SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE

1.8 The fact remains that no mitigating circumstances were placed before any of the appellate courts. It cannot be said that there is no possibility of reformation even though the petitioner has committed a ghastly crime. The mitigating factors that the petitioner has no prior antecedents, was 23 years old when he committed the crime and has been in prison since 2009 where his conduct has been satisfactory, except for the attempt to escape prison in 2013; that the petitioner is suffering from a case of systemic hypertension and has attempted to acquire some basic education in the form of a diploma in food catering; that the acquisition of a vocation in jail has an important bearing on his ability to lead a gainful life, must be considered. Considering the above factors, even though the crime committed by the petitioner is unquestionably grave and unpardonable, it is not appropriate to affirm the death sentence that was awarded to him. The ‘rarest of rare’ doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal. However, the Court is also aware that a sentence of life imprisonment is subject to remission. This would not be adequate in view of the gruesome crime committed by the petitioner. [Para 88-90][1064-E-H; 1065- A]

1.9 There is no reason to doubt the guilt of the petitioner in kidnapping and murdering the victim. The exercise of the jurisdiction in review to interfere with the conviction is not warranted. However, the Court does take note of the arguments SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE 1021 regarding the sentencing hearing not having been conducted separately in the trial court and mitigating circumstances having not been considered in the appellate courts before awarding the capital punishment to the petitioner. While weighing this argument, the gruesome nature of the crime of murder of a young child of merely 7 years of age has also weighed upon the Court and the Court does not find that a sentence of life imprisonment, which normally works out to a term of 14 years, would be proportionate in the circumstances. Accordingly, the death sentence imposed upon the petitioner is commuted to life imprisonment for not less than twenty years without reprieve or remission. [Para 93, 94][1066-B-E]

1.10 Separately, a notice is required to be issued to the Inspector of Police, Kammapuram Police Station, Cuddalore District, State of Tamil Nadu to offer an explanation as to why action should not be taken for the filing of the affidavit dated 26 September 2021. In this case, prima facie, material information regarding the conduct of the petitioner in the prison was concealed from this Court. Accordingly, the Registry is directed to register the matter as a suo motu proceeding for contempt of court. [Para 95][1066-F] Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India 2014 (9) SCC 737 : [2014] 11 SCR 1009 – followed Mofil Khan v State of Jharkhand 2021 SCC OnLineSC 1136; Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal 2020 (7) SCC 1; Anvar P.V. v P.K. Basheer 2014 (10) SCC 473 : [2014] 11 SCR 399; State (NCT of Delhi) v Navjot Sandhu 2005 (11) SCC 600 : [2005] 2 Suppl. SCR 79; Tomaso Bruno v State of Uttar Pradesh 2015 (7) SCC 178 : [2015] 1 SCR 721; Shafi Mohammed v State of Himachal Pradesh 2018 (2) SCC 801; Sonu alias Amar v State of Haryana 2017 (8) SCC 570 : [2017] 8 SCR 151; Mohd.

Arif v State (NCT of Delhi) 2022 SCC OnLine SC 1509; Shatrughna Baban Meshram v State of Maharashtra 2021 (1) SCC 596; Santa Singh v State of Punjab 1976 (4) SCC 190 : [1977] 1 SCR 229; Bachan Singh v State of Punjab A B C D E F G H 1022 SUPREME COURT REPORTS [2023] 5 S.C.R. A B C D E F G H 1980 (2) SCC 684; Muniappan v State of Tamil Nadu 1981 (3) SCC 11 : [1981] 3 SCR 270; Allauddin Mian v State of Bihar 1989 (3) SCC 5 : [1989] 2 SCR 498; Anguswamy v State of Tamil Nadu 1989 (3) SCC 33; Malkiat Singh v State of Punjab 1991 (4) SCC 341 : [1991] 2 SCR 256; Dattaraya v State of Maharashtra 2020 (14) SCC 290 : [2019] 11 SCR 295; Dagdu v State of Maharashtra 1977 (3) SCC 68 : [1977] 3 SCR 636; Tarlok Singh v State of Punjab 1977 (3) SCC 218 : [1977] 3 SCR 711; Ramdeo Chauhan v State of Assam 2001 (5) SCC 714 : [2001] 3 SCR 669; In re: Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences Suo Motu W.P. (Crl.) No.

1/2022; Rajendra Pralhadrao Wasnik v State of Maharashtra 2019 (12) SCC 460 : [2018] 14 SCR 585; Santosh Kumar Satishbhushan Bariyar v State of Maharashtra 2009 (6) SCC 498 : [2009] 9 SCR 90; Anil v State of Maharashtra 2014 (4) SCC 69 : [2014] 3 SCR 34; Swamy Shraddananda (2) @ Murali Manohar Mishra v State of Karnataka 2008 (13) SCC 767 – referred to. Exercise of Review Jurisdiction in Capital Cases in DEATH PENALTY AND THE INDIAN SUPREME COURT (2007–2021), Project 39A, National Law University Delhi (2022) – referred to. Case Law Reference [2014] 11 SCR 1009 followed (2020) 7 SCC 1 [2014] 11 SCR 399 referred to referred to [2005] 2 Suppl. SCR 79 referred to [2015] 1 SCR 721 (2018) 2 SCC 801 [2017] 8 SCR 151 (2021) 1 SCC 596 referred to referred to referred to referred to Para 1 Para 30 Para 30 Para 31 Para 34 Para 35 Para 40 Para 58 SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE 1023 [1977] 1 SCR 229 (1980) 2 SCC 684 [1981] 3 SCR 270 [1989] 2 SCR 498 (1989) 3 SCC 33 [1991] 2 SCR 256 [2019] 11 SCR 295 [1977] 3 SCR 636 [1977] 3 SCR 711 [2001] 3 SCR 669 [2018] 14 SCR 585 [2009] 9 SCR 90 [2014] 3 SCR 34 (2008) 13 SCC 767 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to Para 63 Para 64 Para 65 Para 66 Para 67 Para 67 Para 67 Para 68 Para 68 Para 68 Para 76 Para 77 Para 78 Para 91 INHERENT JURISDICTION : Review Petition (Crl.) Nos.159- 160 of 2013 In Criminal Appeal Nos.300-301 of 2011.

From the Judgment and Order dated 15.02.2013 in Crl. A. Nos.300 and 301 of 2011 of the Supreme Court of India. Renjith B. Marar, Ms. Lakshmi N. Kaimal, Arun Poonavlli, M. J. Santhosh, Advs. for the Petitioner. V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi, Sanjeev Kumar Mahara, Ms. Richa Vishwakarma, Advs. for the Respondent. The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI This Judgment consists of the following sections: A. B. C. Prologue–The impact of Mohd. Arif………………3* Background ................................................................ 7* Scope of Review Jurisdiction .................................. 9* *Ed. Note : Pagination is as per the original judgment. A B C D E F G H 1024 SUPREME COURT REPORTS [2023] 5 S.C.R. A D. Error Apparent on the Face of the Record? ....... 10* D.1 Submissions of Counsel .................................... 10* D.2. Analysis ............................................................ 12* E. Sentencing & Mitigation ........................................ 32* E.

1. Lingering Doubt Theory .............................. 32* E.

2. Sentencing & Mitigation in the Trial Court and the Appellate Courts .................................... 34* F. Conclusion ................................................................ 50*

The applicant is a convict on death row. He has moved this court for a fresh look at his petition seeking a review of his conviction for the offence of murder and the award of the sentence of death. He does soon the basis of the decision of the Constitution Bench in Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India1. In Mohd. Arif, this Court has held that review petitions arising from conviction and the imposition of the sentence of death must be heard in open court and cannot be disposed of by circulation. The Constitution Bench allowed a period of a month from the date of judgment to petitioners whose applications seeking review of the judgment of this Court confirming the award of the sentence of death were rejected by circulation, where the sentence was yet to be executed. A. Prologue – The impact of Mohd. Arif

In Mohd. Arif, this Court took note of the irreversible nature of the death penalty and of the possibility of two judicial minds reaching differing conclusions on the question of a case being appropriate for the award of the death penalty. The judgment of the majority allowed the right to oral hearing in review for cases involving death penalty:

[…] death sentence cases are a distinct category of cases altogether. Quite apart from Article 134 of the Constitution granting an automatic right of appeal to the Supreme Court in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically *Ed. Note : Pagination is as per the original judgment. 1 2014 (9) SCC 737 B C D E F G H SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1025 opposed to each other. Adverting first to the second factor mentioned above, it is well known that the basic principle behind returning the verdict of death sentence is that it has to be awarded in the rarest of rare cases. There may be aggravating as well as mitigating circumstances which are to be examined by the Court. At the same time, it is not possible to lay down the principles to determine as to which case would fall in the category of rarest of rare cases, justifying the death sentence. It is not even easy to mention precisely the parameters or aggravating/mitigating circumstances which should be kept in mind while arriving at such a question. Though attempts are made by Judges in various cases to state such circumstances, they remain illustrative only.

[…] A sentence is a compound of many factors, including the nature of the offence as well as the circumstances extenuating or aggravating the offence. A large number of aggravating circumstances and mitigating circumstances have been pointed out in Bachan Singh v. State of Punjab, SCC at pp. 749-50, paras 202 & 206, that a Judge should take into account when awarding the death sentence. Again, as pointed out above, apart from the fact that these lists are only illustrative, as clarified in Bachan Singh itself, different judicially trained minds can apply different aggravating and mitigating circumstances to ultimately arrive at a conclusion, on considering all relevant factors that the death penalty may or may not be awarded in any given case. Experience based on judicial decisions touching upon this aspect amply demonstrate such a divergent approach being taken. Though, it is not necessary to dwell upon this aspect elaborately, at the same time, it needs to be emphasised that when on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that when a convict who has suffered the sentence of death and files a review petition, the necessity of oral hearing in such a review petition becomes an integral part of “reasonable procedure”. A B C D E F G (emphasis supplied) H 1026 SUPREME COURT REPORTS [2023] 5 S.C.R. A B C D E F G

A recent study by Project 39A examined all the judgments involving a sentence of death delivered by the Supreme Court between 2007 and 2021 as part of which it analysed the exercise of the review jurisdiction in capital cases.2 It noted that, during the period covered by the study, before the decision in Mohd. Arif, 14 review petitions were dismissed by circulation and the capital punishment was confirmed in all of them. Out of these, 13 were re-opened in view of the judgment which resulted in only 4 re-confirmations of the death penalty. On the other hand, 7 judgments resulted in commutation of death sentences, 1 in acquittal and 1 case being abated due to the death of the prisoner. In view of the above data, the impact of the oral hearing of review petitions, due to the judgment in Mohd. Arif leading to a change in the outcome of a death penalty confirmation is evident.

The Court in Mohd. Arif, however, was not persuaded by the argument of involving two additional judges beyond the judges who had heard the original appeal during the hearing of the review petition. It also held that a review must be ordinarily heard by the same bench which originally heard the criminal appeal. It had noted that:

Henceforth, in all cases in which death sentence has been awarded by the High Court in appeals pending before the Supreme Court, only a bench of three Hon’ble Judges will hear the same. This is for the reason that at least three judicially trained minds need to apply their minds at the final stage of the journey of a convict on death row, given the vagaries of the sentencing procedure outlined above. At present, we are not persuaded to have a minimum of 5 learned Judges hear all death sentence cases. Further, […] a review is ordinarily to be heard only by the same bench which originally heard the criminal appeal. This is obviously for the reason that in order that a review succeeds, errors apparent on the record have to be found. It is axiomatic that the same learned Judges alleged to have committed the error be called upon now to rectify such error. We, therefore, turn down [the…] plea that two additional Judges be added at the review stage in death sentence cases. (emphasis supplied) 2Exercise of Review Jurisdiction in Capital Cases in DEATH PENALTY AND THE INDIAN SUPREME COURT (2007-2021), Project 39A, National Law University Delhi (2022). H SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1027

The data analysed by Project 39A indicates that it is not merely the oral hearing of review petitions that has changed the outcomes. There may also be a correlation between the ultimate outcome changing and different judges being involved as part of the review process instead of the same judges who had originally decided the appeal. Post Mohd. Arif, this happens when the judges who were members of the original bench have demitted office by the time the open court review comes for hearing. The data involves the 13 review cases re-opened and re-decided post Mohd. Arif after an oral hearing as well as 10 fresh review cases which were decided post Mohd. Arif. Out of 13 post Mohd. Arif cases which were re-opened, we have already noted that only 4 led to re- confirmation of the award of the death penalty, while in 7 cases the sentence was commuted to life imprisonment, 1 resulted in an acquittal and 1 stood abated. Out of the 10 fresh review cases, in 7 the death sentence was confirmed while in 3 the sentence was commuted.

In the cases where the sentence of death was commuted to life imprisonment, i.e. 7 cases from the first lot of 13 re-opened review cases and 3 cases from the second lot of 10 fresh review cases, all of the benches in review were of a different composition from the bench that decided the appeal. The 1 case which resulted in acquittal also had a different bench in review from the one in appeal. On the other hand, in the 11 cases which re-confirmed the death sentence, 7 benches had a composition of one or all the judges being the same as the bench that decided the appeal. The report notes that: The stage of review is rendered almost superfluous for the purpose envisaged by the majority, i.e., a further reconsideration of a death sentence, when the same bench (as in criminal appeal) is called upon to decide the review petition. This is in fact demonstrated by the data. As predicted by Justice Chelameswar, when heard by the same bench as the appeal, review petitions resulted in the death sentence being maintained. 4 out of 11 confirmation judgments rendered at the stage of review had the same bench. While the remaining 7 confirmation judgments in review were rendered by benches of different composition, it is relevant to note that in 1 of these judgments one judge was common to both the benches that decided the review and the appeal, and in yet another, two judges were common to both benches. On the other hand, all of the 10 judgments that resulted in commutation at the review stage, A B C D E F G H 1028 SUPREME COURT REPORTS [2023] 5 S.C.R. were rendered by benches having a different composition from the bench that decided the appeal. Therefore, the data suggests that a review petition filed within 30 days of the judgment rendered in appeal, decided by the same bench, will not demonstrate considerable differences in approaches or outcome, unlike those decided by a different bench. (emphasis supplied)

While the above data is not conclusive and the correlation may not necessarily equate to causation, we find it appropriate to mention as the present case is also one of those being re-opened and re-heard as a result of the decision in Mohd. Arif. We clarify by way of abundant caution that being both a smaller bench and having not been called upon to consider the impact of different judges sitting in the review of an appeal confirming the death sentence, we are not deciding on the merits of the proposition. B. Background

In view of the judgment in Mohd. Arif, the order dated 20 March 2013 in the present case dismissing the review petition through circulation was recalled and this review petition was heard in open court.

The petitioner was accused of kidnapping and murdering a 7- year-old child. The petitioner is alleged to have picked up the victim while he was returning from school in the school van on 27 July 2009. Prosecution witnesses testified to the petitioner having picked up the victim on his motorbike.

Due to the victim’s absence, his mother attempted to find his whereabouts and was informed of the above sequence of events by one of the witnesses. Accordingly, she proceeded to register a complaint at Police Station, Kammapuram on the same date. On the same night, she also received a call on her mobile phone from the petitioner, demanding a ransom of Rs. 5 lakhs for the release of the victim. Further, another ransom call was made on the succeeding day from a telephone booth. One of the witnesses is the individual who runs the booth and has testified that the petitioner made a call enquiring regarding the payment of money.

On 30 July 2009 the police raided the house of the petitioner and arrested him along with a co-accused who was later acquitted. The petitioner made confessional statements on the basis of which three mobile phone sets, two of which had SIM cards, were recovered. The A B C D E F G H SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1029 petitioner confessed to strangling the deceased, putting his dead body in a gunny bag and throwing it in the Meerankulam tank. The body of the deceased was recovered from the tank on the basis of the confessional statement.

On the basis of the investigation, the petitioner was charged under Sections 364A, 302 and 201 of the Indian Penal Code.3 The trial was committed to the Court of the Sessions Judge on 30 July 2010. The Sessions Judge convicted the petitioner for the offences with which he was charged and sentenced him to (i) death with a fine of Rs.1000 for the offence under section 364A IPC, (ii) death with a fine of Rs.1000 for the offence under section 302 IPC; and (ii) rigorous imprisonment for seven years and a fine of Rs.1000 for the offence under section 201 IPC. The co-accused was acquitted of all the offences.

The petitioner’s appeal was dismissed by the High Court of Judicature at Madras by a judgment dated 30 September 2010. The High Court confirmed both the conviction and the award of the death sentence.

This Court dismissed the appeal of the petitioner and confirmed the judgment of the Madras High Court on 5 February 2013. Both the High Court and this Court entered into a detailed appreciation of facts before confirming the conviction. C. Scope of Review Jurisdiction

Article 137 of the Constitution states that the Supreme Court has the power to review any judgment pronounced by it subject to provisions of law made by the Parliament or any rules under Article 145. The Supreme Court Rules 20134 have been framed under Article 145 of the Constitution. Order XLVII Rule 1of the 2013 Rules provides that the Court may review its own judgment 16. or order but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII Rule 1 of the Code of Civil Procedure 1908, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

In Mofil Khan v State of Jharkhand5,a three judge Bench of this Court while discussing the scope of the power of review held that: 3 “IPC” 4 “2013 Rules” 5 2021 SCC OnLineSC 1136 A B C D E F G H 1030 SUPREME COURT REPORTS [2023] 5 S.C.R. A B C D E F G H

2. […] Review is not rehearing of the appeal all over again and to maintain a review petition, it has to be shown that there has been a miscarriage of justice (See: Suthendraraja v. State). An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review (See: Kamlesh Verma v. Mayavati). An applicant cannot be allowed to reargue the appeal in an application for review on the grounds that were urged at the time of hearing of the appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice. D. Error Apparent on the Face of the Record? D.1 Submissions of Counsel

We have heard the counsel for the petitioner and for the State of Tamil Nadu. The counsel for the petitioner has submitted that the following errors are apparent on the face of the record and call for a review of the judgment dismissing the appeal: a. b. c. d. There is no proof that the phone number through which the ransom calls were allegedly made by the petitioner i.e. the number ending with XXX5961, belongs to the petitioner; That the call detail records show that the above-mentioned number is registered with one individual with residence in Alathur, Palakkad whom the petitioner has no connection with; That the 15-digit IMEI number for the cell phone, allegedly belonging to the petitioner containing the SIM with mobile number ending with XXX5961, mentioned in the seizure memo differs from the IMEI number mentioned in the call detail record; There is no evidence that the number on which the ransom call was allegedly made to PW1 (mother of the deceased),i.e. the number ending with XXX847, belongs to PW1; SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1031 e. f. PW1 has not stated that calls were made to her on 28 July 2009 and the testimony of PW16, the operator of the phone booth through which the call was made, cannot be relied upon; and The certificate under Section 65B of the Indian Evidence Act 18726 for the call detail records was not furnished.

The counsel for the State of Tamil Nadu strongly resisted the submissions which were urged by the Petitioner. The counsel submitted that the above grounds do not amount to errors apparent on the face of the record and do not meet the standard for re-appreciating evidence by this Court in review jurisdiction in the face of concurrent findings of the Trial Court, the High Court and this Court. The counsel also took us through the relevant exhibits and statements of prosecution witnesses to counter the grounds raised by the petitioner on merits. D.2. Analysis

We are in agreement with the counsel for the State of Tamil Nadu. The grounds which have been raised by the petitioner have already been dealt with by the courts which have arrived at concurrent findings recording the guilt of the petitioner. Further, the case of the prosecution is not founded only on the alleged calls for ransom but on consistent interlinked evidence as both the High Court and Supreme Court found in their judgments.

Regardless, we consider it appropriate to deal with the contentions of the petitioner.

The petitioner has alleged that the number through which the ransom call was allegedly made did not belong to him. However, on the basis of his statement of 30 July 2009, the cell phone with the SIM for the mobile number ending with XXX5961 was seized from the petitioner along with 2 other cell phones, the motorbike on which he had kidnapped the victim as well as the victim’s school bag.

Similarly, the contention based on the difference in the IMEI number recorded in the seizure memo and the call detail records does not affect the prosecution’s case for the following reason. The difference in the IMEI number recorded in the seizure memo and the call detail 6 “IEA” A B C D E F G H 1032 SUPREME COURT REPORTS [2023] 5 S.C.R. A B C D E F G H record pertains to the last digit of the 15-digit IMEI number. Every device has a unique IMEI number identifying the brand owner in the model. The first 8 digits are the Type Allocation Code (TAC) digits of which the initial 2 digits identify the reporting body and the next 6 identify the brand owner and device model allocated by the reporting body. The next 6 digits are the unique serial number assigned to individual devices by the manufacturer.7

These 14 digits in the petitioner’s case match in both the seizure memo and the call detail record. The last digit in the IMEI number is the ‘Luhn check digit’ based on a function of the other digits using an algorithm. Technically, the last digit, which is the only digit that is different in the seizure memo and the call detail record, can be calculated through the algorithm on the basis of the first 14 digits which are the same in both the documents. As the last digit of an IMEI number is a function of the first 14 digits, as long as the first 14 digits are a match, it can only lead to one unique device. Accordingly, it can be conclusively said that a difference in only the last digit of the IMEI number cannot imply that it represents the IMEI number of a separate device. Therefore, the difference in the last digit of the IMEI number can reasonably be assumed to be a typographical error and does not raise a doubt in the prosecution’s case.

The arguments regarding non-verification of PW1’s number, non-confirmation with PW1 regarding a call received on the subsequent day as claimed by PW16 have been raised at a belated stage.

PW8 has stated in her testimony that the petitioner called her to enquire regarding the phone number of PW1 and she told him to cut the phone and call again so she can retrieve the number and provide the same, as she did on the second call. PW1 has also testified that she received the call for ransom at about 9:30PM. It was upon the petitioner, at the stage of cross-examination of PW1 to raise questions regarding the number ending with XXX847 belonging to her or regarding the call alleged to have been made by the petitioner on 28 July 2009 mentioned by PW16.

Finally, the petitioner has argued that the CDRs cannot be relied upon due to the lack of production of the Section 65B certificate. 7 GSMA TAC Allocation and IMEI Programming Rules for Device Brand Owners and Manufacturers, Training Guide (February 2018 v1.0). SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1033 The call detail records were verified in the testimony of the Legal Officer of Vodafone, PW11, who himself produced the documents from the computer. He has in his cross-examination specifically corroborated the details of the calls made between the petitioner and PW1 and PW8 (from whom the number of PW1 was received after enquiring about it during the call by petitioner). The call detail records of the mobile number ending with XXX5961 confirm that two calls were made to PW8 at 9:22PM and 9:25PM on 27 July 2009. Immediately after this he called on the number ending with XXX847 at 9:39PM. However, admittedly the certificate mentioned under Section 65B of the IEA was not produced.

Section 65B was inserted in the IEA along with various other amendments by the Information Technology Act 20008 which took into account digital evidence. Section 65B provides for the admissibility of electronic records.

29. Section 65B of the IEA is reproduced below: electronic “65-B. Admissibility of 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 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 8 “IT Act” A B C D E F G H 1034 SUPREME COURT REPORTS [2023] 5 S.C.R. A B C D E F G H 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; (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 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, SUNDAR @ SUNDARRAJAN v.

STATE BY INSPECTOR OF POLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1035 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. 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.”

30. The petitioner has relied upon the judgment of this court in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal9 which reiterated the dictum in the decision in Anvar P.V. v P.K. Basheer10 requiring mandatory compliance with Section 65B of the IEA.

One of the earliest decisions on the provision was of a two judge bench of this Court in State (NCT of Delhi) v Navjot Sandhu11 where the Court held that Section 65B was only one of the provisions through which secondary evidence by way of electronic record could be