mahila Police Station instead of Sector 7
Garden, in order to avoid the respondent from harming the
petitioner and his father. It is his contention that he had produced
CD along with transcript in the custody application on 15.09.2014. It
is contended that the respondent has never raised any dispute

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regarding the said CD and never questioned the authenticity of the
said recording. However, now the CD can be sent to the Forensic
Science Laboratory for scientific examination. He has contended
that as the recording shows the misbehave of the respondent, she is
trying to create unnecessary tactics to delay the trial and in not
getting the CD during the pendency of the suit before the Family
Court. He has also contended that in both the matters i.e. Hindu
Marriage Petition and custody case, the CD has been produced by
the petitioner and the copy thereof has been handed over the
respondent, but there was no objection raised by the respondent.

2.3 It is contended that during examination-in-chief before the
Family Court in Hindu Marriage Petition, the respondent – wife has
not disputed the contents of the CD of the petitioner and she has
nowhere mentioned that the CD is false and fabricated. It is his
contention that during the cross-examination of the respondent,
learned advocate for the petitioner was asked the question
regarding the incident of 07.09.2014 and at that time, she denied
having happening of such incident. As such, the petitioner wanted to
play the CD in the proceedings of the Court and asked the question
to the respondent either to controvert or to admit the incident of
07.09.2014 and also asked the respondent whether it was her voice
or not. It is contended that in order to play the CD, the petitioner
has made an application at Exhibit 38 on 16.11.2016. It is
contended that the respondent has raised the objection with regard
to play of the CD in the Family Court and she has filed the reply
wherein she disputed the contents of the recording and stated that
no such incident had occurred on 07.09.2014 and after hearing both
the parties, the Court has rejected the application at Exhibit 38 vide
order dated 02.01.2017. It is his contention that the order was
challenged by the petitioner by way of preferring Special Civil
Application No.1950 of 2017, wherein, this Court has disposed of the
said petition permitting the petitioner to file necessary application

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and directed the Trial Court to decide the same in accordance with
law, after giving an opportunity of hearing to all concerned parties.

2.4 It is contended that being aggrieved and dissatisfied with the
order dated 07.03.2017 passed by this Court in the aforesaid
petition, the respondent has preferred Letters Patent Appeal No.627
of 2017, wherein, the Division Bench of this Court vide its order
dated 20.04.2017 allowed the Letters Patent Appeal and remanded
the matter back to the learned Single Judge for fresh consideration.

2.5 It is the contention of the petitioner that thereafter, he
approached the Capital Novus Company which is established in
2002 in Washington DC with a focus on e-Discovery and Information
Governance and Compliance and having its branch office at
Gandhinagar at IT SEZ Zone, at Koba and from this contention, he
obtained the certificate as contemplated under Section 65B of the
Evidence Act. This certificate was given after examining the
residence and collected the audio recording from the computer at
the residence of the petitioner. It is contended that it is very much
difficult to get such certificates from Gandhinagar District and no
such agencies dealing with the same and no one would want to help
in such Court cases and, therefore, it was not possible for the
petitioner to produce such certificate at the time of submitting the
CD. According to him, the certificate can be produced at any time of
the trial. It is contended that as the certificate under Section 65B of
the Evidence Act was available with the petitioner, he thought it fit
to produce the said certificate before the Family Court and he did
not press Special Civil Application No.1950 of 2017 and sought
permission for withdrawal of the petition, in order to make the
application before the Family Court, which request was granted by
the Court. Against that order, respondent had filed Letters Patent
Appeal No.1571 of 2017 which came to be dismissed by the Division
Bench of this Court vide order dated 20.09.2017. He has contended

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that thereafter, the petitioner had moved an application at Exhibit
51 for production of documents and after hearing both the sides, the
Family Court passed the impugned order on 06.01.2018 rejecting
the application of the petitioner.

2.6 The facts of Special Civil Application No.17612 of 2018 are
that the petitioner has challenged the order dated 28.09.2009
passed by the learned Principal Judge, Family Court, Gandhinagar
below application Exhibit 1 being Civil Misc. Application No.3 of 2017
in Hindu Marriage Petition No.166 of 2013 whereby the prayer of the
petitioner for custody of the daughter Harishree has been rejected
by the Trial Court. It is inter alia contended that there is dispute
between the husband and wife and due to arrogant nature of the
wife, the dispute has arisen and though there was direction of
visitation right to the husband, she is not allowing the husband to
meet the minor daughter. It is contended that the Trial Court has
materially erred in dismissing the said application. It is prayed to
allow the present petition and to quash and set aside the impugned
order dated 29.09.2019 passed by the Trial Court.

3. Heard Mr. Jeet Bhatt, learned counsel for the petitioner.
Whereas, party-in-person – respondent has not chosen to remain
present before the Court.

4. Mr.Jeet Bhatt, learned advocate for the petitioner has
submitted the same facts which are narrated in the memo of both
the petitions. He has submitted that the Trial Court has committed
serious error of law and facts in disallowing the applications at
Exhibit 51 and 38 for production of the documents and cross-
examination of the respondent – wife. According to him, under
Section 65(b) of the Evidence Act, the certificate can be produced at
any time and production of such certificate, at later stage, is merely
irregularity, but not illegality. According to him, even as per the

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decision of the Apex Court in the Case of Bipin Shantilal Panchal Vs.
State of Gujarat, reported in 2001 (2) GLH 545, the CD could have
been exhibited. Regarding Special Civil Application No.17612 of
2018, he has submitted that this is a case of custody of minor and
the husband has filed the said petition for custody of minor under
Section 26 of the Hindu Marriage Act and interim order was passed
by the Trial Court but the wife is not abide by the said order and the
petitioner has sought for visitation right of the minor daughter and
the Trial Court has committed an error in dismissing the application
at threshold. He has prayed to allow both the petitions.

5. So far as Special Civil Application No.3162 of 2018 is
concerned, it appears that the Trial Court has dismissed the
application on the ground that certificate under Section 65B of the
Evidence Act has been produced at later stage and not at the time
when the original document was produced. Now, it is an admitted
fact that under Section 65B of the Evidence Act, the electronic
document can be produced along with the certificate which is
prescribed under the Act. Admittedly, in this case, the certificate has
not been produced, at the relevant time, but has been produced
later on. At this stage, it is worthwhile to refer to Section 65B of the
Evidence Act, which reads as under:-

65B. Admissibility of electronic records:

(1) Notwithstanding anything contained in this
Act, any 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

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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 period 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

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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 whether it was
produced by it directly or (with or without
human intervention) by means of any
appropriate equipment.

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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.” These are
the provisions under the SectionEvidence Act relevant
to the issue under discussion.

6. In view of the provisions of Section 65B of the Evidence Act,
the Supreme Court in the case of Anwar P. V. Vs. P. V. Basheer,
reported in (2014) 10 SCC 473 has held and observed that an
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section 65B
are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall
be accompanied by the certificate in terms of Section 65B obtained
at the time of taking the document, without which, the secondary
evidence pertaining to that electronic record, is inadmissible. The
Apex Court has also held and observed that the situation would
have been different had the appellant adduced primary evidence,
by making available in evidence, the CDs used for announcement
and songs. Had those CDs used for objectionable songs or
announcements been duly got seized through the police or Election
Commission and had the same been used as primary evidence, the
High Court could have played the same in court to see whether the
allegations were true. That is not the situation in this case. The
speeches, songs and announcements were recorded using other
instruments and by feeding them into a computer, CDs were made
therefrom which were produced in court, without due certification.
Those CDs cannot be admitted in evidence since the mandatory
requirements of Section 65B of the Evidence Act are not satisfied. It
is clarified that notwithstanding what we have stated herein in the
preceding paragraphs on the secondary evidence on electronic
record with reference to Section 59, Section65A and Section65B of the Evidence
Act, if an electronic record as such is used as primary evidence
under Section 62 of the Evidence Act, the same is admissible in

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evidence, without compliance of the conditions in Section 65B of the
Evidence Act. The Court has held that the CDs were not primary or
electronic evidence and, therefore, while requirement of
Section65B, certification needed to be completed, in absence of
which the same could not be admitted as evidence.

7. Though in the aforesaid case, clarified the position relating to
Section 65B of the Evidence Act, certification to a large extent,
howeer, it did not specify as to whether the said certificate has to
be filed with the charge-sheet or if it can be supplied at a later
state, during the trial. Though, there is no authoritative
pronouncement of the Supreme Court on this issue, there are two
decisions of the Delhi High Court and the Rajasthan High Court.
Both the Courts have taken in the view that Section 65B certificate
can be provided at a later stage and it is not an illegality going to
the root of the matter. In the case of Paras Jain Vs. State of
Rajasthan, reported in (2015) SCC Online Rajasthan 8331, the
Rajasthan High Court has held and observed in para-23 as under:-

23. When legal position is that additional
evidence, oral or documentary, can be
produced during the course of trial if in the
opinion of the Court production of it is essential
for the proper disposal of the case how it can be
held that the certificate as required under
Section 65-B of the Evidence Act cannot be
produced subsequently in any circumstances if
the same was not procured along with the
electronic record and not produced in the Court
with the charge-sheet. In my opinion it is only
an irregularity not going to the roof of the
matter and is curable. It is also pertinent to note
that certificate was produced along with the
charge-sheet but it was not in a proper form but
during the course of hearing of these
petitioners, it has been produced on the
prescribed form.”

8. The Delhi High Court has, in the case of Kundan Singh Vs.

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State, reported in 2015 SCC Online Delhi 13647, held and
observed in para-40 as under:-

40. The expression used in the said
paragraph is when the electronic record is
“produced in evidence”. Earlier portion of
the same sentence emphasises the
importance of certificate under Section 65-B
and the ratio mandates that the said
certificate must accompany the electronic
record when the same is “produced in
evidence”. To us, the aforesaid paragraph
does not postulate or propound a ratio that
the computer output when reproduced as a
paper printout or on optical or magnetic
media must be simultaneously certified by
an authorised person under sub-section (4)
to Section 65-B. This is not so stated in
Section 65-B or sub-section (4) thereof. Of
course, it is necessary that the person giving
the certificate under sub-section(4) to
Section 65-B should be in a position to
certify and state that the electronic record
meets the stipulations and conditions
mentioned in sub-section (2), identify the
electronic record, describe the manner in
which “computer output” was produced and
also give particulars of the device involved
in production of the electronic record for the
purpose of the device involved in production
of the electronic record for the purpose of
showing that the electronic record was
prepared by the computer.”

9. In view of the above decisions, this Court is of the opinion that
the impugned order of the Family Court regarding non-submissions
of the certificate at the time of production of electronic record is not
legally sustainable. The document ought to have been permitted to
be produced in the matter and after proper verification, it could
have been exhibited. Therefore, the impugned order of the Trial
Court is liable to be quashed and set aside and the electronic record
is liable to be taken on record. It is not on the part of the petitioner
to prove the same and after proper verification of the document, it

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could be placed on record. For that purpose, the petitioner could be
called for further cross-examination.

10. Now, so far as Special Civil Application No.17621 of 2018 is
concerned, on perusal of the impugned order, it appears that the
petitioner has not led any evidence and his right for leading the
evidence has already been closed. Under that circumstances, in
absence of the evidence led by the petitioner, the Trial Court has
passed the impugned order rejecting the application which cannot
be said to be perverse one and parties do not chose to led evidence.
In such case, if the application is rejected, the party cannot blame
or raise any issue at later stage. Therefore, so far as Special Civil
Application No.17621 of 2018 is concerned, it is devoid of merits.

11. In view of the above, Special Civil Application No.3162 of 2018
is allowed. The Trial Court is directed to take on record the
electronic record and after proper verification, it could be exhibited.
The Court may, if required, call for otherside for further cross-
examination. Rule is made absolute.

12. Special Civil Application No.17621 of 2018 is dismissed,
accordingly. Rule is discharged.

Sd/-

(A. P. THAKER, J)
V.R. PANCHAL

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